INTRODUCTION WHAT IS CRIME

It is problematic when looking for a concise definition of crime. Many scholars and jurists have defined
crimes in the way they understand it.

1. Granville Williams: He defined crime as “a legal wrong that can be followed by criminal proceedings
which may result in punishment”.

2. Blackstone: He also defined crime as “an act committed or omitted in violation of a public law
forbidden or commanding it”.

Defects; According to Twumasi, this definition suffers from obscurity and equivocation. His problem is
with the use of the phrase “public law”. He argued that public law, as used in the definition, is so vague
since it includes criminal law, constitutional law and administrative law. However,breaches in
constitutional law and administrative law may not be labeled as crime. For example, all administrative
bodies are to be guided by article 23 in decision making. Hence, if this article is breached, it will only
result in civil proceedings where the court may remedy the breach. No punishment is metered out to
the “disobedient” administrative body or personnel.

3. Prof. Kenny: he defined crime as “… wrongs whose sanction is punitive and is remissible by the crown
if at all.

4. Twumasi also defines crime as “… a term for any act or omission which is in contravention of the rules
of conduct approved by the community and which the community as a party on the one side, seeks
through its appropriate legal means to suppress by imposing a suitable punishment on the offender or
dealing with him in any other legally recognized manner

5. Mensah Bonsu : “ the general notion of crime encapsulates any act which is expressly prohibited by a
statute in force, or by the common law with penal consequences.

Other Case Law Definition

6. In Amand v Home Secretary, Lord Wright defined crime as “. . . the cause or matter . . . which, if
carried to its conclusion, might result in the conviction of persons charged and in the sentence of some
punishment, such as imprisonment or fine . . .”

7. Also in Clifford v O’ Sullivan (1921) AC 570, Viscount Cave pronounced that “CRIME” is an offence
against the public law which has a prescribed punishment for the offence under it. Statutory Definitions
8. Article 19(11) of the 1992 Constitution says that “ 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”

9. Section 1 of the Criminal Offences Act defines crime as “ any act punisheable by death, or
imprisonment or fine Out of the various definitions, there are two main points that keep on sufficing;

 The act must be prohibited by statute.

 The statute should also prescribe punishment for its breach.

TYPES OR CLASSIFICATION OF OFFENCES

1. Offences punishable by death. In Ghana, offences punishable by death are, high treason, treason,
murder (section 46) of the Criminal Offences Act

2. Felonies:

 First degree felony eg. Under section 8 of the criminal offences act, attempted murder is a first degree
felony. Also rape is classified as a first degree felony.

 Second degree felony eg. Stealing, is an offence punishable by a term of imprisonment not exceeding
ten years.

3 Misdemeanors. This is an offence triable by summery proceedings and punishable by a term of

imprisonment not exceeding 3 years. For example, offences against public order such as acts tending to
disturb public peace (i.e. fighting etc.)

4 Offences punishable by fine Minor offences such as violation of the Road Traffic Ordinance.

BURDEN OF PROOF

The burden of proof lies with the prosecution to proof beyond reasonable doubt that the offence being
tried was carried out by the accused charged with the offence. The only duty of the accused is to throw
a little doubt in the prosecution’s case.

FUNCTION OF CRIMINAL LAW

 It is regulatory in nature and therefore seeks to maintain a certain kind of behavioral pattern

 It protects those who are weak physically

 Protects public morality

DISTINCTION BETWEEN CRIMES AND CIVIL WRONG

 Crime is an injury to society while civil wrong is an injury to a person or groups of persons.
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 The state prosecutes crimes whereas in civil wrong, an individual or group of individuals are
responsible to seek redress at a law court

 Crime may not have an identifiable victim but civil wrong has an identifiable victim

 The punishment for crime is penal such as a term of imprisonment or even death sentence whereas in
civil wrong it is restitutory or compensatory
MORALITY AND CRIMINAL LAW.

It can be noted that moral issues from a very long time have featured in the criminal law of most
countries. For example, most countries have incorporated the Ten Commandments into their penal
codes. This is so because the law itself is a social institution. Now to the question: what should be the
attitude of the law towards moralistic legislation? There are three competing views

1. Criminal law should ensure a moral code

This view was championed by Lord Devlin, who in extreme terms expressed “the penal code is to
enforce a moral code and nothing else”. It is submitted that though there are many laws which seem to
have moral components, there are however others which have nothing to do with morality, for example,
sedition and civil wrongs. A contemporary jurist, Lon Fuller supports Devlin but his contribution lies in
the due process of law. He spoke against retroactivity of criminal legislation and secret legislation. To
him, due process implies that laws must be properly promulgated and duly gazetted. To him for a law to
become valid, it must comply with the due process of law. The problem here is that, there are some
laws that passed through due process before they were promulgated but has been used mischievously
by some politicians and people in power. An example is the Preventive Detention Act of 1962 which was
allegedly used by Nkrumah to jail his political opponents.

2. The second school of thought was spearheaded by HLA Hart of Oxford. To him, “the only acceptable
ground for moral legislation is to ensure the survival of the state”. Because of this, he is of the view that
certain social arrangements may be made, including law. Principally championed by Stuart Mill, moral
legislation may be necessary to prevent harm to others. In preventing harm to others many offences
have been identified such as assault, stealing, destruction of property, etc. it must be noted that some
offences do not fall within this category or description. For example, attempted suicide and also to assist
a suicide. The English has for example decided to punish only public immorality (the Wolfenden report)
which is not free from difficulty because of HIV. Finally, the problem that comes with the enforcement of
moral laws, for example, bigamy. Society’s attitude is that of contempt, not compliance.

3. The third view is that of the analytical positivist, John Austin and Prof. Hans Kelson who expressed
their views differently.

 Austin is of the view that law is a series of “commands” addressed by the Sovereign to his subjects
ordering them to do or refrain from doing certain acts on the pain of purnishment.

 In his theory of law, for Hans Kelson, no theory of justice can form part of the pure theory of law. To
him, law must not be contaminated with politics, ethics, sociology and history. It is submitted that this
view of law is not only untenable but also unrealistic. According to Prof. EH Ofori Amankwah in his book,
‘Outline of Criminal Law Lectures’ “Kelson’s theory of norms and the separation of “IS” from “OUGHT”
seems divorced from human considerations”. No wonder Prof Graham Hughes calls it “a barren legacy”

4. Finally, the “Volgeist” theory of Von Savigny, and others of the historical school view law as a
conscious emanation of the will of the people
THE PRINCIPLE OF LEGALITY.

Lon Fuller’s suggestion that the law should pass through due process can be summerised into two
phrases;

 No citizen should be made to suffer any form of punishment, except it is authorized by law. (nulla
poenem sine lege)

 No conduct can be purnished as an offence until there is a law to that effect. (nullum crimen sine lege)
These phrases are premised upon the facts that

i. The criminal law is for the protection of the individual and not a trap, therefore, the act must be
prohibited by law so that people will know in advance what conduct or act may be considered unlawful
so that they can be able to fashion their conduct according to the dictates of the law. It can therefore be
said that the cumulative effect of these principles is to ensure certainty of the law hence, prohibiting
secret legislation and retro-activity. With this, if anyone falls foul of the law by being in breach, then the
criminal law comes in hence criminal law would not be a trap but a mechanism for preserving societal
standards.

ii. The criminal law should be prospective in other to keep with the rule of law which is enshrined in
many constitutions worldwide and inherent in any free and just society. In Ghana, the 1992 constitution
reflects this principle. Article 19(5) provides; A person shall not be charged with or held to be 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.

ORGANS FOR ADMINISTRATION OF CRIMINAL JUSTICE Several institutions share the responsibility of
administering criminal justice in Ghana. First, there is the ministry of justice led by the Attorney General
who is supported by the police when it comes to lesser crimes. The Attorney General has unlimited
power to institute, take over or even terminate proceedings begun by him or the police. Secondly, the
police as an institution have a duty to prevent crime by their wide powers of arrest, search and seizure.
These powers are not exercised only in relation to minor offences but even those instituted by the
Attorney General. There are also other institutions such as CEPS, BNI, CHRAJ, and SFO whose functions
are just like that of the police. Thirdly, we have the courts. The court system here includes tribunals of
various descriptions; including Court Martial, Police orderly proceedings etc. Here, judges and
magistrates are the embodiment of criminal justice when presiding in criminal proceedings. At the end
of the criminal justice, charged with the reformation of convicted persons is the Prison Service. Last but
not the least there is also the department of social welfare.
PUNISHMENT

Punishment is central to the notion of criminality. This means that at the end of a criminal process, some
form of sanction in the form of punishment is applied. Mensah-Bonsu defined criminal law as “. . . a
phenomenon that entails the infliction of suffering or some other unpleasant consequence by an agency
in the position of authority on an offender for an offence, that is the doing of a prohibited act.”

Centrality of Punishment to the Notion of Criminality and Purpose/Aims of Punishment Various ideas
have been put forward as justification for the imposition of punishment.

 To uphold the majesty of the law, since the law would be a toothless bulldog without its chief weapon

 It reaffirms societal standards

 It gives reason to obey the rules

 One of the major justifications for the imposition of punishment is that the end of justice is served
when a person gets what the society considered to be his or her just deserts. It is believed that once the
offender is punished, the law is vindicated and the force and relevance of the law is affirmed. Those who
look to the law for protection receives assurance of its efficacy and potency, and the majesty of the law
is affirmed.

Theories of Punishment

There are two main theories of punishments and these are retribution and utilitarianism. Utilitarianism
has been sub divided into disablement, deterrence, rehabilitation and reformation/ education, and
atonement.

1. Retribution This theory of punishment has been sub-divided into two main theories;

 That the state must avenge the offence, which is, paying the offender in his own coin. This theory is
mainly founded on revenge. The Mosaic Law reflects this point in the maxim ‘an eye for an eye, a tooth
for a tooth’.

 The second is a more respectable view. Here, retribution must fit the crime. Most systems of justice
adhere to this view because there are different degrees of punishment for different degrees of criminal
activity. This system reflects the communities’ values, for example, murder is punished more severely
than stealing.

2. Utilitarianism This theory was espoused by Jeremy Bentham. It is essentially to the effect that laws
must ensure the greatest good for the greatest number of people. For this reason it is said that
punishment should not be an end in itself but a means to an end. When punishment reduces crime
because people realize that offenders will be punished, it is a useful end. The concept of deterrence is
therefore very prominent in the arsenal of utilitarian

Types
 Deterrence Punishment should serve a deterrent purpose so as to indicate to the community that
certain conducts would not be entertained in the society. Deterrence operates in two different levels;
General deterrence and Specific deterrence.

 General deterrence When a convicted person is punished severely as an example to the society in
general, the hope is that, the fear of the sanction would prevent like-minded people from engaging in
such activity. Deterrent sentences tend to be too severe and sometimes unfair but utilitarians have
argued that it is better to sacrifice an individual to preserve the happiness of the greater majority than
to protect that individual at the cost of failing to teach the rest of the community the necessary lessons.
CASE; KWASHIE V REPUBLIC (1971) 1 GLR 488, CA wherein collaboration with two other police officers,
the first appellant used his office as a police detective to seize a large quantity of goods that had been
smuggled into the country. Rather than sending the goods to the police station they were sent to the
private house of one of the accomplices for the purpose of selling them for the benefit of all who
participated. The appellants and their accomplices were found guilty of stealing contrary to section 124
of Act 29 and were each sentenced to seven years' imprisonment with hard labour. Counsel for the first
appellant argued that the sentence was excessive, submitting: that the trial judge gave no reasons for
the severe sentence that he passed on the first appellant; that having regard to the value of the goods
stolen the sentence was excessive; that the first appellant was a first offender and ought to have been
more leniently dealt with and that the mere fact that the first appellant was a police officer was not by
itself a good enough reason for imposing an unusually harsh sentence. In dismissing their appeal, the
Court of Appeal held that since the offence was of a very grave nature, the sentence must not only be
punitive but it must be deterrent or exemplary in order to mark the disapproval of society of such
conduct by police officers. When a court decides to impose a deterrent sentence the value of the
subject-matter of the charge and the good record of the accused become irrelevant.

 Specific deterrence

An individual may be punished severely to discourage him or her from ever committing a like offence.
The effectiveness of deterrence depends on three main factors;

i. The certainty of punishment

ii. The fact that the unpleasantness of penalty would far outweigh any advantage gained from the
offence, and

iii. Publicity.

 Rehabilitation/ reformation

Followers of utilitarian theory believe that punishment should first, show the individual the errors in his
or her ways and bringing about a positive change in the life of such individual so that the criminal life will
be dropped for a more decent one. Such change over require rehabilitating the individual. Rehabilitation
involves assisting an offender to drop the old and unproductive lifestyle for a new one different from it.
Rehabilitation is premised on the fact that whatever reforms are made would be unsuccessful if the
reason behind the unproductive and bad life style is not addressed. Efforts are therefore made to invest
the offenders with employable skills during the period of their incarceration so that when they come
out, they would have something better doing.
There are certain problems associated with tying rehabilitation to reformation.

 The tendency to increase the length of sentences since many skills can be acquired after an extensive
period of apprenticeship. Therefore those who serve short sentences cannot go through this useful
process before leaving.

 The poor aftercare service in the country. With this a person, a person who does not acquire such skills
whilst in prison is not likely to do so outside official control and supervision.

 Education This has a lot in common with deterrence and reformation. Education begins with the
sentence itself and then it can also be seen in the kind of prison programmmes that have been designed
for inmates, which includes literacy and vocational training.

PRINCIPLE OR ELEMENTS OF CRIMINAL LIABILITY

For there to be a conduct punishable by law, there must be the act or omission which is forbidden by
law and the intent or evil thought. For there to be punishment, these two must come together for no
matter ones evil intention, if it is not manifested in conduct, it cannot be punished. There are two main
elements of criminal liability;

 The physical element, which is, the prohibited act or omission which is known in latin as ‘actus reus’

 The mental element, with which the prohibited act is done (the intent), also known in latin as the
‘mens rea’.

ACTUS REUS (THE PHYSICAL ELEMENT)

Criminal law does not punish evil thought only; a person must do an act that is prohibited by law in
other to be guilty of an offence or crime. Actus reus can be defined as a physical conduct which is
forbidden by the crime charged; that is, the elements which are “external” to the accused person’s
thoughts and intentions. There are three components of actus reus

 The “act”, which involves physical exertion on the part of the individual which results in the actus reus.
This normally involves ‘doing’ something that is forbidden.

 The “act” which can also be that of an omission, that is, failing to act in an approved way of conduct.
For example, when one fails to stop when the traffic light is red. Whenever an act is forbidden, any
omission which brings about the same result may also be punished. For example, manslaughter may be
committed not only by violence to the person, but also by withholding the necessary supplies.
Under the Criminal Offences Act, sections 77, 78-81provides certain categories of omissions. The
sections mentioned above states;

Section 78—Cases in which a Person is Under Duty to Prevent Harm to another Person. A person is
under a duty for preventing harm to another person— (a) if the first mentioned person is under a duty,
as mentioned in section 79 to supply a person with the necessaries of health and life; or (b) if the first
mentioned person is otherwise under a duty, by virtue of an enactment, or by virtue of any office or
employment, or by virtue of a lawful order of any Court or person, or by virtue of any agreement or
undertaking, to do any act for the purpose of averting harm from a person, whether ascertained or
unascertained.

Section 79—Cases of Duty to give another Person Access to the Necessaries of Health and Life.

(1) Where there is a duty to give access to the necessaries of health and life,

(a) a spouse is under a duty to give access to the necessaries of health and life to the other spouse who
is actually under the control of the spouse;

(b) a parent is under a duty to give access to the necessaries of health and life to the parent’s child
actually under the control of the parent, which child is not of an age and capacity as to be able to obtain
those necessaries;

(c) a guardian of a child is under a duty to give access to the necessaries of health and life to the child
actually under the control of the guardian.

(2) A woman, who is delivered of a child; a. is under a duty, so far as she is able, to summon assistance
and to do any other acts necessary and reasonable for preserving the child from harm by exposure,
exhaustion, or otherwise by reason of its condition as a newly-born child. b. is under a duty, so far as she
is able, to support and take reasonable care of the child, which is under her control or in her care or
charge, until it can safely be weaned.

(3) A person who, by virtue of office as a gaoler, relieving officer, or otherwise, or by reason of the
provisions of any enactment is bound to supply any of the necessaries of health and life to a person, is
under a duty to supply them accordingly.

(4) A person who wrongfully imprisons another person is under a duty to supply that person with the
necessaries of health and life.

(5) 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, apprentice, or otherwise, is under a duty to supply them
accordingly.

(6) Where a person is under a duty expressed in this section and has not the means of performing the
duty, and there is any person or public authority bound to furnish that person with the means, that
person is under a duty to take reasonable steps for obtaining the means from that other person or
authority.

(7) Where a person, under a duty to supply any of the necessaries of health and life to another person,
lawfully charges the wife, servant of that person, or any other person with the supply of those
necessaries, and furnishes the means for that purpose, the wife, servant, or other person so charged is
under a duty to supply them accordingly.

(8) for the purpose of this section “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.

Illustration Subsection (6).

The father or mother of a child, who does not have the means of providing the child with food or
medical attendance, is bound to seek assistance from any officer appointed to relieve the poor, but is
not bound to beg from private charity.

Section 80—Explanations as to Office etc.

(1) Where, under section 78 or 79, a duty is constituted by an office, employment, agreement, or
undertaking, such a 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 that an agreement or
undertaking with respect to another person

(2) A person is excused from liability for failure to discharge a duty within the meaning of section 78 or
79 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.

Illustrations

Subsection (1)

(a) A deputy gaoler, even though unlawfully appointed, is under all the duties of a gaoler in relation to
his prisoners.

(b) A master is under all the duties of a master in relation to his apprentice, even though the articles of
apprenticeship are void.

Section 81—Exceptions from General Provision as to Causing an Event. The general provisions of Part I
with respect to causing an event are, in their application to the matters of this Chapter, subject to the
following explanations and modifications, namely—

(a) 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
his age or physical or mental state, or by reason of control by the accused person, could not by
reasonable exertion have avoided the harm;

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

(c) the harm which a person suffers by execution of a sentence of a Court in consequence 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
(d) except as in this section expressly provided, a person is not excused from liability to punishment for
causing harm to another person, on the ground that the other person personally, by his own trespass,
negligence, act, or omission, contributed to causing the harm.

Criminal liability for failing to act is possible but far more less than liability for a positive act. Liability will
arise only if the law defines the situation as one where the accused was obliged to act and these can be
done in two main ways;

1. Where there is a specific statutory provision

Under this, it is not usually necessary to prove that any particular harmful consequence resulted from
the omission to act.

2. Common Law

The common law has also provided a duty to act based on a wide view of social responsibilities. The
concept of duty has, therefore, been narrowly defined and has been almost entirely limited to failing to
act to prevent physical harm to people or property. A duty may arise in the following situations;

a. Blood or other close relationship (special relationship).

In R V MACDONALD (1904) ST REP Q 151, Husband and wife brought into the marriage a girl who was an
issue of a previous marriage by the husband. Soon, the couple decided to leave the city for countryside,
taking the girl alone with them. She was altogether neglected, she was given very little food and no
worm clothing for the winter, she had no friends or companions in the area either, and her body was
infested with sores all over which the couple failed to treat. In spite of all these, however, she was
expected to do the laundry, wash the dishes, scrub the floor and even bathe and feed dogs. In that state
of utter neglect, her condition became worse and she died. The couple was duly convicted for their
offence amounted to child abandonment bordering on a reckless disregard for human value.

b. Assumption of responsibility (a contract)

If the accused, expressly or impliedly, takes it upon himself to look after someone unable to care for
themselves, whether by reason of age or infirmity, he will be under a duty to continue to act to prevent
physical harm-at least to the extent of alerting effectively the relevant authorities. In R V PITTWOOD, the
defendant was employed by the railways as a gateman and he was required to shut the gates whenever
the train approaches in order to protect society. On a particular occasion, he abandoned his post and as
a result the train killed a pedestrian. He was held guilty of manslaughter. Also, in R V LOWE (1850) 3 C &
K 123, a railway engineer abandoned his post, leaving dangerous machinery which was switched on in
his absence by an unskilled hand. It was held that he was responsible for the resultant injury.

 Essentially, a sub-category of “assumption of responsibility” is that of a doctor-patient relationship.

There is no duty on doctors to treat people not within the scope of their responsibilities unless they
have voluntarily assumed such responsibility. Where a doctor is responsible for patient’s care,
exceptionally, she may discontinue treatment if “responsible and competent medical opinion” took the
view that it was not in the patient’s “best interest” to continue the treatment and care.  Another sub-
category of “assumption of responsibility” is contract. The court sometimes use a private duty owed in a
contract as the basis for a general criminal law duty to act where non-performance is likely to endanger
the public (see Pittwood and Instan).
3. Situations which cannot be determined before time but where, as chronicled Dr. Granville William,
duty may arise

MENS REA (THE MENTAL ELEMENT)

It is a basic principle of criminal law that a person ought not to be punished for an act or omission unless
it is accompanied by a guilty mind.

Strictly, mens rea means whatever state of mind an accused person must be proved to have according
to the definition of the crime charged. This entails some actual intention, knowledge or realization on
the part of the accused person, for example, intention to kill. In the criminal offences act, expressions
such as “knowingly”, “with intent”, “without reasonable excuse”, “dishonesty”, etc, reflects the
requirement of a mental element in most offences. Mens rea is also used to embrace elements such as
negligence.

Purpose of Requiring Mens Rea

This requirement dates back to the days where criminal law was almost synonymous with moral law and
this is to the effect that a person could not be guilty of an offence unless he or she knew that the act was
wrong

Is Mens Rea Required Always

Mens rea is not always required before one can be guilty of an offence. There is a category of offences
known as offences of strict liability where the accused state of mind is irrelevant. For example, where
the law, on the pain of punishment, prohibits that a person should be found in a certain place at a
certain time period, and there is a violation, there would be little interest in whether one had a good
reason for being there.

Is Mens Rea the Same for all Offences

It is not the least suggested that mens rea for all crimes are the same. The term “mens rea” is used to
denote that the definition of every crime must be presumed to contain a mental element. In some
situation, it is the intentional element that is forbidden, and in others, a dishonest intent is required.
Words such as “intentionally”, “knowingly”, “dishonesty”, “willfully”, “maliciously” all imports all import
the idea of awareness in doing a wrong thing.

Mens rea is not the same as motive so that proof of motive would not necessarily establish mens rea,
and vice versa. The two concepts “reinforce, and lend colour and strength to each other.” To
P.K.Twumasi, there is no burden on the prosecution to prove the motive behind a person’s criminal act,
even though they may; and where the prosecution have proved the necessary intent in a crime, motive
is irrelevant and affords no defence, however innocent or praise worthy it may be.

Historical Development of Mens Rea in English Criminal Law.

Early English criminal law disregarded mens rea as a component of crime. In those days, and perhaps
well into the nineteenth century, most offences were of strict liability. In R v Prince, the accused was
charged with the abduction of a young girl below the marriageable age from the custody and possession
of her parents. His defence that he thought the girl was of age because of her physical size was rejected
by the courts. With the passage of time, petitions were addressed to the Lord Chancellor to tamper
justice with mercy since he was the keeper of the King’s conscience. By the time of Lord Kenyon, it was
declared by the court in a case called Fowler v Paget that it is a principle of natural justice and of English
law that no conduct may amount to crime unless it is backed by a blameworthy frame of mind. Though
it was an overstatement, it dictated later developments which placed high premium on the mental
element.

Forms of Mens Rea

 Intention (Knowledge, Voluntariness, dishonesty)

 Recklessness or rashness

 Negligence

1. Intent. Intentional conduct is the commonest form of mens rea. Section 11 of the Criminal Offences
Act sets out what “intent” means. The said section provides; Section 11—Provisions Relating to Intent.
(1) where a person does an act causing or contributing to cause an event, that person intends to cause
that event, within the meaning of this Act, although in fact or in the belief of that person or both in fact
and also in that belief, the act is unlikely to cause or to contribute to cause the event.

(2) a person who does an act voluntarily, believing that it will probably cause or contribute to cause an
event, intends to cause that event, within the meaning of this Act, although that person does not do the
act for the purpose of causing or of contributing to cause the event.

(3) a person who does an act of a kind or in such a manner as that, if reasonable caution and observation
had been used, it would appear to that person a. that the act would probably cause or contribute to
cause an event, or b. that there would be great risk of the act causing or contributing to cause an event,
intends, for the purpose of this section, to cause that event until it is shown 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.

(4) a person who, intending to cause an event with respect to one or any of several persons or things, or
to an indeterminate person or thing as may happen to be affected by the event, causes the event with
respect to such person or thing, and is liable in the same manner as if he had intention has been to
cause the event with respect to that person or thing.

(5) a person does an act with intent to assault, harm, kill, or cause any other event to a particular
person, which act takes effect, whether completely or incompletely, against a different person, is liable
to be tried and punished as if his intent had been directed against that different person;

(6) for the purposes of subsection (5), a ground of defence or extenuation is admissible on behalf of the
accused person which would have been admissible if the act had taken effect against the person in
respect of whom, or the thing in respect of which, the accused person intended it to take effect.

Illustrations

Subsection (1).
A. discharges a gun for the purpose of shooting B., and actually hits him. It is immaterial that B. was at
such a distance, or in such a situation that the shot would most probably miss B.

Subsection (2).

A., for the purpose of causing the miscarriage of B., administers to her a medicine which he knows to be
dangerous to life. It is immaterial that he earnestly desires to avoid causing B.'s death, and uses every
precaution to avoid causing it.

Subsection (3).

A. discharges a gun among a crowd of persons, and one of them is shot. A. may be presumed to have
intended to cause harm, unless he can show that he had ground for believing that harm would not be
caused.

Subsection (4).

A., in the last illustration, is punishable as if he had purposed to cause the harm to the person to whom
it was in fact caused.

Subsection (5).

A. unlawfully strikes at B., but the blow happens to miss B. and to hit a constable. A is punishable as if he
had purposed to hit the constable. There are many forms of intent as captured in the Criminal Offences
Act (Act 29). These are;

i. Direct Intent: Section 11(1) of the Criminal Offences Act states; where a person does an act causing or
contributing to cause an event, that person intends to cause that event, within the meaning of this Act,
although in fact or in the belief of that person or both in fact and also in that belief, the act is unlikely to
cause or to contribute to cause the event.

What this section seem to say is that, when a person does an act that he or she desires to achieve a
certain effect, and the effect is achieved as a result of the act, then it can be said to have been directly
intended. CASE: SENE V THE REPUBLIC (1977) 1 GLR 434, CA where the deceased initiated an unlawful
fight with the first appellant. The second appellant threw a stone which caused injuries to the deceased.
The effect of the attack on both of the appellant caused the death of the deceased. The trial judge put
emphasis on who started the fight. It was held that this was a misdirection because the mere fact that
one states a fight does not necessarily show the intention to cause death.

Per Amissah JA, “This cannot be conducive to a clear understanding of the element of intent in a
homicide resulting from a fight. In the first place it is obsessed with who started the fight and the
distinction between murder and manslaughter is made to appear to depend on or originate from an
identification of this personality. But that, with all due respect, is not the criterion. The proper
consideration is whether from the circumstances it can be said that the person who killed had the
intention to cause death as distinct from a mere intention to fight. Such an intention may be inferred
from the instrument or weapon used in killing or the manner in which the harm from which death
results is inflicted. It ought not simply to be inferred from a consideration of who began the fight.”

ii. Oblique Intent

A person may engage in a conduct for a particular purpose although the means chosen may cause other
effects as well. Such undesired effects are still considered as a result of intentional conduct. Thus, where
an act achieves a consequence which though not desired, was foreseeable at the time the act was done,
the undesired consequence would still be considered intended. Section 11(2) of the Criminal Offences
Act states;

a person who does an act voluntarily, believing that it will probably cause or contribute to cause an
event, intends to cause that event, within the meaning of this Act, although that person does not do the
act for the purpose of causing or of contributing to cause the event.

CASE; R V QUAYE (JACK TOLLER) (1954) 14 WACA 488 where the appellant and two others were charged
with the murder of one Kwaku Amaka, an old man of approximately seventy years old. By a unanimous
decision of a jury, they were found guilty of murder and one of them, of manslaughter. In allowing the
appeal of No. 1 and dismissing those of No. 2 and No. 3, the court held that the degree of criminality
depends on the knowledge and consciousness on the part of the accused that death is likely to result
from what he does, that is, on whether or not he willfully incurred the risk of causing the death of
another person.

iii. Indeterminate (general) Intent. An accused person can be held to have formed the mens rea to cause
harm to a particular person if there is evidence that the person formed that intention in relation to a
general group of which the victim was a member. This intent is known as indeterminate or general
intent. Section 11(4) of the Criminal Offences Act states; a person who, intending to cause an event with
respect to one or any of several persons or things, or to an indeterminate person or thing as may
happen to be affected by the event, causes the event with respect to such person or thing, and is liable
in the same manner as if he had intention has been to cause the event with respect to that person or
thing.

CASE; R V GYAMFI (1960) GLR 45, CA where the appellant, threw a stone of a size “slightly larger than a
fist” into a crowd. The stone struck one of them and killed him. In the opinion of the doctor, death was
due to internal haemorrhage from a ruptured liver. The appellant was charged with murder. He was
convicted before Scott J. He appealed to the Court of Appeal.

In allowing the appeal and setting aside the conviction of murder and quashing the sentence of death
and substitute it for a conviction of manslaughter and a sentence of five years in hard labour, the court
of appeal, per Granville Sharp JA, held that there can be no doubt that the appellant caused the death of
Oppong by unlawful harm; but the question arising for further consideration was, " Was the act done in
the consciousness that it was likely to cause death?"

The appellant was one of the many persons in his following who threw stones. We are apprised of the
fact that at least forty of these were prosecuted for engaging in a riot, of whom twenty-one were
convicted, were acting with a common purpose, but in no instance was it suggested that the common
purpose was murder. We think that the learned judge oversimplified the matter when he inferred intent
to murder from the facts and circumstances, and we think that he was led into this error by the
somewhat perfunctory manner in which he considered the evidence as a whole

iv. Specific Intent

 The term refers to the second tier of intention that is formed when a particular result is desired. When
an act is intentionally done with a further intent that it should achieve a particular result, then the
accused had a specific intent to cause that particular results. Where a statute uses the expression “with
intent”, there is indicated a proof of intent. Recklessness in this context is insufficient for the purpose of
establishing specific intent, owing to the fact that the intent formed must be for a specific result. CASE; R
V STEANE (1947) 1 KB 997.See also sections 133(1) and 140 of the Criminal Offences Act

Section 133(1) of the Criminal Offences Act provides; A false pretence is a representation of the
existence of a state of facts made by a person, with the knowledge that the representation is false or
without the belief that it is true, and made with an intent to defraud.

Section 140 also provides

A clerk, a servant or public officer, or an officer of a partnership, company, or corporation, commits a

second degree felony who does any of the acts mentioned in paragraph (a) or (b), with intent to cause
or enable a person to be defrauded, or with intent to commit or to facilitate the commission, personally
or by any other person, of a criminal offence;

(a) conceals, injures, alters, or falsifies any book or an account kept by or belonging or entrusted to the
employers or to the partnership, company, or corporation; or entrusted to the officer, or to which the
officer has access, as an officer, or omits to make a full and true entry in an account of anything which
the officer is bound to enter in the account; or

(b) publishes an account, statement, or prospectus, relating to the affairs of the partnership, company,
or corporation, which the officer knows to be false in a material particular, shall be guilty of a second
degree felony.

v. Transferred Intent

A person, in targeting a particular individual to cause him harm may have his plan miscarry and a
completely different person may suffer that harm. In other words, the mens rea and actus reus may
occur separately. In strict accordance with the theory, such an act should not be an offence. The law will
therefore transfer the mens rea to the mens rea to the actus reus as it took effect upon the unintended
victim, and will therefore hold that the act is therefore a crime. This is refered to as “transferred intent”
or “transferred malice”. The Criminal Offences Act makes a provision for transferred intent in section
11(5), which provides;

a person does an act with intent to assault, harm, kill, or cause any other event to a particular person,
which act takes effect, whether completely or incompletely, against a different person, is liable to be
tried and punished as if his intent had been directed against that different person;

CASE; AMETEWEE V THE STATE (1964) GLR 551 where the appellant, a police officer who was on duty at
Flagstaff House fired three shots at the President. One of the shots hit and killed the body-guard of the
President. A pathologist's report confirmed that the deceased died from bullet wounds. On appeal
against his sentence to death, it was argued on his behalf that although the appellant fired at the
President, it would be irrational and illogical to suggest that he killed the deceased In dismissing the
appeal, the supreme court held that “… it would seem that the appellant was labouring under a
misapprehension that because his aim was to kill the President, if his bullet hit and killed the deceased
by mistake "it would be illogical to hold him responsible for the murder of the deceased." such a
contention is wrong and untenable and cannot be countenanced by our courts. As Darling J. said in R. v.
Gross1:

"If a person feloniously fires at another in such circumstances as would make the killing of that other
person murder, but by accident hits and kills a third person whom he never intended to hit at all, that is
murder. That has been laid down over and over again; there is plenty of authority for it."

Proof of Intent It is not easy to establish intent in a given situation especially when it is not direct intent.
Recklessness can be proved as the basis of intentional conduct where the act was such as to make any
reasonable person exercise some caution. The rebuttable presumption that a person intends the natural
and probable consequences of his or her act helps to eliminate the challenge of establishing intent in a
given situation, especially when it is not direct intent.

Section 11(3) of the Criminal Offences Act provides; a person who does an act of a kind or in such a
manner as that, if reasonable caution and observation had been used, it would appear to that person a.
that the act would probably cause or contribute to cause an event, or c. that there would be great risk of
the act causing or contributing to cause an event, intends, for the purpose of this section, to cause that
event until it is shown 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

CASE; REPUBLIC V ADEKURA (1984-86) GLR 113 where the appellant while manning a barrier as a
member of the Peoples Militia, shot at a moving vehicle at 5.30a.m. when the driver refused to obey an
order to stop. One of the bullets killed a passenger on the vehicle. He appealed against a conviction of
murder

In dismissing the appeal, the court of Appeal held that to shoot a round of bullets at a moving car at a
time when visibility is poor and limited, is a dangerous act. The act of the accused exposed the
occupants of the car to a serious risk of death, although his aim was only to immobilise the car. The
provision in section 11(3) which inure to exonerate an accused is predicated upon the fact that he had
used reasonable caution and observation but there was no such evidence of reasonableness in the act of
the appellant. The presumption is rebuttable by subjective evidence; the accused person would have to
show that in his or her particular case, he or she had no reason to expect that the consequences of the
act would be such as occurred.

See the case of AKORFUL V THE STATE (1963) 2 GLR 371 where the appellant heard someone trying to
force open his window at about 1.00 a.m. He got up, took his gun and went out to investigate. He did
not see anybody. A few moments later he saw someone walking in the dark. He shouted at the person,
but there was no answer. Thinking that the person was a thief he fired his gun towards the direction
where the person was coming from in order to scare him away. His shots hit and killed one Kofi
Buabeng, his brother-in-law. The appellant was charged with murder. He was the sole witness to the
incident. He was tried by a jury and convicted for murder.

The Supreme Court, in substituting for the verdict found by the jury in the Cape Coast Criminal Sessions,
a verdict of manslaughter and, in substitution for the sentence passed at the trial, we sentence the
appellant to seven years imprisonment with hard labour held that Before an accused person can be
convicted of murder it must be proved that he had a real or wicked intention to kill or that the
circumstances were such that he was aware that the result of his act would be death. Nowhere in the
trial judge’s summing-up did the learned trial judge refer to the evidence of the appellant's intention to
scare the thieves, which was the very core of the defence. There is in this case definite evidence which
negatived an actual intention to kill, and therefore we are unable to say that the jury, if the question had
been left to them with a proper direction, would necessarily have returned a verdict of murder; but we
think, however, that they must have inevitably found the accused guilty either of murder or of
manslaughter.

2. Recklessness and Gross Negligence Recklessness.

Recklessness connotes a lack of due care, heedlessness and even rashness whiles engaging in a serious
or life-threatening endeavor. The test of what constitutes recklessness is an objective one; would a
reasonable person in the position of the accused have been conscious of the risk. Section 51of the
Criminal Offences Act provides;

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 amounts to a reckless disregard for human life.

CASE; R V GRUNWALD(1963) 1 QB 935 There are two denotations to the concept of recklessness and
these are;

i. Doing an act which amounts to the taking of an unjustifiable risk. CASE; REPUBLIC V ADEKURA (1984-
86) 2 GLR 345, CA (discussed above) where the court of appeal held that to shoot rounds of bullets at a
moving vehicle at that time of the day when visibility was so poor and limited was an inherently
dangerous act which exposed the occupants of the vehicle to a serious risk of death, although the desire
was to demobilize the vehicle by deflating the tire.

ii. Engaging in conduct which involves the taking of an unjustifiable risk even though the actor does not
know of the risk. In DPP V SMITH (1960) 3 ALL ER 161, HL, the accused was driving a vehicle suspected to
contain stolen property. He was ordered to stop and having slowed down, he swerved to the side of the
road, as if he was coming to halt. However, as soon as the police began looking inside the vehicle, he
began to accelerate, driving the car in a zigzag manner until the policemen fell off, only to be killed by an
oncoming vehicle. The accused was convicted of manslaughter under the old felony-murder rule, which
was to the effect that where a person embarks on a criminal activity or an act that is inherently illegal,
he is fully responsible for the resultant injury that he may cause to third parties.

Test of Recklessness The test of recklessness is that of an objective test; would a reasonable person in
the position of the accused have been conscious of the risk.

3. Negligence.

Sections 12, 51, 72, 73 of the Criminal Offences Act brings about various ways in which negligence may
manifest itself. Section 12—Provisions Relating to Negligence. A person causes an event negligently,
where, without intending to cause the event, that person causes it by voluntary act, done without such
skill and care that are reasonably necessary under the circumstances.

Illustrations
(a) A., a woman having no knowledge of midwifery, acts as a midwife, and through her want of skill she
causes death. Here, if A. knew that a properly qualified midwife or surgeon could be procured, the fact
of A. so acting without possessing proper skill and without any necessity for so acting, is evidence of
negligence, although it appears that she did her best. But if the emergency was sudden, and no properly
qualified midwife or surgeon could be procured, A. is not guilty of negligence, provided she did the best
she could under the circumstances.

(b) A chemist sells poison so made up as to be liable to be mistaken for a harmless medicine. This is
evidence of negligence.

(c) If the law directs poisons to be sold only in bottles of a particular kind, and the chemist sells poison in
a common bottle, this is evidence of negligence, even though the common bottle be labelled "Poison".

(d) A., knowing a horse to be dangerously vicious, rides it through a crowd, and it becomes excited by
the noise and throng, and kicks B, A. is within this section, notwithstanding that he had and used all
possible skill in riding.

(e) An acrobat carries a child on a tight-rope at a great height. He happens to miss his footing and the
child is killed. He is guilty of negligence, notwithstanding that he had and used all possible skill in rope-
walking.

Section 51—Definition of Manslaughter.

A person causes the death of another person by any unlawful harm commits manslaughter, but if the
harm causing death is caused by negligence that person has committed manslaughter unless the
negligence amounts to a reckless disregard for human life.

Section 72—Negligently Causing Harm.

A person who negligently and unlawfully causes harm to any other person commits a misdemeanour.

Section 73—Person in Charge of Dangerous thing; Surgeon, etc.,

Negligently Causing Harm or Danger. A person who—

(a) being solely or partly in charge of a steam-engine, machinery, ship, boat, or dangerous thing or
matter of any kind; or

(b) having undertaken or being engaged in medical or surgical treatment of any person; or

(c) having undertaken or being engaged in the dispensing, supplying, selling, administering, or giving
away of a medicine or a poisonous or dangerous matter, negligently endangers the life of any other
person, commits a misdemeanour.

This means that the act must have been done voluntarily, but without any intention of causing that
event. Such absence of intention may be established in two ways; either the actor did not really consider
the result of that act before engaging in it, or because the person undertook an activity which he or she
was not competent enough to do or which was not done with the required competence. Negligence
may be constituted in two ways;

 Inadvertence that causes injury

 It could be acts done by a professional without the necessary skills required under those particular
circumstances.

Negligence is a form of mens rea, but it appears that there is a contradiction in terms because mens rea
refers to an existing state of mind accompanying the doing of an act while inadvertence suggests the
doing of an act unaccompanied by one’s mind, or without the necessary professional competence.

See R V MENSAH (1948) 12 WACA 346, where the appellant killed a man, who he mistook for a donkey,
when on a hunt just on the outskirts of a village. He was held to be negligent and manslaughter was
sustained.

See also R V KWAKU AWONU (1946) 12 WACA 95, where the appellant went out shooting at about 6.
30p.m. and it was dark. On approaching a stream where the villagers normally draw water, he shot at
something he believed to be an antelope by the water edge but unfortunately, it was a man, who was
killed by the shot. He was convicted of manslaughter and sentenced to one year imprisonment. On
appeal against the conviction, which was dismissed but his sentence reduced, the court held that, for a
person to be convicted of murder, his act should have been “intentional” and the death caused by “any
unlawful harm”. These two cases clearly show that the accused in both cases did not kill the diseased
intentionally.

Negligence is punishable when harm occurs because people ought not to embark on dangerous
activities unless they have taken necessary care, or possesses the requisite skills. However, when death
is caused by a negligent act, then such act is punishable by manslaughter only when the act amounts to
a reckless disregard for human life.

Section 12 of the Criminal Offences Act means the act or conduct in question must have been done
voluntarily, but without any intention of causing that event. There are two ways that the absence of
intention can be established. These are;

 Either the actor did not really consider the result of that act before engaging in it OR

 Because a person undertook an activity which he or she was not competent enough to undertake or
which was not done with the required competence.

Other Mens Rea Words/Other Forms of Mens Rea

Knowledge; this has not been specifically defined in the Criminal Offences Act, but as mens rea, the
requirement of guilty knowledge is evident in many of the provisions of the Act. Section 25 provides an
example. It states; A person who, knowingly or having reason to believe that any person has committed
or has been convicted of a criminal offence, aids, conceals, or harbours that person, with the purpose of
enabling that person to avoid lawful arrest or the execution of the sentence, commits a misdemeanour.

Where a law provides that to constitute a crime, the act should have been done “knowingly”, then there
is no liability where the accused proves that he did not know of the circumstances that makes the act a
crime. Therefore, in construing the meaning of knowledge, consideration must be given to the meaning
of the word at common law. There are various kinds of knowledge;

 Knowledge as understood in its ordinary sense, that is, where a person has the necessary information
as to a certain state of affairs.
  Imputed knowledge; where the ordinary person would have received the required information if he or
she had made the necessary enquiries then knowledge would be imputed if he fails to do so.

 Constructive knowledge; where a person does not take steps to make inquiries because of an
unwillingness to know the answer, that is, a cultivated state of ignorance (willful blindness). The
knowledge would therefore be construed from the circumstances.

Motive: motive tends to be synonymous with mens rea as in normal speech, the purpose for which an
act is done and the reason of doing the act is not set out separately. Motive, although it must be noted
that it is a reason doing something, rather than explaining the frame of mind of the person doing the
act.

Voluntariness (willfulness): this means that the act is a conscious one. In offences involving dishonesty, it
implies a desire to cause either a loss to the complainant or another person. It is very close to
intentional acts.

Dishonesty: this is to obtain a property or some other advantage knowing that a person is not entitled
to that advantage. This form of mens rea features in situations such as stealing, receiving stolen
property, fraud by false pretences, and related offences like unlawful misappropriation. The word
‘fraudulently’ is sometimes used to denote a frame of mind bordering on dishonesty.

Malice: this can feature as a mens rea or a form of motive. It features in libel cases and also destruction
of property (malicious destruction of property) that is malicious damage.

Exceptions To The Mens Rea Rules

 Offences of strict liability;

For a crime to be made out there should be the actus reus and a mens rea. In some cases however,
there is no requirement of mens rea to enable one to be liable. Liability in this case, is said to be strict.
This usually occurs in minor offences and one is made liable with the aim of protecting the general
public. Section 296(i) of the Criminal Offences Act, Act 29 provides; A person commits a criminal offence
and is liable to a fine not exceeding ten penalty units who; (i) In a town throws or discharges a stone or
any other missile in or into a public place; Because the throwing of stone is a dangerous act in its self
and is thus discouraged by imposing a criminal sanction. In this case, the mental state occasioning the
throw is immaterial.

 Vicarious liability;

This principle involves holding one responsible for the criminal conduct of another, which is, being
convicted of an offence perpetrated by another. This is a deviation of the principle in criminal law which
is to the effect that individuals are responsible for acts done. In statutory offences, for instance, many
activities attracting statutory prohibitions are done by the employees and not the employers but
without this principle, employers could have benefited from such prohibited acts. It must be noted
however that for there to be vicarious liability, the prohibited act must have been authorized and vice
versa.
EXCEPTIONS TO THE RULE OF CRIMINAL LIABILITY

Automatism

English criminal law has a tradition that involuntary conduct cannot attract criminal liability. A conduct
may be classified as automatism or involuntary if, at the material time, either the individual was
unconscious or certain bodily movements took place independently of his own powers of mental
direction.

Insanity

It must be noted that the consequence of a successful plea of insanity is indefinite detention in a state
mental institution. Since the consequences of this defence is dire, defendants have explored new forms
of argument, and these have presented the courts with interesting problems of classification.
Intoxication

It is an old common law maxim, which is still in practice that drunkenness is no defence. The law will not
take it as a defence when the accused claims that in committing an offence, he was under the influence
of alcohol. It must be noted that the primary effect of intoxication is upon the emotions, inhibition and
self control but it can reach such intensity that it deprives an individual of all awareness of what he is
doing and the consequences of his action. Later on, somewhere in the 19th century, the courts gradually
came to admit that evidence of intoxication should be relevant when the question of whether or not a
certain mental element in liability was present. The result of this approach is that a completely
intoxicated person should be acquitted of any crime.

The 20th century judges have abandoned this approach and restricted the defence of intoxication. There
has been a growing line of authority to the effect that intoxication is not a general defence and that
evidence of intoxication is not relevant to those offences which do not require specific intent. By the
means of specific intent, the court has found an important tool of restriction which ensures that a
person who causes harm or damage whilst intoxicated is made liable and convicted of an offence.

The Criminal Law has always paid particular attention to a particular cause of intoxication. There has
been a distinction between voluntary drunkenness (which would be no defence) and involuntary
drunkenness (which will afford a defence).

Mistake

The general rule is that only a reasonable mistake of fact can or may be a defence of fact
OFFENCES AGAINST THE PERSON.

OFFENCES AGAINST THE PERSON covers all cases of unlawful application of force to another person or
the threat of unlawful harm. Some injury may qualify as permanent incapacitation because of their
intensity or the nature of the instrument used. Offences against the person might also be fatal, for
example, homicide, child destruction, etc. others are also of a special type such as rape, defilement, etc.

ASSAULT AND BATTERY

Assault In law, assault is putting someone in fear of unlawful harm and it is usually without one’s
consent. For the purposes of criminal law, the threat of harm must be immediate, rather than remote. If
you brandish a sword or a fist at someone’s face, it also constitutes an assault. Battery This involves
actually inflicting harm on another person unjustifiably. For example, to slap someone, to push someone
to fall, and in some cases, causing an object to move against another person, for example causing a dog
to chase someone.

Differences In Assault And Battery Under Criminal Law And The Law Of Tort.

The law of tort clearly distinguishes assault from battery but in criminal law, such dichotomy does not
exist so in practical terms, the criminal law may prefer a charge of assault where in fact, in tort, the
charge of battery will be preferred. In all battery however, (that is, both in criminal law and tort), there
must be actual physical contact with the person without his consent. Under section 85 of the Criminal
Offences Act, assault includes;

1. Assault and battery

2. Assault without actual battery

3. Imprisonment.

1. Assault and battery Section 86(1) of the criminal Offences Act defines assault and battery as follows 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 Elements of the offence;

Mens rea: intention of causing harm, pain or fear, or annoyance to the other person or of exciting the
other person to anger.

Actus reus: forcibly touches the other person. See R V HARE (1934-39) 30 COX CC 64 where the
appellant was convicted of indecent assault on a boy of twelve years. She contended that such an
offence had to be sodomitical in character. The court held that, the appellants contention was not so
and that, within the meaning of the act a woman was capable of committing an indecent assault even on
another woman. The definition of assault and battery in section 86(1) of the Criminal Offences Act is
subject to the following

a. Consent: It must be noted that, the general rule as to consent is that expressed in the Latin maxim
“volenti non fit injuria” literally, “one cannot complain to an act to which one has given consent”.
However there are certain cases whereby consent may be given Section 86(2) of the Criminal Offences
Act provides an exemption to the general rule as stated in section 86(1)(a) in so far as the issue of
consent is in question. The said sub-section provides; where the consent of the other person to be
forcibly touched has been obtained by deceit, it suffices with respect to intention that the touch is
intended to be a touch that is likely to cause harm or pain, or is intended to be a touch that, but for the
consent obtained by the deceit, would have been likely to cause harm, pain, fear or annoyance or to
excite anger; This means that a person will still be held to have intended and committed assault and
battery even if he obtained consent from the other person through deceit. Subsection. An illustration
has been provided in the Act for sub-section 2 as follows;

“A. under false pretence of surgical treatment induces B. to consent to harm or pain. A commits an
assault and battery.”

b. Subsection 1(b) provides; where the proper person is insensible, unconscious, or insane, or is, by
reason of infancy or any other circumstance, unable to give or refuse consent, it suffices, with respect to
intention,

i. that the touch is intended to cause harm, pain, fear or annoyance, or

ii. that the touch is intended to be a touch that would be likely to cause harm, pain, fear, or annoyance
to or to excite the other person’s to anger, if that person were able to give or refuse consent, and were
not consenting.

For example, A cannot give consent by reason of insanity. B, thinking it may be funny to see A’s reaction
hit his back with a stick, not hard enough to cause actual pain. A will be guilty of assault and battery
because if A were to be sane and in a position to give consent would not have done so.

c. Also, sub-section 2(c) provides an exception to the general rule. It provides; any slightest actual touch
suffices for an assault and a battery, if the intention is an intention as is required by this section; For
instance; if A pushes B to cause B to fall in a water. A commits an assault and battery although the push
is so slight as not of itself to be material.

d. In all cases of assault and battery, the facts must indicate the nature of the assault. For the purposes
of assault and battery, a person is touched if his body is touched or, if his clothes or anything in contact
with his body is touched. For example, A commits an assault and battery on B if he damages B’s shirt. It
must be noted that the overall requirement of intending to cause harm, pain, fear annoyance etc must
be inherent.

e. Sub-section 2(e) provides; for the purpose of this section, with respect to intention to cause harm,
pain, fear or annoyance, it is immaterial whether the intention is to cause the harm, pain, fear, or
annoyance by the force or manner of the touch itself or to forcibly expose the person, or cause that
person to be exposed, to harm, pain, fear, or annoyance from any other cause.

2. Assault without Battery Section 87(1) of the Criminal Offences Act defines assault without actual
battery. The said section provides; A person makes an assault without actual battery on another person,
if by any act apparently done in commencement of an assault and battery, the person intentionally puts
the other person in fear of an instant assault and battery.

An essential element of assault without actual battery is that, any act or conduct by the accused against
another person which is of such a manner that the other person reasonably apprehend that the accused
will commit an assault and battery. The essence here is that, by the act or conduct of the accused, he
intentionally puts the other person in present fear of assault and battery. It must however be apparent
that the accused is in a position and has the ability or means to carry out an assault and battery. Hence,
if A points a gun at B with intent of putting B in fear of being shot instantly, A commits an assault
without actual battery even thought to A’s knowledge, the gun is unloaded or he in fact has no intention
to shoot at B.

CASE: BRUCE-KONADU V THE REPUBLIC (1967) GLR 611 whereduring a quarrel between the appellant
and a neighbour, he chased her in an effort to beat her up. He was convicted of assault. He appealed,
contending that he had not touched her. It was held that the mere act of chasing her with the intention
of committing a battery on her and thus causing an apprehension in her was sufficient for purposes of
proving assault. The definition of assault without actual battery in section 87(1) is subject to the
following;

a. It is immaterial if a potent or impotent material was used and that the accused had no intention to
carry out an assault and battery. For this reason, sub-section (2)(a) provides;

it is not necessary that an actual assault and battery should be intended, or that the instruments or
means by which the assault and battery is apparently intended to be made should be, or should by the
person using them be believed to be, of a kind or in a condition as that an assault and battery could be
made by means of them. An illustration is also provided in the Act and it is thus; A. points a pistol at B. in
a manner that gives B. reasonable grounds for fearing that B will be immediately shot. Here, A. commits
an assault, although A. does not intend to fire, and although the pistol is not loaded, and although A.
knows that it is not loaded.

b. It is also immaterial if the distance between the person and the accused is so wide in such a way that
the accused cannot carry out an assault and battery whether by moving himself or causing a matter,
animal or another person to move. Thus, subsection (2)(b) provides; a person can make an assault,
within the meaning of this section, by moving, or causing a person, animal, or matter to move, towards
another person, although that person or the other person, animal, or matter, is not yet within a distance
from the other person that an assault and battery can be made; and An illustration provided by the act is
thus; A. at a distance of 10 yards from B., runs at B. with apparent intention of striking him, and
intending to put B. in fear of an immediate beating. Here, A. is commits an assault, although he never
comes within actual reach of B.

c. It is immaterial if the other person did not do anything in other to escape an assault and actual battery
by the accused. For example, A cannot put as a defence that by releasing his dog on B, B reasonably
should have run into his car in other to avoid a bit. Sub-section (2)(c) provides; an assault can be made
on a person, within the meaning of this section, although that person can avoid actual assault and
battery by retreating, or by consenting to do, or to abstain from doing, any act. An illustration is
provided thus; A., being near B., lifts a stick and threatens at once strike B., unless B. immediately
apologises. Here A has committed an assault. It can therefore be inferred that, for assault without actual
battery, mere words alone cannot suffice unless they are accompanied by some action indicating an
intention to commit assault and battery. For example, if A without shaking his fist or moving towards B
said that “if your father were not here, I would slap you in the face”.

3. Imprisonment Section 88(1) and (2) of the Criminal Offences Act provides; (1) A person imprisons
another person if, intentionally and without the other person's consent, that person detains the other
person in a particular place, of whatever extent or character and whether enclosed or not, or compels
the other person to move or be carried in any particular direction. CASE: ASANTE V THE REPUBLIC where
upon a complaint by K. that the appellant had assaulted her, an escort police constable was detailed to
go with K. to invite the appellant to the police station. When they found the appellant, the constable
showed his identity card and invited the appellant to the station. There was no evidence that the
constable at any time told the appellant why he was wanted. The appellant refused to go and the
constable therefore seized the ignition key of the appellant's lorry, thus preventing him from driving
away. In his attempts to retrieve his keys, the appellant knocked the constable down, and whilst he was
on the floor kicked him, injuring him and damaging his trousers. The appellant was convicted of two
charges of assault of a police officer and of causing damage to the property of the same. On appeal it
was submitted on behalf of the appellant, inter alia, that (1) having regard to the evidence on record the
arrest was unlawful; (2) consequently the appellant was justified in repelling the unlawful assault on him
with corresponding force in self-defence and (3) the conviction on the second charge was wrong in law
in so far as the trial court considered not the value of the damage but of the property. In reply counsel
for the respondent contended that even if the appellant could not be convicted of assault of a police
officer, there could be a conviction for the lesser offence of common assault under section 84 of Act 29.
It was held that in the instant case, the police officer failed to put the appellant under lawful arrest by
informing him of the cause of the arrest, and was not therefore legally acting in execution of his duty as
a police officer but was committing on the appellant an assault by imprisonment within Act 29, s.88 by
confining him to the area bounded by the body of his vehicle. On the facts, the police officer did commit
the prior assault of Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 59 imprisonment in refusing to leave the spot where the appellant was and in taking
possession of his ignition key, which was not an integral part of the process of arresting the appellant.
The appellant was therefore entitled to compel the police officer to let him have access to his vehicle to
enable him to free himself from the continuing assault by imprisonment. 4. Cruel customs Section 88A
(1) and (2) of the Criminal Offences Act deals with cruel customs or practices in relation to bereaved
spouses, etc. The said section provides; (1) a person who compels a bereaved spouse or a relative of the
spouse to undergo any custom or practice that is cruel in nature commits a misdemeanour. (2) For the
purposes of subsection (1) a custom or practice is cruel in nature if it constitutes an assault within the
meaning of sections 85, 86, 87 and 88. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 60 HOMICIDE (1): THE COMMON AREAS. I. GENERAL INTRODUCTION Homicide
involves the killing of one or more human beings by another person or a group of persons. Homicide is
divided into two, which is murder and manslaughter. Two areas are common to both murder and
manslaughter;  The actus reus of homicide  Issues relating to causation II. THE ACTUS REUS OF
HOMICIDE There is no general definition of homicide under the Criminal Offences Act but a definition
can be couched from the general definition of murder and manslaughter. Homicide can therefore be
defined as act “…causes the death of another person by an unlawful harm…” See sections 47 and 51of
the Criminal Offences Act. III. CAUSATION For a person to be liable for an offence, the person must in a
causal sense be linked to the event constituting the actus reus. A person may not be responsible for the
act where there is failure to prove that there is a link between the forbidden results and the antecedent
factors. In many cases, there is no difficulty as to who caused a particular event. Looking, however, at
the definition of a particular offence, one can see that the actus reus (the forbidden act) can be
completed at different points in time and by different people. Mensah Bonsu uses the offence of murder
as a useful illustration. Under section 47 of the Criminal Offences Act, murder has been defined as
intentionally causing the death of another person by any unlawful harm. Now, the question is when can
an accused person be said to have “caused” the death of a victim if the activities of several people have
assisted in bringing about that end? For instance, if A who is being rushed to the hospital after being
stabbed in a fight, is involved in an accident caused by B on the way to the hospital and suffers injuries,
and is thereafter given the wrong medicine by C, and consequently dies; who is responsible for the act
of “causing the death” of that person? Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 61 And what if the person would not have died after the stab but for an already
pre-existing condition? At times, as in this scenario above, for the interest of justice, there must be rules
(of causation as provided in sections 13, 64 and 81deals with cases involving death) for determining
responsibility for a particular crime. a. Meaning of “Cause” To cause means to bring about by one’s own
act or endevour. In IMPRESS V REES (1971) 2 ALL ER 357 the appellant was found guilty of “causing” the
spillage into a river, poisonous substances contrary to section 2(1) of the Rivers (prevention of pollution)
Act. From the facts established at the trial court, it could be inferred that the spillage was done by an
unauthorized person by removing the valve. In allowing the appeal and quashing the conviction, it was
held that the entry of the oil into the river was as a result of many causes and the mere fact that the
appellants brought the oil unto their land was one of those causes. The question then was whether the
intervening cause, that is the unauthorized opening of the valve, was of so powerful a nature that the
conduct of the appellant was no cause at all but was merely part of the surrounding circumstances. It
must be noted that in “cause”, there must be a link between the act of the accused and the resultant
event which is to be a crime. b. Use of Involuntary Agents Section 13 (1) and (2) of the Criminal Offences
Act provides; 1. A person who intentionally causes an involuntary agent to cause an event, shall be
deemed to have caused the event. 2. For the purposes of sub-section (1), "Involuntary agent" means an
animal or any other thing, and also a person who is exempted from Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 62 liability to punishment for causing the
event, by reason of infancy, or insanity, or otherwise, under the provisions of this Act. Certain rules are
taken into consideration when determining who has the closest link with the occurrence of an event. In
this situation, the person who caused the act, that is the involuntary agent, cannot be held liable in law.
The rule therefore is that, for there to be liability, the responsibility or liability will lie with the person on
whose behalf the involuntary agent acted. This is because, the involuntary agent does not have the
requisite mens rea of the offence. See R V MICHAEL where the accused person who was a single mother
sought to murder her baby. She gave a bottle of laudanum to another woman to be administered to the
baby. The bottle was left on the shelf. A five year old boy gained access to it and administered half the
bottle to the baby. The baby died. It was held that the mother was found guilty of the murder because
the little boy was an involuntary agent. c. Joint Causation Section 13 (3) of the Criminal Offences Act
provides; Where an event is caused by acts of several persons acting either jointly or independently,
each of those persons who intentionally or negligently contributed to cause the event has, for the
purposes of this Act, and, subject to sub-sections (4) and (5) and to the provisions of this Part with
respect to abetment, caused the event; but any 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. The effect of this section is that,
where an event is caused by two or more people, who act together or independently they will each be
deemed to be guilty of death. For the purposes of establishing criminal liability for that offence, de
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 63
minimiscontribution (that is an act that is trivial or minute) will not suffice. The section also establishes
that, though, the act was done jointly, if there is any defence that can be put up by one person, it can be
done, even thought the others may not have the privilege of that defence. d. Intervening Events Section
13 (4) and (5) of Act 29 provides; (4). A person shall not be convicted of having intentionally or
negligently caused an event if, irrespective of the act of that person and the acts of any of the persons
acting jointly with that person, the event would not have happened but for the existence of a state of
facts or the intervention of any other event or of any other person, the probability of the existence or
intervention of which other event or person the accused person did not take into consideration, and did
not have a reason to take it into consideration. (5). Subsection (4) does not apply where a person is
charged with having caused an event by an omission to discharge a duty for averting the event. It
concerns the problem of liability of the accused if an intervening act comes between the event and the
act of the accused. The problem here is what the extent of the accused liability is when the accused has
done an act but it was intercepted by a third factor, such as an act of a third party. In other words, at
what point would an intervening event be deemed to have broken the chain of causation linking the act
of the accused and the resultant event? The chain of causation is broken when a third party or force
intervenes to change the cause of the train of events which the act of the accused set in motion. This
break then relieves the accused of liability. It must however be noted that, if the intervening act caused
the same event as that of the accused may be, notwithstanding the intervening Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 64 event, liability will still lie
with the accused. See RV SMITH (1959) 2QB 35 where the appellant stabbed another soldier. The victim
was rushed to the reception room but dropped twice in the process. He was also given treatment that
turned out to be incorrect. The appellant was convicted of murder and he appealed. In dismissing the
appeal, the court held that although there were other intervening acts, that of the claimant (which was
the original) was so overwhelming and any other conclusion could not be drawn besides that the death
resulted from the original wound. An intervening event, properly so called, is something which the
accused did not take into account such as a wrongful act of a third party or an unforeseen event which
changed the course of train of the event substantially in deviation of from that which would have
resulted from the act of the accused. Note section 13(7) of the Criminal Offences Act e. “Take your
victim as you find Him” There are also provisions which are especially related to causing death. These
provisions are meant to put beyond doubt a person’s liability for the death. The basic rule is that if one
causes injury to another and as a result the person dies, the one who caused the injury will be liable
even though the victim had some supervening condition such as the victim’s state of health. For
example, if A pushes B and as a result B injures and the injury, as minute as it is, causes B’s death
because of an ailment being suffered by B, A will still be liable even though any other person, in the
circumstance the victim finds herself in, would not have died. This is premised on the fact that, all
mortals must die one day but at their own time. Thus no one is allowed to play GOD to determine how
long one may live by presuming to determine the life-span of the victim. For this reason, section 64(a) of
the Criminal Offences Act provides: Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 65 The general provisions of Part I with respect to causing an event are, in their
application with respect to the causing of death by harm, subject to the following explanations and
modifications, namely— (a) the death of a person is caused by harm if, by reason of the harm, death has
happened otherwise or sooner, by however short a time, than it would probably have happened but for
the harm; In such a situation, as stated above, there shall not be any defence to the effect that, others
subjected to the same kind of treatment would not have died. In other words, “you take your victim as
you find him”. Section 64(b) of the Criminal Offences Act provides; it is immaterial that the harm would
not have caused the person's death but for the infancy, old age, disease, intoxication, or any other state
of body or mind of that person, at the time when the harm was caused; The victim’s own condition can
therefore not serve as an intervening event capable of breaking the causal link or chain between the act
of the accused and the results, that is, the subsequent death of the victim. Case: TWUM V THE REPUBLIC
in this case theappellant slapped a healthylooking policeman who fell down, bled and subsequently
died. The medical evidence showed that in addition to the cracked skull, the victim was also suffering
from oedimia of the lungs which could have killed him later. He was convicted of manslaughter and he
appealed. In dismissing the appeal, it was held that it was not sufficient to prove that the act of the
appellant could have caused death; the evidence must show that the act of Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 66 the appellant did cause the death of
the deceased or accelerated his death, and it must also exclude the possibility of death having been due
to some other cause. In the circumstances of this case, there were no other reasonable possible causes
of death than that the proximate cause of death "the act of the appellant. f. The Victim’s Unreasonable
Behaviour Normally, a person’s own act would not break the chain of causation. However, a person’s
behaviour which is subsequent to the injury was unreasonable. The victim, after the injury, is expected
to pay particular attention to his own health so failure to do so which causes a worsening of the
condition would break the chain of causation. Section 64(c) of Act 29 provides; it is immaterial that the
harm would not have caused the person's death but for the refusal or neglect of that person to submit
to or seek proper medical or surgical treatment, or but for his negligent or improper conduct or manner
of living of that person or of treating the harm, unless the person so acting was guilty of a wanton or
reckless disregard of that person’s own health or condition; There are however instances where the
victim refuses to submit to surgery or even resort to traditional medicine. The question then is, can such
refusal be termed as a reckless disregard for the victim’s own health and condition. If it is answered in
the affirmative, then the accused would be relieved of liability. But if it is answered in the negative, then
the accused would still be liable because the causal chain had not been broken. See R V BLAUE (1975) 3
ALL ER 446 where the appellant stabbed a young girl. In the hospital, the victim acted against medical
advice and refused to accept blood transfusion because she belonged to Jehovah’s Witnesses sect. she
died later at the hospital. It was held that the accused was liable for the death because he must take his
victim as he found her. Her religious beliefs which dictated her state of mind were Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 67 all part of her and could
not be described as unreasonable. Consequently, her decision not to accept treatment did not break the
chain of causation See also R V HOLAND (1841) 2 MOOD & ROB 351; 174 ER 313. In this case the
deceased was assaulted by a prisoner, among other wounds, his finger had been cut by an iron. He told
by the surgeon that he should have his finger amputated or his life will be at great risk. He refused. He
developed lock jaw later. He then had his finger amputated. He later died however. The prisoner
contended that the death was brought as a result of the deceased refusal to have his finger amputated.
In dismissing the appeal, the court held that the prisoner’s contention afforded him no defence and told
the jury that if the prisoner willfully, and without any justifiable cause inflicted the wound on the party
which wound was ultimately the cause of the death. g. Improper Medical Treatment Medical treatment
of an injury caused by another rarely break the chain of causation. This is because, the medical
treatment of the injury is seen as that which is intended to prevent a more permanent injury or even
death from occurring. With this when doctors administer their medical judgement, it cannot be held
that they have broken the chain of causation. It must be noted however, that when the doctor acts so
negligently or is so grossly negligent as to have caused the death through negligent conduct, then the
doctor will be held liable, and the chain of causation will be broken. Section 64(d) provides as follows;
death is caused by harm if the death is caused by the medical or surgical treatment of the harm, unless
the treatment is grossly negligent or unless the death could not have been foreseen as a likely
consequence of the treatment; Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 68 Case; R V MALCHAREK (1981) 1 WLR 690.In this case, the accused stabbed
his wife nine times with a kitchen knife. She was taken out of a life support machine when she was
found to be brain-dead after she was put on the machine for a while. The appellant argued that he did
not cause the death of his wife and contended that it was the act of taking her out of the life support
machine that caused it. It was held that the discontinuance of the treatment does not break the chain of
causation between the initial injury and death where the doctor comes to a conclusion, bona fide and
conscientiously, that the victim is for all practical purposes dead and that vital functions as exist are
maintain solely by mechanical means and therefore discontinues treatment. h. “A Year and a Day Rule”
Section 64(e) of the Criminal Offences Act provides; death is not caused by harm unless the death takes
place within a year and a day of the harm being caused. The “year and a day rule” is a common law
standard that has been codified into our statute because it is a useful practical guide in determining
when a death may be fairly ascribed to an accused as his or her act. Thus, it is not enough that the result
that occurred had a fifty-fifty chance of being the fault of the accused. For this reason, the year and a
day rule has been adopted to put beyond argument when a death may be ascribed to a particular
parson who previously caused grievous injury to the deceased. In this situation, time lapse has the effect
of breaking the chain of causation. This rule, that is the year and a day rule, is premised upon the
principle of law that there should be an end to litigation. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 69 Case; R V DYSON (1908) 2 KB 545
wherethe accused had inflicted wounds on a man which caused his death more than a year and a day
afterwards. It was held that in the absence of recent injuries, the death could not have been accelerated
by the accused i. Application to Inchoate Offences Rules on causation are not limited to only substantive
offences but also to inchoate ones such as attempts. This is premised on the fact that criminal act must
be punished even if they are not proved to have resulted in the particular harm in question. For this
reason, section 13(8) of the Criminal Offences Act provides; A person shall not, by reason of anything in
this section, be relieved a. from a liability in respect of an attempt to cause an event; or b. from a liability
in respect of negligent conduct, if the negligent conduct is punishable under this Act irrespective of
whether it actually causes an event. j. Special Provisions Relating to Causing Death It must be noted that
section 13 of Act 29 relates to events in general. However, with respect to death, special provisions also
apply. It must be also noted the “acts” in the provisions on causing death are restricted only to physical
harms. Thus death caused by acts which inflicts emotional distress, psychological harms and those
believed to be caused by witchcraft and other supernatural forces are not included. Section 81(b) of the
Criminal Offences Act provides The general provisions of Part One with respect to causing an event are,
in their application to the matters of this Chapter, subject to the following explanations and
modifications, namely, (b) the disease or disorder which a person suffers as the inward effect of grief,
terror, or any other emotion is not harm caused Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 70 by another person, although the grief,
terror, or emotion has been caused by that other person, whether with intent to cause harm or
otherwise; CASE: R V NWAOKE (1939) 5 WACA 120 where the appellant pointed a juju at his ex-wife and
threatened that the juju would kill her unless she returned the ‘head money’ he had paid to marry her.
The deceased was so terrified by this threat that she hanged herself a few days later. He was convicted
of manslaughter and he appealed It was held that although the woman’s act had been induced by her
terror, the death was not the act of the appellant. Conviction quashed. k. Witchcraft or Magic Under
section 81(b) it is impossible for bewitching to be considered as “harm” under the criminal law,
therefore, a person who is blamed for spiritually causing an event would be considered outside the
scope of criminal law. Also, one cannot afford as a defence to causing harm to another person the fact
that the person was a witch. l. Contributory Negligence One cannot afford as a defence the fact that the
conduct of the victim contributed to the occurrence of the event which resulted into the harm or injury
caused to the victim. For example, a drunk driver who drives recklessly and caused death walking on the
wrong side of the road. For this purpose, section 81(d) of Act 81 provides; except as in this section
expressly provided, 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. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 71 One will be liable for harm inflicted by a lawfully constituted authority if the
harm (example, death by hanging or firing squad) was caused relying on manufactured evidence. This is
because, the one who uses the law as an instrument of harm is no different from the one who uses an
innocent agent to achieve a particular purpose. Thus, section 81(c) provides; 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; m. Jurisdiction In all cases, before there can be criminal liability, there
must be an actus reus with an accompanying mens rea but there are situations where these two may
occur in separate jurisdictions. For this reason, one of these elements can be superimposed on the other
before the act can be triable as an offence in Ghana. Section 13(6) of Act 29 provides; A person beyond
the jurisdiction of the Courts who causes a voluntary agent to cause an event within the jurisdiction,
shall be deemed to have caused the event within the jurisdiction. Other special provisions also exist in
respect of Homicide. When the actus reus is done within the jurisdiction, but is completed outside the
jurisdiction, it will be immaterial that the death occurred outside the jurisdiction when fixing a locus for
the offence. If A wounds B in Ghana and B is flown to abroad for medical treatment and dies while
undergoing the medical treatment, then for the purposes of prosecuting A for murder or manslaughter,
the death would be held to have been caused in Ghana. For this reason, section 68 of Act 29 provides;
Where harm is unlawfully caused to a person within the jurisdiction of the Court, but the death as a
result of the harm occurs beyond the jurisdiction Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 72 of the Court, the person who caused or
abetted the causing of the harm may be tried and punished under this Act for murder or manslaughter
as if the death had occured within the jurisdiction. n. Liability for Omission Where there is a legal duty to
act, failure to do so constitutes an offence. The actus reus here consist of failure to act as prescribed by
law. For example, every driver is under a duty to stop at the traffic light when it turns red. Failure to do
so constitutes the actus reus. There are some crimes, which according to their definitions consist of
omissions. For instance, a duty is imposed on every citizen to do his or her best to prevent the
commission of a felony. This example is provided in section 22 of Act 29 which states; Every person who,
knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to
prevent the commission or completing thereof, is guilty of a misdemeanour. Liability therefore arises for
an omission to act to prevent the commission of a crime by another. Such duty is also imposed on
parents, guardians and other persons who undertake too care for others to provide the necessaries of
health and life to their children, wards, or persons in their care or charge. Failure to provide this
constitutes a culpable omission. Where such duty is not existent, one cannot be culpable for an omission
to act in a particular way. o. Superfluous Participation in a Crime This comes about where the
participation of the accused is superfluous or unnecessary. This problem may be illustrated as follows: A
and B are assaulting C, D appears on the scene and joins A and B to renew the assault. D will be
responsible for the resultant injury together with A and B as if he had been there with them from the
very beginning. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 73 HOMICIDE (II): MURDER I. Actus Reus of Murder It must be noted that the actus reus of
murder is the same as the actus reus of homicide in general (above). II. Mens Rea of Murder The mens
rea for murder is intention. Intention implies a conscious, deliberate act, intended to bring about a
foreseeable result. For this reason, murder is defined in section 47 of the Criminal Offences Act as
follows; “Whoever intentionally causes the death of another person by any unlawful harm is guilty of
murder…” Intention as mens rea has been subjective, that is, according to the mental processes going
on in the head of the accused person at the time of his act. It must be noted that knowing the intention
of someone is very difficult, for Lord Mansfield observes, “even the devil does not know of a man’s
intentions” As a result, in most situations, the courts are guided by the external manifestation of
conduct on the part of the accused person. Because of this, the maxim is often applied that a man
intends the natural and probable consequences of his act or action. This standard is objective. III. Who
Can Commit Murder It must be noted that anyone of sound mind can be guilty of the offence of murder.
However, section 26 of Act 29 provides; “Nothing is a crime which is done by a person under twelve
years of age.” By virtue of section 26, children under the age of twelve years whose acts normally can be
considered as criminal cannot be held liable. However, if any sane adult uses a minor or lunatic to
commit murder, then he will be liable. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 74 IV. Who May Be a Victim of Murder The law on murder protects every living
individual in the state. Section 66 of the Criminal Offences Act provides; (1) In order that a child may be
such a person that it may be murder or manslaughter to cause its death, it is necessary that, before its
death, the child should have been completely brought forth alive from the body of the mother. (2) 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, or c that it should have been
detached from the mother by severance of the umbilical cord; (3) 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 before it became such a person. The effect of this section is that a child who dies
before birth, by the act of someone, will not be considered as murder or even manslaughter and it is not
necessary whether the child has commenced its own blood circulation, or had breathed or has been
detached from the mother through the severance of the umbilical cord. However, within the meaning of
this section, a child can be considered as a person when it has been completely brought forth from the
mother’s womb. It is however important to note that, by the effect of section 66(3), when harm is
caused to a child in the womb by any person and the child did not die, but after complete birth, the child
dies as a result of that wound caused by that person when the child was in the womb, then the person
would be liable. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 75 SEE ATTORNEY-GENERAL’S REFERENCE (NO 3 OF 1994) (1996) QB 581, CA. where the
respondent stabbed his pregnant girlfriend in the abdomen and ruptured the wall of her uterus. A little
over two weeks later, the woman went into labour and delivered a premature child who survived only
120 days despite the best medical interventions Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 76 HOMICIDE (III): MANSLAUGHTER I.
Voluntary Manslaughter This is when the accused person kills with the mens rea of murder but
mitigating circumstances apply, such as provocation, being under a mistaken belief in good faith that
there was a legal duty to cause death. 1. Provocation This is a defence recognized by the law because it
is acknowledged that certain events can generate a level of anger in a person that leads him or her to
respond irrationally. Under the Criminal Offences Act, the defence of provocation is available only in a
case of murder, reducing it to manslaughter. Section 47 mentions “extreme provocation” which is
provided for under section 52 (a), and section 53 explains matters which amounts to extreme
provocation. Section 52(a) provides; A person who intentionally causes the death of another person by
unlawful harm commits manslaughter and not of murder or attempt to murder, if that person; a. Was
deprived of the power of self control by an extreme provocation given by the other person as is
mentioned in sections 53, 54, 55 and 56; Section 53 also provides; The following matters amount to
extreme provocation to one person to cause the death to another person, namely; a. An unlawful
assault and battery committed on the accused person by the other person, in an unlawful fight or
otherwise, Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 77
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
circumstances in which the accused person was, of the power of self control. b. The assumption by the
other person, at the commencement of an unlawful fight, of an attitude manifesting an intention of
sanity attacking the accused person with deadly or dangerous means or in a deadly manner. c. An act of
adultery committed in the view of the accused person with or by the wife or husband, or the criminal
offence of unnatural canal knowledge committed in the husband’s or wife’s view on the wife, or the
husband, or child; and d. 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 Section 54 details cases in which the doctrine of provocation is
excluded. Section 54(1) provides; Despite proof on behalf of the accused person of a matter of extreme
provocation, the criminal offence shall not be reduced to manslaughter if it appears; a. That the accused
person was not in fact deprived of the power of self control by the provocation; or DONKOR V THE
REPUBLIC; Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 78
b. That the accused person acted wholly or partly from a previous intention to cause death or harm, or
to engage in an unlawful fight, whether or not the accused person would have acted on that purpose at
the time or in the manner in which the accused person did act for the provocation; or BOATENG II V THE
REPUBLIC; this was an appeal against a conviction of murder arising out of a clash between two rival
factions. He argued that the jury had not been directed on the issue of manslaughter by reason of
extreme provocation. It was held that on the evidence, the parties armed themselves for a deadly fight
long before the confrontation took place so as per section 54, he could not have that benefit of extreme
provocation. c. 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; KORANTENG V THE REPUBLIC; the appellant was convicted of murder of a woman. He pleaded
self-defence and provocation. It was held that the appellant could not rely provocation because it was
more than 24 hours after the provocation was offered. The victim had also been shot from behind, at a
distance of about 18 yards. The defence of self-defence will therefore not avail him. Or; d. That the
accused person acted in a manner, in respect of the instrument or means used or of the cruel or other
manner in which an ordinary person would not, under the circumstances, have been likely to act. See
LATI V THE STATE; the appellant under extreme provocation killed the deceased by slashing him 24
times. It was held that he would be deprived of the benefit of the defence because of the cruel manner
in which the killing was done. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 79 DEFENCES GENERAL DEFENCES – GENERAL EXEMPTION INTRODUCTION
“The defences here focus on the law and so procedural defences such as “alibi” are excluded. As well
technical rules that affect a trial are not examined here as such technicalities may or may not be related
to the substantive law General defences – general exemptions Criminal liability is based on assumption
that all persons are of full age and capacity. But this assumption does not hold for children, persons with
mental challenges and those with self inflicted disabilities like voluntary intoxication, hence the need for
exemptions under the criminal law. Exemptions also apply in situations where the actus reus of an
offence includes the circumstances of the doing of an act” – Criminal Law 1 Study Guide. INFANCY
Generally, it is considered that children below a certain age, all other things being equal, have not
develop enough the moral sense which may justify imposition of punishment for a breach of the law. So
far as the criminal Offences Act is concerned, the age for criminal liability in Ghana is twelve years. For
this reason, section 26 of the Act provides; For the purposes of the criminal law a person under twelve
years of age is incapable of committing a criminal offence. ‘With this new position, not only has the age
been raised, but the rebuttable presumption of lack of capacity has also been abolished. Consequently,
all children are deemed capable of forming mens rea once they attain the age of twelve years’- MB Vol.
2 Pg 2 The age of criminal liability has not always been at twelve years. Under the old law, the same
section 26 tagged the criminal liability age at 7 years. Consequently, a child below this age was
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unable and incapable of committing an offence, even though, the actus reus of the crime in question
was done by the child. The law however was different when it came to children beyond the age of seven
but under the age of twelve. Here, the criminal offence committed by the child is weighed with the level
of the child’s development. The law will therefore take into consideration whether the child, given his
environment and circumstances, is mentally developed to actually appreciate that he has breached the
law and can actually be punished for it. On this issue, Mensah Bonsu wrote; Beyond the age of seven
years and under twelve years however, the rules changed. Criminal responsibility became conditional
upon a proven capacity to commit crime based upon the level of the child’s development. Therefore,
the presumption of infancy could be displaced by evidence of the state of the child’s mental
development. Thus, between the ages of seven years and under twelve years (fourteen years at
common law), the old law took cognizance of the fact that some children matured faster than others
and were thus better placed to appreciate the moral quality of their conduct. This subjective element
made it possible to establish by inquiry whether the child’s moral sense was sufficiently developed to
make it possible for he or she to be held criminally responsible for the act. Specifically, this subjective
test made it possible to determine whether a particular child had the capacity to form the requisite
mens rea ie whether the child had the capacity for mischief (or doli capax) without which the child
would not have the capacity to form mens rea. If the child was found to be doli in capax, there could be
no liability since the presumption of the child’s lack of capacity to form mens rea would not have been
rebutted. The inquiry to establish the child’s mental capacity may involve an examination of the child’s
home background, parents, school, etc. – MB Vol. 2 Pgs 3 & 4 Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 81 INSANITY Punishment imposed on a
culpable person at the end of a trial for crime committed is supposed to serve one purpose or the other.
This purpose is served when the ‘criminal’ in question is a person of full mental capacity, being able to
appreciate the distinction between right and wrong. Hence, a person who has reached the age of
criminal liability and is unable to appreciate this distinction as a result of a mental incapacitation is
therefore no different from the child as provided under section 26 of Act 29. Insanity, therefore serves
as an exemption to criminal liability. For this reason, is generally covered by section 27 of the Criminal
Offences Act and the Special Verdict in the Criminal and Other Offences (Procedure) Act, 1960 (Act 30)
[which shall be dealt with later]. For emphasis, section 27 of Act 29 provides; Where a person is accused
of criminal offence, the special verdict provided by the Criminal and Other Offences (Procedure) Act,
1960 (Act 30) in the case of insanity is only applicable— (a) if that person was prevented, by reason of
idiocy, imbecility, or a mental derangement or disease affecting the mind, from knowing the nature or
consequences of the act in respect of which that person is accused; or (b) if that person did the act in
respect of which that person is accused under the influence of an insane delusion of a nature that
renders that person, in the opinion of the jury or of the Court, an unfit subject for punishment in respect
of that act. “There is no basis for imposing punishment for the commission of a crime on a person whose
reasoning is impaired. At the same time the law needs to take such a person in hand for treatment so
that the person is not a danger to society.- Dr Elizabeth A. Archampong in her Study Guide 1
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Development of the Law on Insanity Prof. Mensah Bonsu provides this historical background in her book
at page 19. She wrote; In a less humane period in the life of the common law, insane people were
treated in much the same way as sane people. This was changed as a result of pressure from social
reformers, so that by the 1840s insane people got a verdict of “not guilty on grounds of insanity.” In the
1840s, a politically-sensitive case involving an insane person was tried in England. In that case, the
accused person had attempted to take a shot at Robert Peel, Prime Minister. He missed and killed Peel’s
personal secretary instead. He was acquitted on grounds of insanity and this aroused great public
interest and concern on the issue of the criminal liability of the insane. The matter was referred to the
House of Lords for guidance on what was to be done in such situation. . . The M’Naghten rules as they
came to be called were the first systematic effort to develop special rules to protect both the insane and
the public at large. The M’Naghten Rules Developed by the House of Lords The Qualified Verdict of
Guilty but Insane The criminally insane are subject to a special regime when convicted. This special
regime is signified by the special verdict of “guilty but insane”, which enables persons who found to be
of unsound mind (non compos mentis) to be protected from punishment while at the same time
compelling them to undergo treatment before returning to the society. The special verdict set out in the
Criminal and Other Offences (Procedure) Act, 1960 (Act 30) imposes a period of detention for the
treatment of the individual for an indeterminate period of time – “till the pleasure of the president be
known. - Dr Elizabeth A. Archampong in her Study Guide 1 Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 83 Raising a Defence of Insanity The defence
of insanity can only avail to one who successfully pleads and leads evidence to substantiate it. Under
common law, any one before a court is presumed sane until proved otherwise. This is a rebuttable
presumption and the onus is on the accused person or the person pleading insanity to lead evidence to
prove the contrary. To successfully plead a defence of insanity, one must prove that “. . . by reason of
certain factors, his or her capacity to appreciate the nature and consequences of the act that he or she
did was grossly impaired. The factors relating to the mental faculty may be congenital or the result of
disease or natural degeneration. Disease of the mind or a disease of physical origin can also affect the
mind and impair its reasoning quality” – Study Guide 1 Pg 32 Section 27(a) as provided earlier, does not
only list various mental conditions under which one can plead insanity but also evidence must be lead to
show that such mental condition which is suffered by the accused was in such a way which prevented
him or her “. . . from knowing the nature or consequences of the act in respect of which that person is
accused” NB: In the M’Naghten rule, the word “wrong” was used as the standard, but this led to a lot of
legal arguments as to whether “wrong” meant legally wrong or morally wrong. Ghana’s Criminal
Offences Act avoids this challenge by using the expression “nature and consequences,” consequences
referring to legal consequences. Automatism Sometimes a perfectly sound person may, by no fault of his
or hers, act in a manner attributable to an insane person. Such person at that particular time of
committing the offence may not have full control of himself. Automatism, according to Mensah Bonsu,
occurs “. . . when a person acts without his or her cognitive faculties, in much the same manner as an
automaton.” “Automatism is a common law defence which comes into play when a person who has
done an act, has done it without being conscious of the fact, eg, sleep walking. Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 84 Automatism does not receive
specific mention in Ghana’s Criminal Offences Act but the courts have held that a temporary blackout
during which an accused person commits a crime would be considered as part of the common law
defence of automatism and treated as a disease of the mind”.- Study Guide Pg 32 It must be noted that
since automatism is considered as a disease of the mind, it is treated under insanity and generally
subjected to the rules on insanity including that of section 27 of Act 29. See DOGO DAGARTI V THE
STATE where the incidents which led to the proceedings occurred in the morning of 31 July 1963,
between 8.00 and 8.30 o'clock, at a village called Bonsa, near Tarkwa. The appellant and his said wife
had lodged with some countrymen of his in the said village. The appellant was in a room given to them
by their host, and the wife was in the kitchen doing some cooking in the company of two other women.
At a certain stage of the cooking the deceased left the other women to the room to fetch something she
needed to put into her soup. Very soon thereafter she was heard shouting, "I am being killed! I am being
killed!" The two women in the kitchen rushed to the door of the room but found it locked; they
thereupon raised an alarm and many people came to the house; when the door was opened the
appellant was found standing in the room and holding a knife, and the deceased was found lying dead
on a mat on the floor with a number of fresh wounds on her, bleeding; the appellant then dropped the
knife, and fell to the ground; he was caught and tied up, and later handed over to police. In a statement
he made to the police when he was charged with the offence, the appellant said inter alia, "I do not
know that my wife Amaba Dagarti was dead. I do not know the one who killed her. I believe that it was
God who killed her." The appellant, in his defence at his trial, repeated what he had told the police,
namely, that he did not know that the wife was dead, and did not know the cause of her death; and
added that he used to have certain epileptic fits, and upon recovery he would have no recollection of
anything that he did during the period of the attack. He was however found guilty. Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 85 In dismissing the appeal on
the grounds that “there is not a tittle of evidence from which a jury can reasonably infer that the
appellant inflicted the harm upon his wife in a state of automatism”, Ollennu JSC said; Arguing the first
ground of appeal, learned counsel for the appellant submitted that the defence set up by the appellant
was automatism rendering him incapable of forming intent as defined in section 11 of the Criminal
Code, 1960; and therefore the trial judge erred in directing the jury that, "neither automaton nor
hysterical amnesia was a defence in this country to a charge of murder." 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 . . . In such a case it would be correct to say, as counsel
submitted, that although the physical act causing the event is that of the person charged with it, yet in
law, it will be an act done without intent; a more correct statement is that in law such an act is not the
voluntary act of the person who did it. Where a defendant pleads that the act complained of was done
in a state of automatism he should be able to show some evidence either coming from the prosecution
or from the defence which could be put to the jury and from which the jury could reasonably infer that
the act was done in a state of automatism. But the question whether there is or is not such evidence is
one for the judge. Where the judge decides that there is no such evidence, no need arises for him to
direct the jury on that defence. See also R V BURGESS, where the appellant attacked a friend with whom
he was spending an evening, while the friend was asleep. He hit her on the head with a bottle then a
video recorder and then attempted to strangle her. He claimed that he was sleep-walking at the time,
and Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 86
pleaded automatism. It was held that such cases of automatism came within the M’Naghten rules on
insanity because “any mental disorder which has manifested itself in violence and is prone to recur is a
disease of the mind” Insane Delusion Sometimes, for one reason or the other, a person may see certain
things and hear voices which in actual sense, do not exist. He is the only one who experiences this at
that particular time and even people around him or her will be incapable of having such an experience.
We normally say such a person is living in a world of his or her own and has a belief in a state of facts
which cannot be shaken by evidence”. When it is fopund as a matter of fact that a person was under an
insane delusion when he committed an offence, the person must be tried in his own world, that is,
according to what he or she sees. See R V MOSHIE where on the morning of the 23rd December, 1958,
for no reason which could be suggested, Issaka Moshie ran amok. He killed his landlord, chased other
people in the village and wounded a woman. Finally he caught a little boy aged about six years (Kwadwo
Anthony), and was holding him with his left hand, bending over him and cutting him up with a cutlass
wielded by his right hand, when one of the villagers who had been attracted to the scene by the alarms
of women, shouted at the appellant saying: "Is that a human being you are cutting up like this?" Issaka
Moshie looked up at the man for a moment, then rushed on him with the cutlass. The man ran into his
room, took up his gun, and came out. Issaka Moshie was still coming towards him, holding the cutlass in
a fierce manner. The man then pointed the gun at Moshie, threatening to shoot him, hoping that the
threat would make him stop, and drop his cutlass. Moshie was not in any way deterred, but pressed
forward. The witness then shot him in the knee; Moshie fell but got up again and rushed towards the
witness with the cutlass. The witness fired a second shot, which disabled Moshie, and caused him to fall
again. The Odikro of the village, who had arrived at the place by that time, seized the cutlass from
Moshie, and the matter was then reported to the Police. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 87 When charged with murder, and
cautioned by the Police, Moshie made a statement admitting killing some person or persons, and giving
reasons for it. He said that two days before the incident his landlord had come from Kumasi with a
number of people, to take him to the Asantehene to be killed. One of the men had fired a gun at him but
had missed him, so he went into his room and slept. On the day in question a Linguist and a large
number of people came on a lorry; he was alone in his room at the time. The Linguist, his landlord, and
those other people dragged him out of the room, and were forcing him into the vehicle to be taken to
the Asantehene to be killed. Some of the men, including his landlord, had guns pointed at him, and were
threatening to shoot him if he would not get on the vehicle. He concluded by saying that, in that grave
moment, he snatched his cutlass and slashed his way through his assailants in order to save his life. He
told the same story on oath at his trial in greater detail. Issaka Moshie was charged with the murder of
the child. He was tried at Sunyani by Scott J., sitting with assessors, and was convicted. He appealed to
the Court of Appeal. Ollennu J in his judgment said; In our view, the evidence given at the trial of the
appellant raised the question whether or not, when he committed the act which he admits he
committed, he was under an insane delusion . . . so as, in the opinion of the Court, to render him an
unfit subject for punishment. The story consistently told by the appellant does not fit into the known
facts. . . The story is such that the only impression it gives is that at the moment when he did the act he
was living in a world entirely his own and quite different from that in which all other people in the
village, who witnessed the scene, were living. In the notes of the learned Judge's summing-up to the
assessors appears the following passage: "Assessors told if they did not believe that accused had acted
in self-defence, but that he was deprived of his power of self-control, and that he intended to cause
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landlord and other persons in group, and not to deceased boy Kwadwo Anthony, entitled to find
accused not guilty of murder but guilty of manslaughter." This direction would have been in order, if the
story told by the appellant could be set against a background of reality. But the evidence shows clearly
that the "facts" in the story of the appellant were facts which existed only in his own mind, false beliefs
held by him which could not be shaken by the facts as they were. . . In his summing-up to the assessors,
and in his judgment, the learned Judge completely overlooked a most important fact which stares one in
the face - the fact that the appellant was not seeing the things that every one else saw, and that he
firmly believed (in spite of what every one else said) that what he was saying was the truth. The learned
Judge, therefore, failed to direct himself and the assessors on the question of the state of mind of the
appellant at the time when he committed the act, in order to determine whether or not he was a fit
subject for punishment in respect of the act. It appears to us that the learned Judge was led into this
error by reason of the fact that a defence of insanity or of insane delusion was not put up. "Guilty but
insane" is not a plea open to an accused person. It is a "special verdict" based upon facts which a jury or
Judge can find upon the whole of the evidence, whether that evidence was led by the prosecution, or by
the defence, or by both. . . In the case of R. v. Grumah (2 W.A.L.R. 255), the West African Court of
Appeal held that . . . an insane delusion is a state of mind (induced by mental disease) in which a false
belief is held that cannot be shaken by facts. That decision was followed by this Court in the case of R. v.
Ayaaba Kusasi. In the judgment delivered in that case . . . their Lordships . . . indicated their approval of
the rationes decidendi drawn there from . . . that . . . Criminal Code is concerned principally with
whether or not the insanity is of such a nature as to render punishment pointless; it is not concerned
with the form the delusion takes. . . Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 89 The facts of this case are very similar in material respects to those in the
case of R. v. Ayaaba Kusasi. We are of the opinion that had the learned Judge directed himself and the
assessors on this issue of insane delusion, the opinion of the assessors might well have been different,
and the learned Judge might well have found himself in entire agreement with that other opinion, as he
was with their opinion of guilty of murder. In the case of insane delusions, the accused person has no
consciousness of acting. In the case of ABUGRI alias PINI FRAFRA V THE REPUBLIC, The appellant had
been living at Pokukrom in the Brong-Ahafo Region where he was the caretaker of a cocoa farm owned
by Kwadwo Nantwiri, an elder brother of the deceased. He attacked the deceased with a cutlass one
afternoon while the deceased sat talking to his wife. There was one fatal wound on the neck which
almost completely severed the head from the body. Death was instantaneous. That was on 29 June
1971. In a statement made by the appellant to the police the day after the incident he said he had killed
the deceased because the deceased threatened to kill him for having had an affair with the deceased's
sister, Yaa Adoma. In evidence at his trial the appellant told a somewhat different story. That story was
of insults heaped on him by the deceased and of a cigarette and food which he suspected to have been
poisoned offered him by the deceased on another occasion. By some apparent supernatural
intervention he had been saved from smoking the cigarette or eating the food. On the day in question
he had been in peaceful pursuit of his affairs when the deceased once more started insulting him on
account of his relations with Yaa Adoma. Upon the appellant asking him to desist, the deceased slapped
him twice. The deceased was about to pick up a cutlass which the appellant had thrown away after
being first slapped. Fearing an attack with the cutlass if the deceased got it, the appellant rushed on him.
The deceased first slashed the back of the appellant's neck with the cutlass. There was then a scuffle
during which the cutlass first fell down, followed by the deceased who fell on it. In taking the cutlass
from under the head of the deceased the fatal slash occurred. Approximately five months after the
incident the appellant was admitted to the mental hospital where he was kept for almost one year. At
the trial the psychiatrist testified that the appellant Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 90 was suffering from paranoid schizophrenia
and was of the opinion that at the time of the incident the behaviour of the appellant was
unpredictable, senseless, repulsive and aggressive. In his summing-up the trial judge informed the jury
that it was not the function of the psychiatrist to decide the issue of insanity, that function being
reserved for the jury. However, he failed to point out the significance of the psychiatrist's evidence and
following conviction for murder an appeal was taken on the treatment of the question of insanity in the
summing-up. In allowing the appeal and substituting a verdict of guilty but insane, Amissah JA held (per
the head notes); (1) although the trial judge correctly informed the jury that it was not the province of
the psychiatrist but theirs to find insanity or otherwise at the time of the commission of the act, he
erred when he failed to point out the significance of the psychiatrist's evidence. The trial judge should
have further directed the jury about the proper relationship the psychiatrist's evidence bore to other
disconnected items of evidence in their determination of the issue of insanity. (2) The trial judge also
erred in his direction on the law of insane delusions. There was no requirement that the mental delusion
should lead to an incapacity to control conduct, rather it was sufficient if the accused acted while in a
state of mind, induced by mental disease, in which a false belief was held that could not be shaken by
facts. Insane delusion can be temporary or permanent. What is material is that at the time of the
accident the accused was laboring under an insane delusion and not what it becomes subsequently. See
MANU V THE STATE where the appellant who had been convicted of murder by the High Court, Kumasi,
appealed against his conviction principally on the ground that the trial judge had failed to direct the jury
on the possibility of returning the special verdict Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 91 as he had put up a defence of insanity
when he had relied upon the defence of insane delusion, which defence was rejected by the jury and
the appellant was found guilty of murder. . Counsel for the appellant contended that the trial judge
erred in law when he directed the jury that insanity "had to be proved to be total, fixed and permanent"
and submitted that section 27 (b) of the Criminal Code, 1960, destroyed the erroneous principle which
the trial judge purported to lay down and that the insane delusion envisaged by the subsection could be
temporary. In setting aside the verdict and sentence of death and substituting the special verdict that
the appellant was guilty of the act charged but was insane at the time he did the act and ordering that
the appellant be detained in custody until the President's pleasure be known, Bruce-Lyle JSC, in
delivering the judgment of the court said; It is apparent from the foregoing that the appellant at the trial
relied upon the defence of insane delusion, which defence was rejected by the jury and the appellant
was found guilty of murder. Against this verdict the appellant has appealed to this court . . . Section 27
(b) of Act 29 provides that the special verdict in the case of insanity is applicable if the person accused of
crime "did the act in respect of which he is accused under the influence of an insane delusion of such a
nature as to render him, in the opinion of the jury or of the court, an unfit subject for punishment of any
kind in respect of such act." In R. v. Grumah,2 insane delusion is defined as a state of mind induced by
mental disease in which a false belief is held that cannot be shaken by facts and we hold that such a
state of mind can either be permanent or temporary. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 92 GENERAL DEFENCES – PARTIAL DEFENCES
INTRODUCTION There are other defences which may avail a person and when successfully pleaded, will
not exonerate one completely from criminal liability but will rather serve as mitigation, hence, the
accused person does not suffer the full extent of the penalty that would otherwise have been imposed.
These defences are generally known as partial defences. INTOXICATION “A person who imbibes a mind-
altering substance and whose mental state is thereby impaired is said to be intoxicated”- MB Vol. 2 Pg
73 Intoxication is generally provided for under section 28 of the Criminal Offences Act. Under subsection
5 of the section 28, intoxication has been broadened not only to refer to excessive intake of alcohol but
also the intake of drugs. The said subsection provides; For the purposes of this section "intoxication"
includes a state produced by narcotics or drugs. Under common law, there is a rebuttable presumption
that everyone is presumed sober hence the burden is on the accused to rebut the presumption. One of
the ways this presumption can be rebutted is when one is able to successfully plead intoxication. It must
however be noted that the defence of intoxication does not only rely on proof that a person, at the time
of committing the offence, was intoxicated, but also the court will take into consideration circumstances
leading to the intoxication. For example, if a person voluntarily gets intoxicated in other to give him
impetus to commit an offence, say, beat up his wife. Clearly, if such an act is done, the person was
intoxicated though, but because of the circumstances surrounding the intoxication, the person cannot
be successful in such a plea. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 93 NB It is the accused person who carries the burden of providing evidence to
establish the defence of intoxication General Provision on Intoxication Section 28(1) of Act 29 provides;
Except as provided in this section, intoxication is not a defence to a criminal charge. This subsection
makes it clear that intoxication is no defence in criminal law except in certain instances provided in the
section. Hence, it must be noted that raising the defence of intoxication does not automatically inure to
the person who was so intoxicated, but as was said earlier, certain conditions must be fulfilled. See REX
V OWAREY where the accused, a native of the Gold Coast, was charged with the murder of a fellow clerk
who like himself was employed at a mining camp in the Sokoto by shooting him with a shot gun. The
evidence shows that the accused and the deceased were called to the Manager's office on a Sunday
afternoon to draft and type a reply to a letter from a neighbouring manager, an altercation then arose
and the accused struck the deceased over the face with a piece of paper. Odonkor whom the accused
describes as his nephew then rose and pushed him and accused fell over backwards; In rising accused
picked up a heavy hammer and attempted to strike deceased with it but was prevented from doing so:
the Manager then separated them and accused departed saying" I will go home and rest ". Shortly
afterwards, Owarey returned with a shot gun loaded in both barrels and three spare cartridges in his
pocket, aimed the gun at the Manager, then went in search of the deceased, found him in the office and
shot him at a distance of a few yards in the stomach. He had remarked " Where is he ? and " Someone
will die to-day". The witnesses describe his previous conduct as normal but after being apprehended he
was abnormal, was shouting and exclaimed" Whatever I have done is nothing" and" What have I done?".
The deceased was found dead on their way to Gusau hospital. His body was carried to Gusau hospital
identified to the Medical Officer who did a post mortem and has told the Court that death was due to
hremorrhage resulting from laceration of the liver and spleen caused by gun shot wounds. Downloaded
by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 94 The accused defence
was temporary insanity induced by excessive drinking and, provocation which in relation to the
intoxicated state the accused was in would reduce the crime from murder to manslaughter. The accused
went into the witness box and gave an account of heavy drinking since early morning, a faint
recollection of drafting the letter but no memory of discharging the shot gun: he says that it was dark
when he first came to. In dismissing his appeal, the West Africa Court of Appeal held; . . . to prevent any
confusion of thought in the nature of these two defences it should be stated now that intoxication is not
a good defence under . . . the Criminal Code unless by reason thereof the person charged did not know
that-such act was wrong or did not know what he was doing and the person charged was by reason of
intoxication insane, temporarily or otherwise at the time. It is then and then only that the plea of
intoxication is the equivalent of that of insanity and such a plea must be definitely established. See also
CHUTUWA V R, where a conviction for murder was upheld in spite of evidence of intoxication. It was
held that the person must be so drunk as to be incapable of forming the intent essential to the crime. To
obtain the benefit of the defence, it is not enough to prove a mere state of intoxication. Exemptions to
the General Provisions Section 28(2) of Act 29 provides; Intoxication is a defence to a criminal charge if
by reason of the intoxication the person charged, at the time of the act complained of, did not know
that the act was wrong or did not know what that person was doing and— (a) the state of intoxication
was caused without the consent of that person by the malicious or negligent act of another person; or
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 95 (b) the
person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act.
Subsection 1 provides that intoxication is no defence, however, as already hinted in the same subsection
1, there are certain exemptions to that general rule. Subsection 2 as provided for above gives those
exemptions. The two exemptions can be grouped under involuntary and voluntary intoxication. For
involuntary, as provided in paragraph (a), it comes about in situations where “. . . intoxication was
caused without the consent of that person by the malicious or negligent act of another person”. For
involuntary intoxication see R V KINGSTON where the accused person had been invited to the flat of
another. He was given refreshment laced with a drug, and was then filmed having homosexual
intercourse with a minor, for purposes of blackmail. He was prosecuted for the offence, and although he
pleaded intoxication by the act of a third party, he was convicted when the judge failed to direct the jury
on the effect of involuntary intoxication. He appealed and his appeal was allowed on the basis that there
was sufficient evidence of involuntary intoxication for the jury to have been directed thereon, and that a
failure to do this had rendered the conviction unsafe, such that it could not be allowed to stand. See also
REG V ALLEN where it was held that mere ignorance of the strength of a drink that a person voluntarily
takes in does not make his consequent intoxication involuntary. Voluntary intoxication This, as earlier
noted, is provided for under section 28(2)(b) and for emphasis, we say one is voluntarily intoxicated
when ”the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time
of the act”. “. . . intoxication that is caused by one’s own conscious act of injecting an intoxicant is
considered voluntary. Consequently, apart from having to establish that the state of intoxication was
such as to prevent him or her from forming the requisite mens rea, it must also be Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 96 established that the
requisite high degree of intoxication was present at the time the offence was committed, in order to
bring the defence into play . . . Failure to establish the requisite degree of intoxication would defeat the
defence since the presumption of sobriety would not have been displaced” -MB Vol. 2 Pg 77. See
KETSIAWAA V THE STATE where the appellant was convicted of the murder of his former wife. On the
day of the crime, the two of them had left their village together to go to a farm. A search party later
discovered the dead body of the deceased in the bush covered with palm leaves. Later the accused was
arrested and he made a statement to the police that on the day of the crime he had drunk a bottle of
akpeteshie, unknown to his former wife. He further stated that he appealed to his former wife for
reconciliation, but that his former wife replied with abuses. Stung by these abuses and being totally
drunk, he cut her with a cutlass he was holding. The medical evidence on the deceased's injuries showed
that they were numerous, ghastly and barbarous. At the trial the closing sentence of the judge's
summing-up notes said: "If you believe that accused was so drunk that he did not know what he was
doing or that he was highly provoked then say he is guilty of manslaughter. If you are not sure or if you
think his explanation might reasonably be true, then return a verdict of guilty of manslaughter." In
dismissing the appeal, Ollennu JSC said; For the defence of intoxication to succeed, it must in the first
place be proved that the person pleading it was so intoxicated at the time he did the act complained of
that either (1) he did not know that the act he was doing was wrong, or (2) he did not know what he was
doing. . . From the facts of this case, the subsection of section 28 which applies is subsection (2) (b). The
plea of intoxication, i.e. of insanity, being a defence, the onus of establishing it rests upon the
defendant. That onus however is not a high one, evidence which shows reasonable probability is enough
to discharge it. But bare evidence, without Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 97 anything more, that intoxicating liquor
was consumed, falls short of the standard of proof required, for consumption of intoxicating drink by
itself need not result in the intoxication approximating to madness which the law requires to be
established to sustain the defence. And those are the principles which must be applied in deciding this
appeal. There is evidence from the appellant that he took akpeteshie, but apart from his bare assertion
that he became drunk, there is nothing to show that he became so drunk as not to know the nature of
the act he was doing, or that what he was doing was wrong. In fact his own evidence proves that he
knew exactly what he was doing; and that evidence of his is confirmed by the fact that after murdering
the woman he cut a quantity of palm branches to cover her up completely to conceal the body, to
prevent its early discovery. A state of intoxication may also be deliberately induced by a person in order
to commit a crime. Such conscious act of intoxication, induced by the person having first formed the
mens rea to commit an offence, would deprive one of the defence, however intoxicated the person
was”- MB Vol. 2 Pg 77. Consequences of voluntary and involuntary intoxication Subsection 3 of section
28 of Act 29 provides generally for the consequences of involuntary and voluntary intoxication. The said
subsection provides; Where the defence under subsection (2) is established, then a. in a case falling
under paragraph (a), the accused person shall be discharged, and b. in a case falling under paragraph (b),
the special verdict provided for by the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) in the
case of insanity shall apply. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 98 Under this subsection, involuntary intoxication, when successfully pleaded
will lead to the complete discharge of the accused from the offence committed. However, in the case of
voluntary intoxication, “. . . the special verdict provided for by the Criminal and Other Offences
(Procedure) Act, 1960 (Act 30) in the case of insanity shall apply." Evidence of extreme intoxication can
undermine proof of intent since a person who is extremely intoxicated does not have the full mental
faculties to enable him form intent to commit a crime when on that state.For this reason, section 28(4)
of Act 29 provides; Intoxication shall be taken into account for the purpose of determining whether the
person charged had formed an intention, specific or otherwise, in the absence of which the person
charged would not be guilty of the criminal offence. See R V HARDIE where the appellant cohabited with
the victim of the offence. Upon the breakdown of the relationship, she asked him to leave the house.
The appellant in a bid to change her mind, swallowed several pallets of valium, and shut himself up in
the bedroom. Subsequently, the wardrobe caught fire in circumstances that suggested that the
appellant caused the fire. He was convicted of the offence of causing damage and his defence of
intoxication failed because the jury was directed that the effect of the valium upon him was irrelevant. It
was held that the direction was wrong because the effect of a valium as an intoxicant was relevant in
determining whether the appellant had formed the necessary mens rea for the offence See also QUEEN
V O’CONNER where the respondent had forced open a police officer’s car which was packed outside the
officer’s residence, and stole some of its contents. The officer chased him up and attempted to arrest
him but the respondent stabbed him with a knife he had taken from the car. He successfully pleaded
intoxication and the crown appealed. In dismissing the appeal, the court held that though his act of
getting intoxicated was blameworthy, he could not be presumed to have thereby acted voluntarily and
intentionally. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
99 GENERAL DEFENCES – COMPLETE DEFENCES Complete defences have the effect of rendering non-
criminal or justifying an act done by the accused person. Thus “complete defences exonerate accused
persons from criminal liability for acts which would normally have been criminal, but for the
circumstances under which they were done.” – MB, Vol. 2 Pg 183 Why does the Law Recognize
Complete Defences On this issue, Mensah Bonsu wrote “these defences represent an admission by the
law that there are occasions which are not deserving of the criminal sanction, when normal human
activity would result in harm, eg. Medical or surgical treatment, or when a person is put to a choice
between protecting one’s person or property against interference from others, or allowing them to
obtain an advantage at one’s expence. There are also occasions when the person does not possess the
requisite amount of information which could support the inference that the person was in possession of
the prohibited mental state, eg when the person has made a fundamental mistake of fact. Persons who
are intoxicated by the malicious or negligent act of other persons, ie involuntary intoxication, are also
enabled to escape punishment. Thus recognision is given to the fact that without the involuntary
intoxication, they would not have committed the particular offence. All these situations are provided for
by the enactment of provisions to exonerate the person from liability and consequent punishment
completely. Complete defences thus exonerate accused persons from criminal liability for acts which
would normally have been criminal, but for the circumstances under which they were done.”- MB Vol. 2
Pg 183 Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 100
JUSTIFIABLE HARM This refers to situations where the ;law deems harm caused to another as no
offence. Section 31 (a)-(j) of Act 29 provides a number of circumstances where harm will be justified.
The said section provides; Force may be justified in the case and in the manner, and subject to the
conditions, provided for in this Chapter mentioned, on the grounds— (a) ofexpress authority given by an
enactment; or (b) ofauthority to execute the lawful sentence or order of a Court; or (c) ofthe authority
of an officer to keep the peace or of a Court to preserve order; or (d) ofan authority to arrest and detain
for felony; or (e) ofan authority to arrest, detain, or search a person otherwise than for felony; or (f) ofa
necessity for prevention of or defence against criminal offence; or (g) ofa necessity for defence of
property or possession or for overcoming the obstruction to the exercise of lawful rights; or (h) ofa
necessity for preserving order on board a vessel; or (i) ofauthority to correct a child, servant, or other
similar person, for misconduct; or (j) ofthe consent of the person against whom the force is used.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 101 NB
section 31 (a)-(e) cover acts done under the express authority of a statute, or other lawful authority,
which are justified on the simple ground that acts required by law are lawful. Section 32 on the other
hand, provides situations where force cannot be used or where force will be unjustified. The said section
provides; Although there may exist a matter of justification for its use, force cannot be justified as having
been used in pursuance of that matter— (a) which is in excess of the limits prescribed in the section of
this Chapter relating to that matter; or (b) which extends beyond the amount and kind of force
reasonably necessary for the purpose for which force is permitted to be used. “What amounts to
“reasonable force” on any occasion is a question of fact. For instance, a security man who is effecting an
arrest may be guilty of criminal assault or manslaughter if force is used on a suspect who presents no
resistance whatsoever. Consequently, the practice of slapping suspects and subjecting them to all
manner of physical abuse cannot escape condemnation under this provision. However, a boxer who
causes the death of his opponent in the cause of a lawful fight in the ring would be justified unless the
force was outside the rules of the sports”- MB Vol.2 Pg 224. See R V ADU where the appellant killed a
guard who chased after him to effect an illegal arrest. The extent of force used in resisting the l arrest
led to the guard being killed. It was held that the force was excessive in resisting the illegal arrest. See
also AGYEMANG V THE REPUBLIC (NO. 2) where in an altercation between the appellant and the
complainant in a house where both of them lived, the appellant was alleged to have used force on the
complainant. The appellant was tried for ordinary assault before a district magistrate who acquitted him
on the ground that the force used was justified in order to prevent the commission of a crime in
accordance with section 31 of Act 29. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 102 In the exercise of his powers of revision of decisions of district magistrates,
the supervising High Court judge in the area reversed, without hearing or seeing the appellant, the order
of acquittal and substituted a conviction and sentenced the appellant to twelve months' imprisonment
with hard labour. On appeal against conviction and sentence, the main consideration of the Court of
Appeal was whether a revising judge contemplating the reversal of an acquittal and the imposition of a
fresh sentence or an increase in one already given should not hear the convicted person before so
acting. In allowing the appeal on the grounds that the supervising judge breached a the rule of natural
justice by not hearing the other side, Amissah JA, in delivering the judgment of the court however said;
It appears to us, as indeed it must have appeared to the revising judge, that putting an end to a verbal
altercation by the use of force cannot by any stretch of the imagination be considered as one of the
circumstances in which force may be justified on the ground of need to prevent crime. As the quarrel
had not taken place in a public place or at a public meeting the offence of conduct conducive to a breach
of the peace was hardly sustainable. In the absence of that we are at a loss to find what criminal offence
the magistrate thought the appellant had a right through the justifiable use of force to prevent. Besides,
where the person who seeks to justify the use of force to prevent the commission of a crime is himself
as involved in the crime, if crime it be, as the other whom he seeks to stop, as appears to be the case
here, he cannot be invested with the cloak of the innocent victim of a crime either actual or threatened
which he is justified in terminating by the use of force. To do so would grant all of an aggressive nature
that right to assault once they take care to enter into a preliminary quarrel with their chosen victim.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 103
Preservation of Public Order Section 35 of Act 29 provides; A person who is authorised as a peace
officer, or in a judicial or an official capacity, to keep the peace or preserve order at any place, or to
remove or exclude a person from a place, or to use force for a similar purpose, may justify the execution
of his authority by a necessary force. On this issue, Mensah Bonsu wrote; A police officer or other
person who is authorized to preserve order may be justified in using force to carry out that function. For
instances if a court orders a person to be remanded in custody, whatever force it takes the person to
submit to the order would be justified. The justifiable force must be what is reasonably necessary as
indicated by the circumstances.-MB Vol. 2 Pg 185 Execution of Lawful Process Force used in the
execution of lawful processes is generally covered under section 34 of Act 29 which provides; A person
who is authorised to execute a lawful sentence or order of a Court may justify the force mentioned in
the sentence or order. Under this section, anyone responsible for executing a sentence or order of a
court which has do with the infliction of harm, then, that person, in carrying out his or her duty is
covered by this section. Again, anyone given authority to execute a court decision, order or judgment,
such as a bailiff must at all cost, even if it demands applying force to overcome any obstruction or
opposition to his carrying out his duty, then, he must apply. However, if he receives no such opposition
and goes his own way to inflict harm, then, he is not covered by the section as stated above.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 104 See
ASANTE V THE REPUBLIC where upon a complaint by one Abena Kisiwaah, that the appellant had
assaulted her, an escort police constable was detailed to go with the complsinant. to invite the appellant
to the police station. When they found the appellant, the constable showed his identity card and invited
the appellant to the station. There was no evidence that the constable at any time told the appellant
why he was wanted. The appellant refused to go and the constable therefore seized the ignition key of
the appellant's lorry, thus preventing him from driving away. In his attempts to retrieve his keys, the
appellant knocked the constable down, and whilst he was on the floor kicked him, injuring him and
damaging his trousers. The appellant was convicted of two charges of assault of a police officer and of
causing damage to the property of the same. On appeal it was submitted on behalf of the appellant,
inter alia, that (1) having regard to the evidence on record the arrest was unlawful; (2) consequently the
appellant was justified in repelling the unlawful assault on him with corresponding force in self-defence
and (3) the conviction on the second charge was wrong in law in so far as the trial court considered not
the value of the damage but of the property. In reply counsel for the respondent contended that even if
the appellant could not be convicted of assault of a police officer, there could be a conviction for the
lesser offence of common assault under section 84 of Act 29. In allowing the appeal, Anterkyi J. said; The
emphasis is mine. The first prosecution witness should therefore have told the appellant that he was
arresting him on the ground that K. had made a complaint that he had assaulted her. There was no
evidence on the record that the first prosecution witness did tell the appellant why he was insisting that
he should go with him to the police station after he had expressed his unwillingness to go. Therefore, in
so insisting upon the appellant going with him to the police station without assigning a reason or the
true reason, and in refusing to leave the spot where the appellant was, and in taking possession of the
ignition key of the appellant's lorry, as found by the trial court, the first prosecution witness was at the
material time not legally acting in execution of his duty, but was committing on the appellant an assault
by imprisonment by confining the appellant to the area bounded by the body of his vehicle. Downloaded
by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 105 . . . The first
prosecution witness would have been in legal execution of his duty if the appellant had first been put
under a lawful arrest, and the appellant would have been under lawful arrest if an arrest had in the
circumstance been effected by the first prosecution witness then in mufti (1) showing to the appellant
ex abundanti cautela his appointment card: as he contended he did; (2) telling the appellant that upon a
complaint lodged by K. at the police station he suspected that he (the appellant) had committed against
K. the offence of assault, and that he was therefore arresting him, and (3) by actually touching him. The
mere fact that K. was then present at the scene was not enough to satisfy (2) above. And if, as the
record shows, the first prosecution witness merely told the appellant that he was wanted at, or being
invited to, the police station, the appellant was not legally obliged to go there for a mere chat. Even if
the first prosecution witness was at that time in police uniform, whether or not there existed a warrant
of arrest, he must tell the appellant the true ground of the arrest. Defence of Statutory Authority
“Where an enactment authorizes the use of force, it is considered justified if an official applies any
necessary force for the purpose of achieving the aims of the statute. This authority is limited to the use
of any force as would be reasonable to achieve the purposes set out under the terms of the statute”.-
MB Vol. 2 Pg 199 For this reason, section 33 provides; A person who is authorised by an enactment to
use force may justify the use of necessary force according to the terms and conditions of that authority.
Arrest or Recapture of a Felon See section 36 of Act 29 which provides; Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 106 1. A person who by law may, with or
without warrant or any other legal process, arrest and detain another person a. may use force which is
necessary for the arrest, detention or recapture of that person, and b. may, if the arrest is made in
respect of a felony, kill the other person, if the other person cannot by any means otherwise be
arrested, detained or retaken 2. Force may be used under the subsection (1) only where the other
person, having notice or believing in the lawful arrest, avoids arrest by resistance or fight, or escapes or
endeavours to escape from custody. See R V OBOT where the appellant chased a man who had stolen
some meat and was making an escape. When he could not get him to stop in order to be arrested, he
shot and killed him. It was held that killing an unarmed escaping felon is not justified. Necessity in
Defence of Property Section 31 (f)-(h) provides; Force may be justified in the case and in the manner,
and subject to the conditions, provided for in this chapter, on the ground (f) of a necessity for the
prevention of or defence against a criminal offence; or (g) of a necessity for defence of property or
possession or for overcoming the obstruction to the exercise of lawful rights; or (h) of a necessity for
preserving order on board a vessel; or “It is the civic duty of any citizen to prevent the commission of
crime. Therefore, a person in whose presence a crime is being committed may prevent it, even if force
must be applied to do Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 107 so. . . Any force that is reasonably necessary to prevent the commission of the offence is
justifiable force. . . . someone must be attempting or committing a crime. Where there is no crime
involved, the defence would not avail an accused person.”- MB Vol. 2 Pg 200 The question then is,
would the accused succeed if the defendant had a mistaken view of events? See KENLIN & ANOR V
GARDINER & ANOR where the appellants were both scholl boys who were seen going from house to
house. This conduct raised the suspicion of the police officers around who were in plain cloths who
approached to question them, even though the actions of the boys were in itself innocent.. Even though,
the police showed their card, the children who did not know the import of it, and as a result of being
frightened that they may be accosted by strange men, one of the boys begun to run. He was however
cought by the officers. The other appellant started to run of but was also cought. When both were
cought, they strangled, struggled violently, hit and kick the police men. They were charged with
assaulting police officers in execution of their duty. They were convicted by the magistrate of the
offence but granted them an absolute discharge. They appealed. On appeal, Winn LJ, was of the opinion
that the parties did not really understand each other. The police mistook the appellants who were going
house to house reminding “members of their school rugby fifteen of the day or place at which a forth
coming match was to be played” for felons and the appellants also, not knowing the import of the Police
Warrant card mistook the police, who were not in uniform for some ‘thugs’. Winn LJ concluded by
saying; Now this case comes before this court with some tendency to put it forward as a cause célèbre, a
state trial – I say that deliberately but without any intention to be insulting to either counsel. In my own
view it is nothing of the kind. It is quit a simple and normal case where misunderstandings led to an
unfortunate consequence, which need not have involved any prosecution. Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 108 Self-defence and Defence of
Another’s Person “In recognition of the instinct of self preservation, the law is that any act done in
necessary self defence is non-criminal and justifiable. The law also considers non-criminal and justifiable
the act of a person who causes harm or uses force in the defence of another who is under attack, if
there is no reasonable means by which the person could be saved from attack.”- Criminal Law 1 Study
Guide Pg. 38 For this reason, section 37 of Act 29 provides; For the prevention of, or for personal
defence of any other person against a criminal offence, or for the suppression or dispersion of a riotous
or unlawful assembly, a person may justify the use of force or harm which is reasonably necessary
extending in case of extreme necessity, even to killing. This section also justify harm if it is for the
purposes of “. . . defence of any other person against a criminal offence, or for the suppression or
dispersion of a riotous or unlawful assembly. . .” It also provides that even if the causing of death of
another who is actually causing the offence is necessary to achieve the objectives stated in the section,
then one is permitted to do so. One must however be mindful that it is not in all scenarios involving the
situations stated in the section that will warrant the causing of death of another. Strict rules are
applicable. For force or harm, as described by the section to avail one, Mensah Bonsu in her book (Vol.
2, Pg 205) identifies three circumstances; 1. That there must be evidence that the attack was in progress.
See STATE V AMPOMAHwhere the deceased, a Moshie man, and two of three other Moshie men got
into a dispute with the appellant resulting in a fight, in the course of which the appellant used a
pounding stick, and struck the deceased with it. The appellant was tried for murder before Ollennu, J.
and convicted of manslaughter. In his judgment the trial judge said he accepted the evidence of
prosecution witness that appellant was involved in a quarrel with some Moshie men who were beating
him. He wrested a stick from one and struck him with it. The judge, however, then went on to say that
he rejected the appellant's Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 109 evidence that he was being severely beaten by six men on the ground that
he had received no apparent injury. He appealed against his conviction. In allowing the appeal,
SarkodeeAdoo J.S.C said; On the whole of the evidence the appeal is centred on the question of law as
to whether it is a case of manslaughter under . . . Criminal Code . . . or a case of extreme necessity and of
necessary self-defence. . . In our opinion the learned trial judge misdirected himself on the facts which
provide material for self-defence, and drew inferences which seem to us to conflict or are inconsistent
with evidence which he unreservedly accepted. A person assaulted is entitled to strike back, even to
death, if in self-defence as provided by . . . the Criminal Code . . . In the result, the appeal is allowed and
the conviction quashed. The appellant is acquitted and discharged. 2. That there was no reasonable
means of defending one’s self. See R V JULIEN where 3. That the force used was not excessive
considering the circumstances. See NARTEY V THE REPUBLIC. In this case, whilst the appellant was
watering some seedlings on a piece of farm land, he was challenged by the deceased, who was holding a
stick and a cutlass, as to his authority for cultivating the land. Further questioning by the deceased was
ignored by the appellant. Suddenly, the deceased hit the appellant with his stick. He attempted to hit
the appellant again but the stick was seized by the appellant who threw it away. The deceased then
attacked the appellant with his cutlass and the right hand of the appellant was cut in his attempt to seize
the cutlass. The deceased also struck the forehead of the appellant with his cutlass and he started
bleeding. Realising that the deceased had become more aggressive, the appellant rushed for his cutlass
and also inflicted wounds on the deceased who fell down. The appellant thereafter left the scene to
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 110 make a
report to the police but he fell down at home unconscious — the result of bleeding from the wounds
sustained in the fight with the deceased. He later regained consciousness at a hospital where he was
told that the deceased had died from the wounds inflicted by him, the appellant. The appellant was the
only eye-witness to the events resulting in the death of the deceased and the facts as related were given
in his cautioned statement to the police. Besides, the case of the prosecution was based solely on that
cautioned statement. At the appellant's subsequent trial for murder, the trial High Court judge in his
summing-up address, merely referred the jury to the relevant provisions of the Criminal Code dealing
with the defence of provocation, self-defence and the defence of property or possession and said, inter
alia: "In the defences I have dealt with, i.e. provocation, self-defence and defence of property and
possession, where an accused person is justified in the use of force or harm then he shall not be found
guilty and must as of right be acquitted and discharged. But I must stress that . . . the force used must be
reasonable and must be within limits . . ." Later in his address, the trial judge also said: "The accused . . .
callously continuing to butcher him [i.e. the deceased], even after he had over-powered him, until he
became unconscious and died later." The jury later returned a verdict of guilty of murder. He appealed.
In allowing the appeal, Edward Wiredu J.A.(as he then was) said; Self-Defence: I must now turn to the
question of self-defence . . . Here a person is justified in defending himself with an equal force matching
the attack on his person. And in such cases, even when death occurs out of the violence against
violence, it is said to be justified. . . . In the defence I have dealt with, i.e. provocation, self-defence, and
defence of property and possession, where an accused person is justified in the use of force or harm
then he shall not be found guilty and must as of right be Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 111 acquitted and discharged. But I must
stress, and stress again, that the force used must be reasonable and must be within limits. The force
must not be excessive." (The emphasis is ours.) See also BODUA alias KWATA V THE STATE, where the
appellant was charged with the offence of unlawfully and intentionally causing harm under the Criminal
Code, 1960. . . The complainant testified that the accused cut him several times with a cutlass without
any cause and one Gbordjor also hit him with the butt of a gun as a result of which he fell unconscious.
He later went to the police station to report the incident but before he got there the accused had
reported to the police that he had felled some palm trees and had been tapping the same, but each time
he went to collect the palm wine he found his pots broken and the wine spilt. He therefore kept watch
and saw the complainant breaking the pots with an iron rod. He tried to apprehend the complainant and
a struggle ensued in the course of which the complainant struck him a number of times with a piece of
iron rod. He used his palm wine tapping knife and inflicted on the complainant the harm the subject-
matter of the charge, and saved his own life. The trial judge in directing the jury stated that "If a rod was
used, markings will be on the skin" and pointed out to them matters which could be used to discredit
the appellant without at the same time examining the evidence of the complainant and pointing out
evidence which affected his own credibility. He further directed them that "If you also think that the
complainant broke the pots, hit the accused first with a rod, and the accused retaliated with a knife—
but the use of a knife was unreasonable in the circumstances—then you may return a verdict of guilty."
The appellant was convicted and appealed against the conviction. His counsel argued on appeal that the
trial judge usurped the function of the jury when he directed that "If a rod was used, markings will be on
the skin." He submitted further that the trial judge misdirected the jury on the plea of self-defence
because what the law required to be reasonable to sustain a plea of self-defence was not the nature or
kind of instrument or implement used but the extent of force used. In allowing the appeal, Ollennu JSC,
in delivering the judgment of the court said; Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 112 These pieces of evidence taken together
with the appellant's evidence-in-chief put quite a different picture on the whole case. They show that
the appellant saw a man doing malicious damage to his property; that person turned out to be the
complainant, the first prosecution witness; he tried to apprehend the offender and get to grips with him
and a struggle ensued; in the course of the scuffle the first prosecution witness struck the appellant a
number of times with a piece of iron rod which the first prosecution witness carried. While these
assaults and batteries were being committed upon him, the appellant used his palm wine tapping knife
and inflicted upon his assailant the harm, the subject-matter of the charge, and by that means, disarmed
the first prosecution witness, and thus saved his own life. This evidence brings the case of the appellant
well within sections 30 and 31 of the Criminal Code, 1960. The onus therefore shifted upon the
prosecution to prove that this case comes within the exception in section 32 of the Act. Therefore the
submission of learned senior state attorney that this is not a case of self-defence is untenable. . . We
agree with learned counsel for the appellant that the learned judge misdirected the jury when he told
them that what they had to consider was the nature of the instrument used in the self-defence. Section
32 of the Criminal Code, 1960, which excepts certain acts from the plea of self-defence provided by
sections 30 and 31 of the Act, is as follows: [His lordship here stated the provisions as set out in the
headnote and continued:] The plain language of the section shows that what may take away the
defence is the "amount and kind of force" used, and not the nature and kind of implement used. It
cannot be otherwise, because if to ward off a heavy blow aimed at his head with a piece of iron bar, a
man in possession of a two-edged dagger so wields the dagger gently so that it only inflicts a superficial
wound on the arm of his assailant, his defence of self-defence must succeed, because although the
dagger is a dangerous weapon, yet since only very little force was exerted in its use, it cannot be said
that its use in the circumstance is unreasonable. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 113 Unlawful Fights Section 38 of Act 29
provides; 1. A force used in an unlawful fight cannot be justified under a provision of this Act; 2. A fight is
an unlawful fight in which a person engages, or maintains, otherwise than solely in pursuance of a
matter of justification specified in this Chapter. Unlawfulness cannot be justifiable in the eyes of the law,
therefore, the above section makes express that unlike section 37, harm cannot be justified when it
comes to unlawful fights. Defence of Property A person has the right to protect his property, therefore,
section 39 makes room for scenarios where one’s property may be tampered with. The law agrees that
in such a scenario, force, may apply when necessary to expel one from tampering in any way, property
in possession of another. Section 39 provides; A person may justify the use of force for the defence of
property or possession, or for overcoming an obstruction to the exercise of a legal right, where— (a) a
person in actual possession of a house, land, or vessel, or goods, or the servant of that person or any
other person authorised by that person, may use force that is reasonably necessary for repelling a
person who attempts forcibly and unlawfully to enter the house, land, or vessel, or to take possession of
the goods; (b) a person in actual possession of a house, land, or vessel, or the servant of that person or
any other person authorised by that person, may use such force that is reasonably necessary for
removing a person who, being in or on the house, land, or vessel, and having been lawfully required to
depart from that place refuses to depart; Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 114 (c) a person wrongfully takes possession
of or detains goods, any other person who, as against the first mentioned person has a present right to
the possession of them, may, upon refusal to deliver up the goods on demand, use force, personally or
by any other person, as is reasonably necessary for recoveriing possession of the goods; and (d) a person
may use force, that is reasonably necessary for overcoming an obstruction or resistance to the exercise
by that person a legal right. NB; The force talked about in this section does not extend to killing since
human life is considered more valuable than material property. See ABEKA AND ANOTHER V THE
REPUBLIC, where the appellants were arraigned before a district court on charges of assault. Evidence
led by the prosecution established that one X., the alleged owner of a farm for some twenty years, was
on his farm together with his wife, brothers and some 30 helpers harvesting corn when they were
confronted by the appellants and some others. The appellants accused X. of stealing the corn but he
denied the accusation and claimed that the corn belonged to him. The appellants then insisted that X.
should accompany them to their town, Fianko, but he refused. Consequently, they tied him up, beat him
up and dragged him to Fianko from where they took him and some of his helpers who had also been
beaten up to the police station. In their defence, A, one of the appellants, claimed that the farm in
dispute belonged to him and that since some people had been stealing from it, he, together with the
other appellants, went to inspect the farm on the day in question and met the complainants harvesting
his corn and that he had [p.439] to use force to get “the thief", i.e. X. to the police station because X.
refused to go with them and he feared that X. might escape. A. therefore claimed that the force used
was lawful and reasonable and that injuries sustained by the complainants arose out of their struggle to
free themselves. At the end of A.'s evidence counsel for the accused submitted that in view of the claim
by both X. and A. to the farm, the jurisdiction of the court had been ousted under section 180 of the
Criminal Procedure Code, 1960 (Act 30). The trial magistrate overruled that submission on the ground
that the section was inapplicable Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 115 where the offence affected the body of one of the disputants. The
appellants were therefore convicted and sentenced to twelve months' imprisonment with hard labour
each. They appealed on the grounds, inter alia, that (i) the jurisdiction of the district court was ousted as
a bona fide question of title to land had been raised, and (ii) the sentence was harsh, having regard to
the circumstances including the nature of the offence and character of the offender. In dismissing the
appeal but varying the sentence, Ampiah J said; In the instant case, I do not think section 39 (c) is
relevant. On the particular facts of this case, it could not be said that the appellants were in actual
possession. But assuming for argument sake that they were in possession, could it be said that they
were repelling a person who was attempting forcibly and unlawfully to enter the land? I do not think so.
The complainants, it is admitted, were on the farm when the appellants came, there could therefore not
be any forcible entry which required the use of force to repel it. According to the appellants their
intention was to arrest the complainants and send them to the police station; it was not their intention
to harvest the corn on the land at the time. So that there could not be an obstruction or resistance to
the exercise of their legal rights. In the words of the first appellant: "I requested them to accompany us
to the police station; they refused; they struggled with us; in the course of the struggle the first
prosecution witness often fell down." Perhaps the appellants could avail themselves under section 39
(b). Assuming that the appellants were in actual possession, they would be entitled to use reasonable
force to remove a person who, being in or on the land has been lawfully required to depart therefrom
but has refused to depart. There is evidence on record to show that the appellants requested the
complainants to depart from the farm and accompany them to either the police station or to their town,
it does not matter which for purposes of this argument. The first prosecution witness refused and said
he was not going. If the request was lawful, as the appellants reasonably believed, Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 116 then they would have
been entitled to use reasonable force to remove them from the farm either to be taken to the police
station or to the town. The question then is was the force used in the circumstances reasonable? The
trial magistrate did not think so. In his judgment he said: "To tie a human being with a rope like a goat,
and arraign him in the sun, is a brutal act which this court has to meet with severity." Preserving Order
on Board a Vessel Section 40 of Act 29 provides; 1. The master of a vessel, or a person acting by the
order of the master, may justify the use of force against any person on board the vessel a. that is
necessary for suppressing any mutiny or disorder on board the vessel, whether among officers, seamen,
or passengers, by which the safety of the vessel, or of a person in the vessel or about to enter or quitting
it, is likely to be endangered, or b. where the master is threatened to be subjected to the commands of
any other person 2. for the purposes of subsection (1) the master or the person acting under the order
of the master and may kill a person who commits or abets a mutiny or disorder, if the safety of the
vessel, or the preservation of a person, cannot by any means be otherwise secured. Correction of a Child
or Minor or Servant The law allows a certain degree of force to be applied on certain persons for the
purposes of correction but such force should not be disproportionate. This section covers generally the
parental authority to discipline and authority of master to discipline minor servants. Section 41 provides;
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 117 1. A blow
or other force, may be justified for the purpose of correction where (a) a father or mother may correct
his or her child, who is under sixteen years of age, or a guardian, or person acting as a guardian, the
ward, who is under sixteen years of age, for misconduct or disobedience to a lawful command. (b) a
master may correct the servant or apprentice, who is under sixteen years of age, for misconduct or
default in the discharge of a duty as a servant or apprentice; (c) repealed by Act 183, section 320(2). (d)
a father or mother or guardian, or a person acting as a guardian, may delegate to any other person
whom any of them entrusts permanently or temporarily with the governance or custody of the child, or
ward the authority for correction, including the power to determine in what cases correction ought to
be inflicted; and the delegation shall be presumed, except where it is expressly withheld, in the case of a
schoolmaster, or a person acting as a schoolmaster, in respect of a child or ward; (e) a person who is
authorised to inflict correction as in this section mentioned may, in a particular case, delegate to a fit
person the infliction of the correction. 2. A correction cannot be justified which is unreasonable in kind
or in degree considering the age and physical and mental condition of the person on whom it is inflicted.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 118 3. A
correction cannot be justified in the case of a person who, by reason of tender years or otherwise, is
incapable of understanding the purpose for which it is inflicted. See CLEARY V BOOTHwhere a
schoolmaster administered in school to a pupil in school for misbehaving himself on his way to school.
The question for the court was whether the right of the schoolmaster to discipline the child covers acts
done on the way to and out of school and school hours. It was held on appeal that it was for the
effective moral training and discipline of a child the authority delegated to the schoolmaster covers the
period between home and school. Defence of Claim of Rights For a defence of claim of rights, section 15
of Act 29 provides; A claim of right means a claim of right in good faith. This is a defence that negatives
mens rea because it is founded upon a belief held by the accused person as to his or her right to a
particular chattel. Mensah Bonsu also wrote on this issue. She said “There may however be occasions
when one may hold an honest belief as to ones entitlement when such belief may not in fact be correct.
This definition thus saves from criminal liability those whose conduct is otherwise unimpeachable.” MB
Vol. 2 Pg 249 The question may then be asked, what is the basis of this rule? Mensah Bonsu sought to
provide an answer on the same page when she wrote, “The basis of the rule is that a person who is
otherwise entitled to a particular chattel may appropriate it at anytime without liability.” See ARTHUR V
THE STATE where the appellant was originally absolute owner of certain property, but he lost all his
right, title and interest therein when the property was sold by his mortgagee in exercise of his power of
sale under the mortgage deed. The appellant further had given evidence in proceedings in the High
Court as a result of which his mortgagee was ordered to convey the title to the property in question to
one Ama Serwaa who had purchased it at a public auction. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 119 Sometime after these events, the
appellant purported to sell the property in question, and obtained £G5,258 5s from the complainant by
falsely representing that he was still the rightful owner. On appeal against conviction for fraud by false
pretences it was argued on the appellant’s behalf that when he purported to transfer title in the said
property to the claimant he acted under claim of right made in good faith. In dismissing the appeal, Van
Lare JSC said [Full judgment provided below]; The trial court properly in our view rightly rejected the
alleged claim of right in good faith and it is clear to us upon a consideration of all the surrounding
circumstances that the appellant could not have acted in good faith when he represented to the
complainant that he was the absolute owner of the house. There is no doubt that the appellant knew
that his title was superseded when the house was purchased by Ama Serwa at a public auction at the
instance of the mortgagee, Bassil. He also knew that Bassil had been ordered by the High Court to
convey title in the house to the purchaser Ama Serwa in defeat of any claim of title which he might put
forward in respect of the property. Notwithstanding all this the appellant withheld such knowledge from
the complainant during the negotiations for the sale of the house by him. We are of opinion that the
withholding of such material facts from the complainant is evidence from which clear intent to defraud
must be inferred. This, therefore, completely destroys the defence of a claim of right in good faith which
is the main ground of appeal seriously argued before us. The law as we understand it is that if a false
statement or representation to the knowledge of the person making it, is made, and by this means
money is obtained and the person who gives that money does so in reliance on the false statement or
representation, then that would be sufficient to support a charge of obtaining money by false pretences.
In the instant case we find the necessary ingredients present in that the appellant falsely represented
that he was the rightful owner of the house at the time he purported to convey to the complainant from
whom he obtained a large sum of money, and as the complainant believing such false representations
paid to Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 120
the appellant such amount in the purported purchase of the house, the appellant thereby brought
himself within the mischief contemplated by the charge preferred against him. We find no substance in
any of the other grounds of appeal and in the result we dismiss the appeal. See also R V BERNHARD
where the appellant was convicted of obtaining money by threats and menaces. She had been a
mistress of a married man who promised to pay some money to her when they parted. He failed to pay
the money and as a result she threatened him that if he did not pay the money which was in areas, she
would send his picture and his letters to his wife as well as public announcement in a newspaper. Her
defence to the charge was that she made that demand under a claim of rights. The court held that a
person has a claim of right if he is honestly asserting what he believes to be a lawful claim even though it
may be unfounded in law or on facts. The emphasis was on the honest belief of the claim. She was
therefore not guilty. Nature of Permissible Force One is justified when he or she uses force to prevent
any obstruction which may come his or her way from others when in the process of using lawful force
on another in the manner specified by the Act, 29. For this reason, section 43 of Act 29 provides; A
person who, in justifiably using force against another person, is obstructed or resisted by the third
person, that is reasonably necessary for overcoming the obstruction or resistance; and may, if the
obstruction or resistance amounts to a criminal offence or to abetment of a criminal offence, use force
in accordance with this chapter with respect to the use of force in case of necessity for preventing a
criminal offence. Section 45 of the Criminal Offences Act also caters for one who aids a person in using
justifiable force. The section puts that person who aids in the same position as the one whose act of
force is justified. The section provides; Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 121 A person who aids another person in a justifiable use of force is justified to
the same extent and under the same conditions as the other person is justified. Other Common Law
Defences There are certain defences that may avail one in common law but has not been specifically
mentioned by the Criminal Offences Act. Among these are;  Defence of necessity Necessity here is not a
defence on its own but it serves as an important ingredient in determining whether justifiable harm has
been caused. This does not mean that the court will not accept this defence when raised. It is likely that
the courts will treat such defence just as automatism. A crime may be committed where the offender is
caught in a situation where he has no alternative but for two unpleasant ones. “In that situation, it is
understood when the choice that is made, and which is the lesser of the two evils, involves the
commission of an offence. It is not an easy defence to establish since the imperatives of a situation as
they appear to a person ina adifficult situation may look completely different when the situation is later
subjected to objective scrutiny”- MB Vol. 2 Pg 253-254  Defence of Accident “This is a defence that is
rarely set up since in most cases involving accident properly so called, it is unlikely that criminal
proceedings would be initiated in the first place. It is not a defence provided under the code. . . To
succeed, there must be evidence that there was no negligence whatsoever, and that the events that
caused the harm were entirely outside the control of the defendant.”- MB Vol. 2 Pg 265-256
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 122  Duress
Duress is not specifically mentioned in Ghana’s Criminal Offences Act but it is a possibility that crimes in
Ghanaian society could be committed under duress. Duress as a defence is “premised upon the fact that
most human beings do acts which they would otherwise not do when subjected to certain levels of
coercive pressure by their parties”.- MB Vol. 2 Pg 179. See R V STEANE where the accused had assisted
the enemy through broadcasting of propaganda material. His defence was that he had done those acts
under duress because his family had been threatened. Lord Goddard in his judgment said; In this case,
the court cannot but feel that some confusion arose with regards to the question of intent by so much
being said in the case with regard to the subject of duress. Duress is a matter of defence where a
prisoner is forced by fear of violence or imprisonment to do an act which in itself is criminal. If the act is
a criminal act, the prisoner may be able to show that he was forced into doing it by violence, actual or
threatened, and to save himself from the consequences of that violence . . . before any question of
duress arises, a jury must be satisfied that the prisoner had the intention which is laid in the indictment.
Duress is a matter of defence and the onus of proving it is on the accused. The Defence of Consent
Consent in itself is a defence to a criminal charge. Hence if one consents that harm be inflicted on him or
her, then, until the consent is revoked, any harm which the consent contemplates will be justifiable.
Consent is can be either a question of exemption or justification and this may go to negative the
existence of an offence. When such consent affects the circumstances that render an act a prohibited
one, then, such consent will become an exemption to criminal liability. However, when an act involves
the use of force or causing of harm to another person is in issue, then, such consent will become a
justification for an otherwise crime committed. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 123 The question may then arise, that on
what philosophy is consent as a matter of justification based? Mensah Bonsu in her book (Vol. 2)
provides an explanation or an answer. She wrote; The recognition of consent as a matter of justification
is premised on the philosophy that acts done under certain circumstances cannot be wrongful because
an individual has personal autonomy and liberty of action in making choices. Therefore, when the
choices have been made, anyone relying on the consent freely given by the person in question cannot
be said to have committed a wrong against that person.-MB Vol. 2 Pgs 273 &274. Since a consent which
is validly given by a person for force to be used on him or her may exonerate the other from criminal
prosecution, there are strict rules that are applicable. These rules are to ascertain the voluntary nature
of the consent purported to have been given. These rules are specified in section 14 (a)-(h) of Act 29.
The said section provides; In construing a provision of this Act by where it is required for a criminal act
or criminal intent that an act should be done or intended to be done without a person's consent, or
where it is required for a matter of justification or exemption that an act should be done with a person's
consent, (a) a consent is void if the person giving the consent is under twelve years of age, or in the case
of an act involving a sexual offence indecency, sixteen years, or is, by reason of insanity or of immaturity,
or of any other permanent or temporary incapability whether from intoxication or any other cause,
unable to understand the nature or consequences of the act to which the consent is given; (b) a consent
is void if it is obtained by means of deceit or of duress; (c) a consent is void if it is obtained by or under
the exercise of any official, a parental, or any other authority; and the authority which is exercised
otherwise than in good faith for the purposes for which it is allowed by law, is for the purposes of this
section, power unduly exercised; Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 124 (d) a consent given on behalf of a person by the parent, guardian of that
person, or any other person authorised by law to give or refuse consent on behalf of that person, is void
if it is not given in good faith for the benefit of the person of the person on whose behalf it is given; (e) a
consent does no effect if it is given by reason of a fundamental mistake of fact; (f) a consent is, for the
purposes of this section, obtained by means of deceit or duress, or of the undue exercise of authority, or
to have been given by reason of a mistake of fact, if it would have been refused but for such deceit,
duress, exercise of authority, or mistake; (g) the exercise of authority, for the purposes of this section, is
not limited to the exercise of authority by way of command, but includes influence or advice purporting
to be used or given by virtue of an authority; (h) a person shall not be prejudiced by the invalidity of a
consent if that person did not know, and could not by the exercise of reasonable diligence have known,
of the invalidity. The right to consent has certain limitations. This means that, though someone can give
consent for force or harm to be used or inflicted on him or her, there are however certain situations
where such consents are not recognized by law. Such situations are outside the individual’s liberty to
give consent. For this reason, section 42(a)-(g) provides; The use of force against a person may be
justified on the ground of his consent, but— (a) the killing of a person cannot be justified on the ground
of consent; Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
125 (b) a wound or grievous harm cannot be justified on the ground of consent, unless the consent is
given, and the wound or harm is caused, in good faith, for the purposes or in the course of medical or
surgical treatment. (c) consent to the use of force for the purposes of medical or surgical treatment does
not extend to an improper or negligent treatment. (d) consent to the use of force against a person for
purposes of medical or surgical treatment, or otherwise for the benefit of that person may be given
against the of that person by the father or mother or guardian or a person acting as his guardian, if that
person is under eighteen years of age, or by a person lawfully having the custody of that person if that
person is insane or is a prisoner in any prison or reformatory, and, when so given, cannot be revoked by
that person; (e) where a person is intoxicated or insensible, or is from a cause unable to give or withhold
consent, force is justifiable which is used, in good faith and without negligence, for the purposes of
medical or surgical treatment or otherwise for the benefit of that person, unless a person authorised by
that person or by law to give or refuse consent dissents from the use of that force; (f) a party to a fight
whether lawful or unlawful, cannot justify, on the ground of the consent of another party, force that
party uses with intent to cause harm to the other party; (g) a person may revoke a consent which that
party has given to the use of force against that person, and his consent when so revoked shall have no
effect or justify force. (the exception to this provision regarding marriage has been omitted in the
reinstatement as being unconstitutional) Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 126 Mistake The Criminal Offences Act
contemplates two types of defences; mistake of law and mistake of fact. This is governed by section 29
of Act 29 which provides; (1) A person shall not be punished for an act which, by reason of ignorance or
mistake of fact in good faith, that person believes to be lawful. (2) A person shall not, except as in this
Act otherwise expressly provided, be exempt from liability to punishment for an act on the ground of
ignorance that the act is prohibited by law. This section makes mistake of facts in good faith a defence
to a criminal charge. See NYAMENEBA & OTHERS V THE STATE where the appellants who were members
of a religious sect had been growing "herbs of life" for four years or more. They used the herbs publicly
for invocation, at their worship, for food and medicine. Upon report being made to the police against
the sect, the police investigated and found the herbs to be Indian hemp. The appellants were tried and
convicted under section 49 of the Pharmacy and Drugs Act, 1961 (Act 64). At the trial a chemist certified
that the herbs were Indian hemp but the prosecution failed to call the chemist to be cross-examined on
his report even after the court had so directed. They then appealed against their conviction. In allowing
the appeal, Ollennu JSC said; There is no question at all upon the evidence that the appellants honestly
though erroneously, believed that the stuff is herbs of life and nothing else. The learned circuit
judgment himself impliedly found as a fact that the appellants honestly believed the stuff to be herbs or
tree of life, but that the government chemist's report calls the same thing Indian hemp. . . Learned
senior state attorney at first sought to support the conviction, and referred the court to section 29 (2) of
the Criminal Code, 1960. We must observe that from the ratio decidendi in it, the judgment of the circuit
court is also based upon the principle in the said section 29 (2) of Act 29. . . Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 127 These subsections of the section
put into a statutory form the general principle of law that while ignorance of the law is no defence,
ignorance of fact is a complete defence. The question is, to which class of ignorance does the ignorance
of the appellants in this case belong; the class of law, or the class of fact? Section 49 of the Pharmacy
and Drugs Act, 1961,under which the appellants were charged makes absolute prohibition of cultivation,
possession or smoking of Indian hemp. Therefore no one can be heard to say that he does not know of
the existence of the law which prohibits possession, etc. of Indian hemp. That being so, if the case of the
appellants had been that they knew that the stuff is Indian hemp, but did not know that there is law
prohibiting its possession etc., their plea would be a plea of ignorance of the law; in which case the
circuit judge would be justified in directing his attention to and applying section 29 (2) of Act 29, as
apparently he did. But their case which is so obvious and convincing that the circuit judge had no
difficulty in accepting, is that they are honestly ignorant of the fact that the herbs in question are Indian
hemp. Theirs is therefore a plea of ignorance of fact which under section 29 (1) of Act 29 is a good
defence. It is therefore to section 29 (1) that the circuit judge should have directed his mind. The
absolute prohibition of possession of Indian hemp made by Act 64, can only arise if the prosecution
proves possession with knowledge. However, the famous maxim, ignorantia juris neminem excusat,
[meaning, ignorance of the law is no excuse,] has been admitted into our Offences Act under section
29(2). It therefore affords one no defence that he did not have knowledge of the existence of a
particular law. It must also be noted that defences based on customary law tend to be regarded as
falling within the category of mistake of law. Reliance on a custom may not afford one a good defence.
See FOLI VIII & OTHERS V THE REPUBLIC where The appellants were charged before the circuit court
with conspiracy to commit crime contrary to sections 23 (1) and 24 (1) of Act 29, and causing harm to a
corpse they had cremated without lawful authority. One of the appellants' ground of defence was that it
was an established and long-standing custom in their locality that any person, such as Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 128 the deceased, who had
violated custom but was not purified before dying should not be accorded a decent burial but should be
cremated. The deceased's head of family and the paramount chief of the locality, the first appellant,
gave evidence testifying to that custom. The appellants' further defence was that by cremating the
corpse they genuinely believed that they were acting in consonance with an accepted custom and did
not know that they were offending against any law of the land. On their conviction on both counts, they
appealed to the High Court. In dismissing the appeal, Kingsley-Nyinah J said; Subsection (2) of section 29,
also provides that: "A person shall not, except as in this Code otherwise expressly provided, be exempt
from liability to punishment for any act on the ground of ignorance that the act is prohibited by law." In
such a case as this instant one, charging conspiracy, the appellants' ignorance of a material fact is
completely irrelevant in relation to the conspiracy charge, because the conspiracy touches, and
relevantly concerns, a statutory, and not a common law, offence. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 129 INCHOATE OFFENCES INTRODUCTION It
must be noted that the criminal law is primarily to protect the society from conduct that are injurious to
the society. In so doing, the law finds it necessary to arrest acts which precede the successful
commission of a crime. For this reason, certain categories of offences have been identified and are
collectively known as inchoate offences. ‘Inchoate’, in normal English, suggests ‘incompleteness’, hence
‘inchoate offences’ suggests incomplete offence, that is, certain conducts geared towards the successful
commission of a substantive offence. The Ghanaian Criminal Law has identified certain acts which fall
within this category of offences. These are attempts, preparation, conspiracy and accessorial liability.
Each of these is going to be delved into and discussed fully. ATTEMPT Ordinary usage of the word
attempt has to do with an act which was begun but not completed or an act which did not achieve its
objective. In criminal law however, attempts bear a broader meaning covering not only instances where
a criminal scheme is not completed in relation to its objective but also criminal acts which are completed
but failed to achieve its objectives. Section 18 of the Criminal Offences Act deal with attempts in general.
 Situations considered as attempt Section 18(1) (a)-(d) are situations considered as attempts. The said
section provides; (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 (a) By reason of the
imperfection or other condition of the means, or (b) By reason of the circumstances under which they
are used, or Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
130 (c) By reason of the circumstances affecting the person against whom, or the thing in respect of
which the criminal offence is intended to be committed, or (d) By reason of the absence of that person
or thing. Prof. Mensah Bonsu in her book, “THE GENERAL PART OF CRIMINAL LAW; A GHANAIAN
CASEBOOK, Vol. 2,” @ 459 – 460 outlines certain situations that amounts to attempt. She was of the
view that “for the purpose of this offence, it does not matter; 1. That the means used by the person
could not have achieved the purpose he or she set out to achieve, eg a person gives a baby he wanted to
kill a poisonous fruit, ignorant of the fact that it would not harm the baby unless the skin has been
punctured in some way. Even though the fruit passes through the baby’s alimentary canal without doing
any damage, it would still constitute an attempt; 2. That the person who was the subject of the crime
was not within the vicinity of the locus of the crime at all at the time the attempt to commit the crime
was initiated; eg shooting into an intended victim’s room with the intention of killing the person whilst,
in fact, the person is absent from the room. 3. That the intended victim was so strong that he
overpowered the thugs sent to murder him, or had such a strong constitution that the poison could not
harm him; 4. The person died of natural causes despite the fact that an effort to kill the person by some
other means had been made. 5. That unknown to the accused, the substance he believed to be a
narcotic was in fact a harmless powder.” Twumasi, in his book ‘CRIMINAL LAW INGHANA’ comments on
the type of impossibility envisaged by the Ghanaian law. He wrote, Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 131 “the law on attempt proceed on the basis
that if it had not been for the imperfection of the means, the accused would have succeeded in his
criminal objective. . . it cannot be based on supernatural or magical powers. . . This does not suggest
that a person cannot be convicted for attempting to do the impossible, far from that; in fact under
section 18(1) of our code [and now the Criminal Offences Act] a person can properly be convicted for
attempting to do the impossible. The essential thing, however, is that the condition of the thing (if it be
one of an impossibility) must be a common fact in life.” He goes on to give an example of one with the
intention to steal money, puts his hand in another’s pocket when in fact there was nothing in the
pocket. If there was money, it would have been stolen but since there was none, then, it becomes
impossible to steal because what is to be stolen is non-existent. See R V SHIVPURI where the appellant
attempted to import illegal drugs but the substance he actually imported turned out to be a harmless
one. On the question of whether his act amounted to an attempt to import dangerous drugs, it was held
that he was guilty of the attempt. It must be noted that the section makes it clear that attempt under
the Act is completed when the steps taken leads to an “unavoidable conclusion” as to the purpose of
the accused person’s action(s) – MB, Vol. 2 @ 459 and the act done must reflect “ an irrevocable step
towards the commission of the offence” – MB, Vol. 2 @ 460. See R V BUTTON where the accused took
part in a special race in which he was not qualified and won. He participated under a false name. Before
he could claim the prize, he was found out. He was convicted for attempting to obtain by false pretence.
In upholding the conviction, Matthew J said; . . . whether the intention of the defendant, when he
entered for the races, was to obtain the prizes, and whether he made the representations with that
intention. After analysing the defendant’s conduct, he continued; Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 132 It is also said that some other act had not
been done to make the offence complete, and that he could not rightly be convicted because it was not
shewn that he had applied for the prizes and that the criminal intention was exhausted. The argument is
exceedingly subtle, but unsound. In fact, he was found out before he had the opportunity of applying for
the prizes, as no doubt he otherwise would have done. The pretences which the prisoner made were
not too remote, and the conviction was good . . .  Penalty for the offence of attempt The penalty can be
found in section 18(2) which provides; A person who attempts to commit a criminal offence and except
as otherwise expressly provided in this Act, is liable to be convicted and punished as if the criminal
offence has been completed. The effect of this section is that the punishment for criminal attempt is the
same as that of the substantive offence, except as otherwise provided.  Other offences committed in
the process of attempt It is possible that in attempting to commit a criminal offence, other substantive
offence(s) may be committed. Thus, section 18(3) envisages such a situation and provides; Where an act
amounts to a complete criminal offence, as defined by a provision of this Act, and is also an attempt to
commit any other criminal offence and is liable to be convicted and punished under either provision or
under this section. This section gives the prosecution the discretion to choose on prosecuting either of
the two offences, that is, to prosecute either the attempt or the substantive offence. See DUA V THE
STATE wherethe appellant, after threatening to kill his wife, inflicted serious injuries on her. He
contended that he had not intended to kill her but merely to wound her Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 133 so he could not be guilty of attempted
murder. It was held that the necessary intent to kill had been proved as well as the fact that she nearly
died from the attack. Therefore the offence had been made out, and it was proper to prosecute him
either under this provision, or under the provisions relating to causing harm. However, when the
prosecution is saddled with a situation where there are two ‘attempts’ which may be charged, then, the
prosecution in other to secure a conviction on either attempts, must be able to fit the facts into that
‘attempt’. This can be done by ascertaining “how far the evidence in the instant case can support. . .”
the charge of attempt. This can be done by analyzing the ingredients of the two substantive offences
(i.e. for both attempts). The accused may be acquitted and discharged on either attempt if the
ingredients of that attempt are not found to support the facts of the instant case. See REPUBLIC V
DARKO.In this case, the accused on the night of 27 March 1970, with a loaded double – barrel gun, went
to the house of the first prosecution witness who was conversing with the second prosecution witness in
a room and shot at the first prosecution witness but the gun did not fire. As a result of a struggle which
followed the unsuccessful attempt, both the first and second prosecution witnesses overpowered the
accused and seized the gun. He was subsequently arrested and charged with the offence of attempting
to cause harm by the use of offensive weapon It must be noted that, the court was of the view that it
was a proper case of attempted murder and hence invited the leaned State Attorney to satisfy the court
whether it could call the accused to answer for a higher offence, that is, attempted murder. The
prosecution declined this invitation. To the prosecution, the accused could be charged with either of the
offences under section 46 of Act 29 which deals with murder or under section 18(1) and 70 of Act 29
which also deals with attempting to cause harm by the use of offensive weapon. Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 134 Edward Wiredu J (as he
then was), in his ruling, said, he was constrained to withdraw the case from the jury and will therefore
not call on the accused to answer the charge and subsequently acquitted and discharged the accused. It
is very important now to read the whole judgement to ascertain what the court’s reasoning was for the
acquittal and discharge. In his judgement, Edward Wiredu J proceeded to see how far the evidence in
the instant case could support sections 46, 18(1) and 70 and this was done by analyzing the essential
ingredients of the substantive offences having recourse to sections 47 and 76 for murder and unlawful
harm, respectively. After this analysis, he said; When the definition of unlawful harm is applied for
analysis with the two offences contemplated under sections 46 and 70 of Act 29 we have the following:
Attempted murder is an attempt to cause intentional death by harm intentionally inflicted. Attempted
causing harm is an attempt to cause intentional harm by the intentional use of an offensive weapon.
Therefore most of all the essential ingredients of attempting to cause harm form part of the essential
ingredients of attempted murder, but the characteristic difference between the two lies in the nature of
“intent”. He continued; In attempted murder, not only must the attempt aim at causing unlawful harm
but that the harm must aim at causing death, whereas in the case of attempting to cause harm the
attempt must aim at causing harm and no more. . . This clearly shows that the mens rea, that is, the
intent, for the two charges are different. It was therefore concluded that in so far as the accused aimed
the loaded gun at his target and expressed an intention to kill, he should have been charged under
section 46 and could not be called upon to answer the charge laid under sections 18 (1) and 70.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 135 
Defences Section 18 (4) provides for defences, etc. The said section provides “A provision in this Act with
respect to intent, exemption, justification, or extenuation, or any other matter in the case of any act,
shall apply with the necessary modifications to the case of an attempt to do that act”.  Mens rea of
attempt In cases of attempt, the mens rea is very important, because the mens rea will determine the
kind of substantive offence the accused sought to commit in other to charge the accused with the
attempt of that substantive offence. For example, in Darko’s case, the prosecution charged him with a
substantive offence where in fact the mens rea pointed to another substantive offence [but for the
imperfection of the means], hence an attempt. The consequences, as discussed early on, were the
acquittal and discharge of the accused. It must be noted however, that the mens rea is ascertained
through the physical manifestation (conduct) of the accused towards the commission of a crime. In
summing up, it can therefore be conveniently said that the mens rea of attempt (to commit a
substantive criminal offence) is the same as that of the substantive offence the person sought to
commit. NB. It is important to note that “impossibilityof performance is no answer to the charge” (eg.
Shivpuri’s case). Also, in HAUGHTON V SMITH it was held that an attempt to handle stolen property
could still be punished even though the subject matter was not accessible to the accused person. Also,
“a voluntary abandonment of a plan to commit an offence or a change of heart is no answer to the
charge if what the accused had done in the meantime constitutes an attempt” for example R V
LANKFORD where a man climbed the chimney to gain entry into a house in other to commit a sexual
offence but voluntary abandoned his plan was held guilty for a criminal attempt. – Prof. Ofori
Amankwah in his book “OUTLINE OF CRIMINAL LAW LECTURES” Pg. 45 Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 136  Actus reus of attempt The nature for
the actus reus of attempt differs from that required for the substantive offence the accused person
sought to commit. The focus in the case of attempt is on the question, how far must the accused
person’s action go in other for the person to be guilty of attempt? Both the Criminal Offences Act and
the common law offer no clear answers.- CRIMINAL LAW II; STUDYGUIDE by Dr. Elizabeth Archampong.
To address this problem there are certain competing theories that exist on this issue and it is not a
convention that judges should stick to a particular one all the time. These theories are; a. The proximity
rule This is more of like the ‘wait and see’ tactic. This theory somehow reflects the American penal code
which prescribes a “substantial step”. The idea here is ‘can the accused be said to have taken some
substantive step towards the realization of his criminal intent?’ The merit of this theory is that it sustains
conviction when the evidence is available. However, a serious defect in this theory is that it may be too
late in preventing what may otherwise be preventable. See KYPRIANON V REYNOLDS where K said to a
group of drug peddlers “what do you got tonight boys, harsh or heroin? I got some money upstairs” K
then noticed that there were some police officers around listening to the conversation and looking on.
He was then arrested before he could run with the money. It was held that K was not guilty of
attempting to use illicit drugs. See also PEOPLE V RIZZO where four armed persons set out to rob an
accountant of a company who was going to the bank for his company’s payroll. They however did not
find him when they went to the bank. The police, being aroused by their suspicious movements,
arrested them. The court, in dismissing the case, commended the police for their swift action by
preventing robbery, however, they acted too precipitously in effecting the arrest. Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 137 Again, in R V ROBINSON,a
jewelry shop owner pretended that his shop had been robbed, by tying himself, hand and foot. This was
done with the intention to make a claim on his insurers, however at that time, no claim had been made.
He was held not guilty of attempting to defraud his insurers b. The equivocality rule Propounded by
Salmond J, it is to the effect that an attempt is an act of such a nature that suggest sinister motive.
However, a criminal act which is in its face innocent is not a criminal attempt. ‘In DAVY V LEE, the court
noted, ‘the actus reus necessary to constitute an attempt, is complete if the prisoner does an act which
is a step towards a commission of a specific crime, which is immediately and not remotely connected
with the commission of it, and doing of which, cannot be reasonably regarded as having any other
purpose than the commission of the specific crime.’ c. The cinematographic rule Propounded by J.W.C.
Turner. He was of the view that cinematography should be used in ascertaining whether there has been
criminal intent or not. If they were of the view that there was a sinister or criminal design, then the
accused will be guilty. He was of the view that an audience should be pictured being showed the steps
of the accused and then stop at a point and seek from them what the accused wanted to do. The
learned jurist said ‘show to the audience, so to speak, the steps taken by the accused, then suddenly
stop the strip and ask the audience to what end the acts of the accused were directed. If they will
suggest a sinister or criminal design, then an attempt has been made by the accused person’ In R V
GEORGE, it was held that the mere posting of a letter directing another person to procure another
person to forge currency notes was sufficient attempt to commit forgery and is punishable as a criminal
attempt. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 138
For more information on these theories, read Prof. Ofori Amankwah’s book at pages 47-49  Attempt to
commit an offence of strict liability It is very important to note that an important ingredient, also at the
center of the crime of an attempt to commit a particular offence is the “INTENT” (which is the mental
element). Relying only on the actus reus, it can be said then that no criminal offence had been
committed since the crime is incomplete. For offences of strict liability, it is only the actus reus which is
taken into consideration, hence, once an act is committed then one will be liable. For this reason, it is
impossible to have an attempt to commit an offence of strict liability.  Attempt and recklessness and
negligence Can one be charged with an attempt to be reckless or negligent? Clearly, the answer is no.
On this, Twumasi in his book, at page117 wrote; . . . a charge of attempt to commit an offence which
involves negligence or recklessness is simply not a practicable preposition. Either a person has been
negligent or reckless or he has not. He goes on to create an example; A person cannot be said to have
attempted to omit a duty of care owed by him to his neighbor, neither can we sensibly say that a very
low degree of negligence is attempt while a high one is the substantive offence. In the same vein, he
again sites Adusi J (as he then was) in the case of ILLIASU V THE REPUBLIC where he said; I must confess
nevertheless, that I am in some doubt as to whether there is such an offence as attempting to demand
money with menaces or by means of threat; there is either a demand by means of threat or there is not.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 139
PREPARATION At Common Law, there was a lot of wrangling when it came to issues of knowing whether
an act constituted preparation or a criminal attempt. This is because at common law, an act which
merely suggests preparation is not punishable but attempts were. In the Ghanaian jurisdiction, this
difficulty has been relaxed under section 19 of the criminal Offences Act which deals with preparation.
The said section provides; A person who prepares or supplies, or has in his possession, custody, or
control, or in the possession, custody or control of any other person on his behalf, any instruments,
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 any forgery, or any felony shall be liable to punishment in like manner as if that person had
attempted to commit that crime. It must be noted that this provision caters for certain crimes where
there can be said to be preparation and these are “. . . life is likely to be endangered, or any forgery, or
any felony”. However, whatever be the case, the Criminal Offences Act makes all cases of preparation
punishable “. . . in like manner as if that person had attempted to commit that crime” Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 140 CONSPIRACY Conspiracy
is also an inchoate offence. This can be defined as an agreement between two or more persons to
commit a crime. The Criminal Offences Act makes provision for the offence of conspiracy. Section 23(1)
of Act 29 provides; Where two or more persons agree or act together with a common purpose for or in
committing or abetting a criminal offence, whether with or without a previous concert or deliberation,
each of them commits a conspiracy to commit or abet that criminal offence. Ingredients 1. Involves at
least two persons (plurality of minds) 2. There must be an agreement to act together for a common
purpose and/or 3. Acting together with a common unlawful purpose.- M-B vol. 2, Pg 386 1. Plurality of
minds This offence requires at least a minimum of two persons since it involves the meeting of minds for
a common unlawful purpose. The section provides “where two or more persons. . . ” The type of
persons envisaged under this section can be met when there is the involvement of natural and/or
artificial persons acting together for a common unlawful purpose. Artificial persons here, refer, for
example, to limited liability companies. Here, recourse will be had to the persons directing the affairs of
the company by lifting the veil of incorporation. NB “Owing to this two-person requirement, one person
only cannot be guilty of conspiracy”- MB Vol. 2 Pg 387. See BLAY V THE REPUBLIC FACTS; The appellant
represented to the complainant that if the complainant could produce ¢4,800, he would invoke a spirit
which could multiply that sum. After some persuasion from the appellant, the complainant Downloaded
by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 141 paid the £G2,000 in
two instalments of £G400 and £G1,600. The appellant then took the complainant about midnight to mile
12 on the Accra-Winneba road and the Teshie beach on three occasions. On two of these occasions, the
appellant spoke and a voice replied to the hearing of the accused. The complainant was finally given a
pillow case containing some items with instructions not to open it till three days had elapsed. When he
opened the pillow case, it contained stones and bundles of newspapers cut into the size of currency
notes. The appellant was convicted and sentenced to three years' imprisonment with hard labour on
two counts of (a) conspiracy and (b) defrauding by false pretences. He appealed against the conviction
and sentence. HELD; in allowing the appeal in part, the court, per Archer J (as he then was) commenting
on the issue of conspiracy said; It was not proved by the prosecution that the voice of the alleged spirit
was that of a human being. Moreover the learned trial circuit judge could only observe in his judgment
that the voice was human-like. Conspiracy involves agreement between two or more human beings and
not between one human being and an unknown doubtful voice at midnight. The learned state attorney
conceded at the beginning of his arguments that the case of conspiracy was weak and that he could not
support the conviction. Accordingly the appellant's conviction on the first count of conspiracy is quashed
and the sentence of three years imposed is hereby set aside. . . In the present appeal, the appellant was
charged "with a person not traced" but as the prosecution attempted to equate the humanlike voice
with the person not traced without proving that the voice was that of a human being, the charge of
conspiracy could Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 142 not stand. The voice could be that of a parrot or indeed the alleged spirit things which are
not regarded as human beings or persons. It must however be noted that one person can be guilty of
conspiracy. This can be so when his alleged co-conspirator(s) is/are persons unknown or persons not
otherwise amenable to justice, example an infant. In relation to spouses and conspiracy, Prof Ofori
Amankwah in his book wrote; The problem area is in relation to husband and wife who are treated in
law as one person. It has been held in R v Mawji by the Privy Council that this unity applies even to
polygamous marriages. In SHAW V DPP a husband and a wife, together with other persons, were
convicted of conspiracy to corrupt public morals. . . The court held that while husband and wife are one
person in law, if they act in concert with other persons, all of them can be convicted of criminal
conspiracy. Case; AMUKYI V THE REPUBLIC FACTS; The appellant allegedly made a representation to two
fishermen, the complainants, that he had imported some outboard motors for sale. In the course of the
sale negotiations, the appellant's wife appeared on the scene and supported the appellant's story. After
reaching an agreed price, the complainants paid the appellant the sum of ¢32,000 through his wife who
handed over the money to him. On the appointed day for the delivery of the outboard motors, the
appellant allegedly brought some men in fake military uniform who beat the complainants up severely
and accused them of conspiring with the appellant to steal outboard motors from the harbour. The
complainants did not in effect receive the delivery of the promised outboard motors. They made a
report to the police and the appellant and his wife were arrested and jointly charged and tried for the
offences of conspiracy to Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 143 defraud and defrauding by false pretences. Both denied the charges in
their cautioned statements to the police and at the trial put up a plea of alibi, i.e. being at two different
places at the time of the commission of the alleged offences. At the close of the prosecution's case, the
trial circuit court judge overruled defence counsel's submission of no case after considering the
prosecution's case including the cautioned statements of both accused. In his final judgment, the trial
judge accepted the wife's plea of alibi and acquitted her but rejected the appellant's plea of alibi and
convicted him, after acting upon the cautioned statement of the appellant's wife—a co-accused—which
he said made him believe the evidence of the complainants. On appeal against the conviction, HELD;
there was no significant difference either as to fact or law which affected the appellant and not his wife,
a co-accused, who was acquitted on a plea of alibi. The evidence of the complainants which was the
same as against the appellant and his wife implied that both accused were present and a plea of alibi
could not avail them. In the circumstances, the trial judge had misdirected himself on the treatment of
the credibility of the complainants without pointing out clearly in his judgment what significant
differences as to fact or law affected the appellant but not his wife. In the event the appellant's
conviction could not stand and would be quashed. Case; KAMBEY AND OTHERS V THE REPUBLIC FACTS;
The seven appellants and others from the Duusi village in the Upper East Region set out to harvest
dawadawa fruits. As they were about to carry away the harvested fruits their right and title to the land
and the ownership of the dawadawa fruits were seriously and effectively challenged and disputed by a
group of people from Gbane village. On the arrival of the police the combatants fled from the scene
leaving behind two deceased persons with an arrow each buried in their bodies. At the trial of the seven
appellants for the Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 144 murder of the two victims at the High Court, the first and second prosecution witnesses
were the only eyewitnesses called by the prosecution. Although they were present at all material times
none of them could identify any of the appellants as the one who shot the arrows at the two deceased
persons. Neither of them could say they saw or observed any one or more of them armed with or in
possession of arrows. And there was no conclusive evidence as to the cause of death of the victims of
the shooting. In his summing up, the trial judge directed the jury that one of the essential ingredients
constituting the offence of murder was that the unlawful harm was inflicted upon the two deceased
persons by none other than the seven accused persons. The jury returned a verdict of guilty. In the
instant appeal by the appellants against their conviction for murder, counsel for the State argued that
even if the conviction was improper, the court should on the evidence, consider substituting the
alternative and lesser offence of unlawful and riotous assembly under section 154 of the Criminal
Procedure Code, 1960 (Act 30). HELD; In allowing the appeal, the Court of Appeal, per Lamptey JA, said;
Suffice it to record that in the instant appeal there was no evidence to show that the seven appellants
together with the other women did set out to commit a felony nor that they knew that they would be
opposed by others. They had set out to pluck and harvest dawadawa fruits and for that purpose were
armed with "pluckers." There was no evidence from the first and second prosecution witnesses that any
of the seven appellants was armed with bows and arrows. There was no evidence from them that any
one of the seven appellants shot an arrow or arrows at the deceased persons. .. It may be fair to ask
what was the clear and convincing evidence led by the prosecution which proved the . . . essential
ingredients of Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
145 murder? There was no evidence on record to show that any of the seven appellants inflicted any
harm on the deceased persons. The first and the second prosecution witnesses even though they stood
face to face with the seven appellants did not say and could not say that they each saw and identified
any one of the seven appellants as the one who fired any arrows. Indeed neither the first nor the second
prosecution witness testified that during the confrontation with the seven appellants they each saw and
observed any one or more of the appellants armed with or in possession of a bow or an arrow or both.
In their statement of defence six of the appellants stated that they held “pluckers” while the first
appellant stated that he held his walking stick. It is therefore plain and clear that the finding of the jury
that the prosecution discharged the burden of proof is plainly and indisputably perverse, more
particularly, as the seven appellants were not also charged with the offence of conspiracy to commit
murder. We are satisfied that there was no clear and convincing evidence before the court from which
the jury could find that the unlawful harm was caused by any one or more of the seven appellants. Thus
an essential ingredient of the capital offence of murder was not proved by the evidence. We are
satisfied that the verdict of the jury was for this reason perverse. It ought to be set aside. We find that
the trial judge failed in his duty to direct the jury properly by non-direction. It is now necessary to set
out the law on this issue. 2. Agreement This can be said to be the actus reus of the offence of conspiracy
even though agreement is an attribute of the mind. It is very important that the minds of the alleged
conspirators Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
146 are ad idem. The mere fact of having been given information about a crime does not make one a
conspirator. The agreement may be referred to a particular time or place, as when a meeting is
organized. See AZAMETSI V THE REPUBLIC. In that case, the first appellant was head of a fishing group
that decided to offer human sacrifice to the sea-god for a bumper harvest. The victim who was also the
member of the group was subsequently killed in the house of the first appellant. The killing was
witnessed by the first appellant and his wife after which the first appellant and others made
arrangement for the disposal of the body. He was convicted, among others, of conspiracy to commit
murder. On appeal against the conviction, the court held that there was enough evidence of a common
unlawful purpose and therefore he was guilty of the offence of conspiracy. Azu Crabbe CJ, said; The
crime of conspiracy consists in an agreement or acting together by two or more persons with a common
purpose for or in committing or abetting a crime, whether with or without any previous concert or
deliberation. It is not always easy to prove agreement by positive evidence, but this can be inferred from
the conduct and statements made by the accused. What the jury had to decide was: was there such a
common purpose? and was each of the appellants a party to it, whether they corresponded with one
another or not and whether one knew the other was in it or not? The evidence of Sotorwoxoe Nyanya
(wife of the first appellant) was that the first appellant was present during the killing of the deceased,
and if her evidence was accepted then his presence in the house or in the bathroom would not be
accidental, but in furtherance of the common purpose. There may be occasions when there are no
previous deliberations. When faced with such a situation, it is sufficient for the alleged conspirators to
have been found to be acting together for a common unlawful purpose. In R. v. Brisac Grose J. said,
"conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 147
pursuance of an apparent criminal purpose in common between them." In R. v. Parnell (also an Irish
case), Fitzgerald J. in his charge to the jury said, "It may be that the alleged conspirators have never seen
each other, and have never corresponded, one may have never heard the name of the other, and yet by
the law they may be parties to the same common criminal agreement. Thus in some of the Fenian cases
tried in this country, it frequently happened that one of the conspirators was in America the other in this
country, that they had never seen each other, but that there were acts on both sides which led the jury
to the inference, and they drew it, that they were engaged in accomplishing the same common object,
and, when they had arrived at this conclusion, the acts of one became evidence against the other." The
direction of Coleridge J. to the jury in Murphy's casel was also in this regards; “You have been properly
told that this being a charge of conspiracy, if you are of opinion that the acts, though done, were done
without common concert and design between these two parties, the present charge cannot be
supported. . .” It is very important also to note at this point Glanville William's comment on the direction
of Coleridge J. in his book CRIMINAL LAW (THE GENERAL PART) (1953 ed.) at page 516: "Properly read,
this direction is a valuable statement of a principle of the law of evidence; but it is capable of dangerous
misinterpretation. It must not be understood to mean that the mere fact that two persons
independently pursue the same end is enough to convict them of conspiracy. If two burglars should
decide independently to burgle the same house on the same night, their independent decisions would
not constitute a conspiracy. A conspiracy is not merely a concurrence of wills but a concurrence
resulting from agreement. Of course, if the two burglars actually executed their respective plans and
were both caught in the house, they would be under a heavy suspicion of having acted in concert, and
would be fortunate to convince a jury that they had not. The jury must act on Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 148 reasonable probabilities, and the
presumption of agreement from the circumstances is sufficient to throw upon the accused the evidential
burden of showing that they did not act in concert. Nevertheless, if the jury are satisfied that the
concurrence of the defendants' acts was accidental, the conspiracy charge must fail, for the concurrence
of acts is only evidence of conspiracy, not equivalent to conspiracy. It is submitted that Coleridge J. did
not mean anything other than this; his direction meant only that agreement could be implied from acts
in the absence of evidence that the concurrence was accidental." Forms of agreements Korsah, CJ, in
STATE V OTCHERE, with approval from R. v. Meyrick, per Lord Hewart CJ, said ‘the learned Lord Chief
Justice after stating that it was undisputed that the law of conspiracy was as stated in the three
aforesaid passages went on in another part of his judgment to say; "… it was necessary that the
prosecution should establish, not indeed that the individuals were in direct communication with each
other, or directly consulting together, but that they entered into an agreement with a common design.
Such agreements may be made in various ways. There may be one person, to adopt the metaphor of
counsel, round whom the rest revolve. The metaphor is the metaphor of the centre of a circle and the
circumference. There may be a conspiracy of another kind, where the metaphor would be rather that of
a chain; A communicates with B, B with C, C with D, and so on to the end of the list of conspirators.
What has to be ascertained is always the same matter: is it true to say, in the words already quoted, that
the acts of the accused were done in pursuance of a criminal purpose held in common between them?"’
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 149  Chain
conspiracy One conspiracy linked by a common purpose. ‘This may occur when various persons join a
criminal enterprise or are recruited at various points in time or from various places, either by the
initiator of the conspiracy, or by the members of an existing conspiracy to participate in the activities of
the group’- MB Vol. 2 Pg 393. See STATE V OTCHERE AND OTHERS, where on the 27th July, 1962, the
President left Accra for Kumasi to attend the annual congress of the Convention People's Party of which
he is the general secretary and proceeded on the 31st July, 1962, to Tenkudugu in the Republic of Upper
Volta for a meeting with the President of the Upper Volta. In his entourage were, among other Ministers
and high officials of the Convention People's Party, Tawia Adamafio the third accused person, Ako Adjei
the fourth accused person and Cofie Crabbe the fifth accused person. The President left Tenkudugu on
the afternoon of the 1st August, 1962, on his return journey back to Ghana. His route went through
Kulungugu a village in the Upper Region at which he was not scheduled to stop. When, however, he
arrived at Kulungugu the President's car was hailed to stop by the local district commissioner and some
other persons said to be standing in the middle of the road; and a request was made to the President to
come down and inspect a guard of honour made up of school children who had gathered to welcome
him on his return from the Upper Volta. No sooner had the President stepped out of his car and taken a
few steps in the direction of the school children than a loud explosion was heard. It was later found that
the explosion was that of a hand-grenade which had been dropped a few yards from the President.
Several persons including a schoolchild were killed and many were wounded some of them very
seriously. The President himself was wounded. The High Court (Special Criminal Division), Accra, in
convicting the first accused, held (per Korsah CJ) as follows; Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 150 Consequently we find that Robert
Benjamin Otchere the first accused person then residing at Abidjan in the Republic of the Ivory Coast as
a refugee was one of the persons who held several meetings at Lomé in the Republic of Togo in the year
1962. We find further that at these meetings plans were laid for the overthrow of the Government of
Ghana by a resort to violence, namely, by the use of hand-grenades and other arms to terrorise the
Government of Ghana and in particular to assassinate the President of Ghana. The accused person as
one of the conspirators might not have been successful in executing his assignment of procuring arms at
Abidjan, he might not have succeeded in recruiting men from Ouagadougou. It did not appear on the
evidence that he made any contact with Obetsebi Lamptey when the latter was at Bawaleshie or at
Akweteman in 1962; nor that he had any contacts with the "N.T. boys" who actually threw the
handgrenade at Kulungugu, nor that he had any hand in the final arrangements at Accra for the
execution of the plans agreed to at Lomé. But his failure to procure arms at Abidjan, his inability to
recruit men at Ouagadougou, the fact that he had no contacts with Obetsebi Lamptey in Accra, the fact
that he had no contacts with the "N.T. boys" and the fact that he took no part in the final arrangements
for executing the plans of the conspirators do not in law exonerate him from full responsibility for what
occurred at Kulungugu on the 1st August, 1962, for what occurred at Kulungugu was in furtherance of
the objects of the conspiracy as formulated at Lomé, and his responsibility as a conspirator was
complete the moment he agreed with the others at Lomé to do what was eventually done. The acts of
Obetsebi Lamptey and his agents done in Accra to further the objects of the conspiracy, even though
done in the absence of the first accused person and without his knowledge, are in law the acts of the
first accused person (Phipson on Evidence (9th ed.), page Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 151 98; Taylor on Evidence (12th ed.),
Volume 1, page 376, paragraph 590).  Wheel conspiracy Different personalities with one personality as
co conspirator. For example, a Custom Officer who conspires with say A, B, C, D and E to evade help
each of them to evade tax. On a charge of conspiracy, each of A, B, C, D, and E will be charged with one
count each of conspiracy to evade tax. However, the Custom Officer will be charged with five different
counts of conspiracy. 3. Acting together with a common unlawful purpose “The purpose of criminal
conspiracy under the common law is to “do an unlawful act” or to do a lawful act by an unlawful means.
It is important to note that section 23(1) departs from the English common law position in the sense that
the purpose of that agreement or abetment must be the commission of a crime as we know it both
under the criminal law and the constitution of the country”- Prof. Ofori Amankwah’ Book; Pg 52
Conspiracy and jurisdiction Section 23(2) and (3) of act 29 provides, for the purposes of conspiracy and
jurisdiction, thus; (2) A person within the jurisdiction of the Courts, can be convicted of conspiracy by
agreeing with another person who is beyond the jurisdiction, for the commission of abetment of a
criminal offence to be committed by them or either of them, or by any other person, either within or
beyond the jurisdiction; (3) for the purposes of subsection (2) as to a criminal offence to be committed
beyond the jurisdiction, 'criminal offence' means any act which, if done within the jurisdiction, would be
a criminal offence under this Act or under any other enactment. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 152 The effect of this section is that, if A, in
Ghana, conspires with B, in America to commit, let us say fraud or if they conspire to engage others, let
us say D and F, to commit on their behalf the fraud. Once fraud is a criminal offence in our jurisdiction,
for the purposes of punishing conspiracy to commit fraud, then A within the jurisdiction of Ghana will be
charged with the offence. “Further, a conspiracy entered into abroad, is triable by the courts in the
jurisdiction although no overt acts pursuant to the conspiracy are done within the Ghana jurisdiction”-
MB Vol 2 Pg 428. Punishment for conspiracy This is provided under section 24(1) and (2) of the Criminal
Offences Act which provides; (1) Where two or more persons are convicted of conspiracy for the
commission or abetment of any criminal offence, each of them shall, where the criminal offence is
committed, be punished for that criminal offence, or shall, where the criminal offence is not committed,
be punished as if each had abetted that criminal offence. (2) A Court having jurisdiction to try a person
for a criminal offence, shall have jurisdiction to try a person or persons charged with conspiracy to
commit or abet that criminal offence. In effect, section 24(1) envisages different punishment to be
metered out to one who is convicted of conspiracy when the crime succeeded and in situation when the
crime did not succeed. For that of a successful criminal offence, shall be punished just like the principal
who committed the offence, that is, will be punished as if he or she had actually committed the offence.
In cases where the criminal enterprise was not completed, then each conspirator will be punished as an
abettor. It must be noted that abetment carries the same punishment as the commission of the
substantive offence, so, in effect punishment for conspiracy, whether crime was committed or not is the
same as for the substantive offence. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 153 For jurisdiction, as provided for under sub-section 2, the court or tribunal
clothed with jurisdiction by law to try the substantive offence also has jurisdiction to “try a person or
persons charged with conspiracy to commit or abet that criminal offence”. See REPUBLIC V MILITARY
TRIBUNAL; EX PARTE OFOSU-AMAAH where the appellant had been convicted for conspiracy to commit
subversion. They contended that the offence of conspiracy was not present in the statute that gave the
military tribunal power to try the substantive offence of subversion. In an appeal against the conviction
of the tribunal, the High Court, per Abban J held thus; The legislature, in these two sections of the
Criminal Code, 1960, has laid down general principles to be followed. In these sections the legislature
has directed its attention, specifically, to the offence of conspiracy and has made special provisions for it
unambiguously. These provisions are of general application and they apply to every offence created by
any enactment. Consequently, by virtue of these provisions the prosecution can add a conspiracy charge
to any offence, and jurisdiction is given to any court to try a conspiracy charge, so long as that court has
jurisdiction to try the substantive offence on which the said conspiracy charge is based. The military
tribunal established under N.R.C.D. 90 is a court of some sort, and since the said Decree did not interfere
with these general provisions of the Criminal Code, 1960, and since the military tribunal had jurisdiction
to try the applicants for the substantive offence of subversion under section 1 (a) of the Decree, it also
had jurisdiction, by virtue of sections 23 (1) and 24 (2) of the Criminal Code, 1960, to try them on a
charge of conspiracy to commit the said offence. Once the conduct called in question is regarded as an
offence by some enactment, be it an Act or a Decree, the accused concerned can be charged with
conspiracy to commit that offence even though the enactment creating the said offence did not
expressly mention conspiracy as an offence. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 154 Scope of liability All conspirators in a
conspiracy are bound by the act done by one in furtherance of that conspiracy. For this reason section
24(1) of Act 29 (supra) applies. It must be noted however that when one does an act which goes beyond
that which was conspired, then that act is not binding on the rest. See TEYE alias BARDJO V THE
REPUBLIC, where the first, second and third appellants together with two other persons, agreed on a
joint enterprise to break into and enter the deceased's house to steal. In the course of the execution of
the joint enterprise, the third appellant went beyond what had been agreed upon, by killing the
deceased because the deceased had recognised him and mentioned his name. At their subsequent trial
by a jury for the offences of conspiracy to commit murder and murder, the trial judge failed to direct the
jury to determine whether the killing was in pursuance of or went beyond the agreed joint enterprise.
He also remarked that the refusal of the third appellant to give a statement when charged, meant that
he had a guilty mind. The appellants were convicted of the murder charge. They appealed. The Court of
Appeal, in allowing the appeal, held; The position is that where two or more person embark upon a joint
criminal exercise, each of the participants will be answerable for the acts done in pursuance of the joint
exercise including such acts as are incidental to and necessary for the achievement of the joint
enterprise and which acts were in the contemplation or ought to be in the contemplation of the parties
at the time the exercise was embarked upon. . . But subsection (3) of section 13 contemplates a position
where one of the criminal participants goes beyond what has been agreed upon or was in the
contemplation of the parties as part of the exercise or takes a course quite different from what the
parties have agreed upon; he alone will be liable; his coadventurer will not be liable for the
consequences of his unauthorised act. Defences and conspiracy There appears to be no defences to the
crime of conspiracy. Countermand and withdrawal are inapplicable when one’s act is identified as a
conspiracy to commit crime. In BOAHENE V THE STATE, the two appellants were tried by Sowah J. in the
High Court with the aid of Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 155 assessors, on an indictment which charged the two jointly on two counts of
conspiracy to commit a crime of forgery of Ghana currency notes contrary to section 23 of the Criminal
Code, 1960, and section 16 of the Currency Act, 1960, now repealed, and charged the first appellant
alone with the substantive offence of forgery of a Ghana currency note. The assessors were unanimous
in their opinion that the appellants were not guilty on each of the offences of which each stood charged;
but the learned judge with whom rests the final decision in such a trial, as provided by section 287 (2) of
the Criminal Procedure Code, 1960,3 found each of the appellants guilty, convicted him accordingly and
sentenced the first appellant to a term of five years' imprisonment with hard labour on each of the three
counts, the sentences to run concurrently, and the second appellant to two years' imprisonment with
hard labour on each of the two counts on which he was charged, the sentences also to run concurrently.
Each of the appellants appealed against his conviction and the sentences passed upon him. On the issue
of defences opened to the appellants, the Court of Appeal held; Two small matters may be dealt with at
this stage, namely, the mission on behalf of the second appellant that the trial judge failed to deal with
his defences adequately... that (i) he had only one defence, i.e. countermand, ignoring his defence of
denial,. . . The defence of countermand may only avail with respect to an offence to be committed in
future, e.g. where a person having given instructions to, say, his servant, to go and beat up someone,
and before the servant could put the directions into effect, recalls his directions. The offence with which
the second appellant is charged is conspiracy. That offence is committed the moment two or more
people agree together or act together to commit a crime; one of the conspirators may recant and
withdraw from the perpetration of the substantive offence, but he cannot undo the act of his previous
agreement. Again, the plea of countermand implies admission of original complicity in an act, and a
subsequent change of heart. That being the case, it is not a misdirection on the Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 156 part of the trial judge to
direct himself that the defence of the second appellant is an admission of his complicity in a conspiracy.
NB; “It has long been decided by the courts in many cases that where the evidence available is sufficient
to support the substantive crime, it is undesirable and unfair to the accused persons for the prosecution
to prefer a charge of conspiracy in addition to the charge in respect of the substantive offence. In fact,
our judges have adopted the attitude of English judges in discouraging the prosecution to take that
course of action”.-Twumasi Pg 107 NB; READ also the full case of LOGAN & LAVERICK V THE REPUBLIC
[2007-2008] SC GLR 76 which is a modern classical case on conspiracy under the Ghanaian Law. The full
judgment of the SUPREME COURT on the CASE is provided at the back pages. Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 157 ACCESSORIAL LIABILITY –
ABETMENT “A person may be solely responsible for the commission of a crime but, at times, more than
one person may be guilty of complicity in the crime. Where the latter situation arises under English law,
there are degrees of criminal responsibility depending on the extent of involvement of each party to the
crime. Under our law, a person who abets another person to commit a crime suffers the same
punishment as the one whom he abets. . .”- Twumasi, @ Pg 98 Abetment is all about rendering
assistance to another for the purpose of committing a criminal offence The Criminal Offences Act
provides for abetment under section 20(1). The said section provides; 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 or presence or otherwise, and a person who does an
act for the purpose of aiding, facilitating, encouraging or promoting the commission of a criminal
offence by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that
criminal offence, and of abetting the other person in respect of that criminal offence This provision on
abetment (above) creates a situation where not only the principal is made liable for a criminal offence
successfully committed, but also, a situation where all the actors who in one way or the other
contributed to the successful commission of a criminal offence are punished. The English law recognizes
four parties to a crime and these are;  Principal in the first degree This is used to describe the person
who “actually commits the offence either by his own act or omission or through the agency of an
innocent person” Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 158  Principal in the second degree This is used to describe the person who “aids and abets
the actual offender. He does everything possible, including being present, to ensure that the actual
offender accomplishes the criminal purpose”.  Accessory before the fact The one who “instigates,
procures or incites the actual offender to commit the crime while he is absent”  Accessory after the
fact. To describe a person who “harbours a criminal under our law” – source; Twumasi’s book Pg 98 .NB.
Section 20 of Act 29 fuses together accessory before the fact and principals in the second degree into
one, known as abettors. It also eliminates accessory after the facts as part of abetment and has been
made a criminal offence under section 25 of Act 29. For this reason, there is no liability in abetment
where an act of assistance is done after the crime has been completed. See COP V SARPEI AND
NYAMEKYE where a police constable was charged with aiding and abetting of some others because it
was alleged that he allowed the vehicle carrying stolen goods unchecked passage. It must also be noted
that in accessorial liability, no act is harmless if only it is done to further the realization and successful
commission of a criminal enterprise Breakdown of Section 20(1) of Act 29 ‘A cursory look at the
provision would also indicate that the meanings of some of those words used in the catalogue of words
overlap. There is therefore the temptation to treat them as meaning one and the same thing. Such
temptation must be resisted. The reasoning here is that if Parliament in its wisdom thought that all
those words must be included in the list of activities, then there is a presumption that they are intended
to mean different things. The wisdom of this Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 159 reasoning has also been supported by
Lord Widgery CJ, a judge of the English Court of Appeal. As he observed: "We [must] approach the
section on the basis also that if four words are employed here, ‘aid, abet, counsel or procure', the
probability is that there is a difference between each of those four words and the other three, because,
if there were no such difference, then Parliament would be wasting time in using four words where two
or three would do." Having thus approved the wisdom of this attitude, the discussion must proceed
upon the assumption that the Ghanaian Parliament also intended to punish the various kinds of activity
that could conceivably come within the meaning of the provision.’- Mensa-Bonsu, H.J.A.N. in her article
‘COMPLICITY UNDER THE CRIMINAL CODE OF GHANA’ [1991-92] VOL. XVIII RGL 193—219 (subsequently
called Prof. Mensah Bonsu’s Article) Section 20(1) has a long list of activities when done will be
considered as abetment. These acts will be gone into briefly to really see the nature of each one of them
having recourse to Prof Mensah Bonsu’s book.  Instigation This is the same as incitement. This activity
deals mainly with sowing criminal ideas into the minds of people or the urging or psychological pushing
of another to commit a crime. One who does this act, obviously, at common law is considered as an
accessory before the fact. It makes much sense making this act an offence because human reaction to
idea they receive differs, some being immediate and some being longer, but may react eventually. “thus
the possibility of crime is increased by one who gives currency to ideas that make the commission of
crimes attractive to some who may be more susceptible to such ideas. Attaching criminal liability
therefore ensures that acts to that introduce ideas leading to the commission of crimes, would be
discouraged” – MB Vol 2 Pg 493 Liability of the offence is complete as soon as the act of instigation is
done and the effect the act has on the intended target is of no importance at all. Therefore whether
attention was paid to the instigation or not, it does not matter. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 160 See the case of S V NKOSIYANA, where
the appellant raised a question of assassination of a political figure to another and offered to raise
money for that purpose and in fact paid part of the deposit to ensure that the assassination will be
carried on. Unknown to him, the person he discussed this with was an undercover agent. He was
convicted of incitement and he appealed. In dismissing the appeal, Holmes JA said; In criminal law, an
inciter is one who reaches and seeks to influence the mind of another to the commission of a crime. . .
the approach to the other’s mind may take various forms, such as suggestion, proposal, request,
exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity. The list is
not exhaustive . . . the decisive question in each case is whether the accused reached or sought to
influence the mind of the other person towards the commission of crime. Where the intended influence
does not reach the mind of the prospective incitee, the crime may be one of attempted incitement, e.g.
as when an inflammatory letter is sent but goes astray. Furthermore . . . it is conduct and intention of
the inciter which is vitally in issue . . . The purpose of making an incitement a punishable offence is to
discourage persons seeking to influence the minds of others towards the commission of crimes. Hence,
depending on the circumstances, there may be incitement irrespective of the responsiveness, real or
feigned or the unproductiveness of the person sought to be influenced. See also the case of R V
ASSISTANT RECORDER OF KINGSTON-UPON-HULL; EX PARTE MORGAN, this was a case for an order of
mandamus for the assistant recorder of Kingston-upon-Hull to hear the case where the defendant had
incited a boy aged seven years to commit an act of gross indecency with him contrary with the
Indecency with Children Act. Lord Parker CJ, in granting the order of mandamus said; It is of the essence
of the offence constituted by “councelling, procuring or commanding” that, as a result of the
counselling, procuring or commanding, Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 161 something should have happened which constituted either the full offence
or the attempt, whereas in the crime of incitement . . . it matters not that no steps have been taken
towards the commission of the attempt or of the substantive offence. It matters not, in other words
whether the incitement [instigation] had any effect at all. It is merely the incitement or the attempt to
incite which constitutes the offence.  Command One is liable for the criminal offence of abetment when
he issues “commands” for the commission of a crime. Normally, commands flow from a superior to a
subordinate who is under a duty to obey. ‘In order for a person to be guilty of "commanding", it would
seem that nothing less than a legal duty to obey would be enough to establish that relationship. This
would therefore exclude the "Your-wish-is-my-command" kind of situation which is a situation of
voluntary submission to the authority of another, rather than a legal obligation to submit. Since the
subject matter is the commission of an offence, it would seem that there is no room for a "moral
obligation to obey." A "command" must therefore proceed from one with lawful authority otherwise the
act becomes one of "instigation."- Prof. Mensah Bonsu’s Article  Counseling In everyday language,
counsel connotes advice hence anyone who gives advice to another to commit a criminal offence is
liable as an abettor. It must be noted however that unlike instigation, there is liability for counseling
when the crime is committed according to the advice given hence, there can be no liability when the
offence is actually not committed. See R V CALHAEM, where the applicant had been convicted for
councelling and procuring the commission of an offence of murder by one Zajac of the victim who had
for sometime had an affair with the applicant’s solicitor, whom she (i.e. the applicant) admired. In
dismissing her appeal, Parker L.J. who gave the judgement of the court held; Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 162 We must therefore approach the
question raised on the basis that we should give to the word “councel” its ordinary meaning . . . There is
no implication in the word itself that there should be any causal connection between the counselling
and the offence. It is true that . . . the actual offence must have been committed, and committed by the
person counseled. To this extent there must clearly be, first, contact between the parties and, secondly,
a connection between the councelling and the murder. Equally, the act done must, we think, be done
within the scope of the authority or advice, and not, for example, accidentally when the mind of the
final murderer did not go with his actions.  Procuring This act involves making available the requisite
instrument to aid in committing the criminal offence or “seeking out expert personnel to carry out the
assignment”. It is not necessary that the act constituting procuring is an unlawful act, but “it must have
been done with the intention of ensuring that a crime could be committed. It must however be noted
that “where one is asserting a legal right however, then there would be no offence of procuring, even if
it was foreseeable that in exercising that right, others would be induced to commit an offence.” – MB
Vol 2 Pg 501. In REPUBLIC V TEMA DISTRICT MAGISTRATE GRADE I; EX PARTE AKOTIAH a contested
chieftaincy enstoolment, when supporters of the rival candidate (the applicants) expressed their
intention to assemble and install him, an information was laid before the magistrate under the Criminal
Procedure Code, 1960 (Act 30), s. 22 praying the court to call upon the applicants to show cause why
they should not be ordered to execute a bond to keep the peace. The magistrate granted the application
and held that the installation of a rival chief when one had already been installed was likely to occasion
a breach of the peace between their respective supporters. He therefore ordered the applicants to
appear before him "to show cause why they should not be made to execute bonds to refrain from
installing a new chief which may lead to a breach of the Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 163 peace." The applicants applied for orders
of certiorari and prohibition on five grounds all of which were rejected by the High Court. On the issue
whether the magistrate's finding was supported by the evidence since the affidavit of the informant did
not disclose that the applicants themselves in installing their candidate would be violent or disturb the
peace. In granting the application, Agyepong J held that one could not be guilty of procuring the
commission of an offence by embarking upon a course of conduct which was lawful, even though it
would induce a breach of the peace. The court applied the English case of Beatty v Gillbanks, a case
which involved the Salvation Army and its opponents, the Skeleton Army, in almost similar
circumstances as in the instant case. From these authorities, the inevitable conclusion is that the act
which "procures" the event should be one that is not pursued in exercise of one's legal rights.  Aiding
“Aiding” traditionally has been used alongside with “abetting” as one act. However, under the Criminal
Offences Act, the act of abetting has been made to include, among others, aiding. Aiding is a criminal
offence which is charged on one who was present and lent assistance to the principal of the first degree
during the commission of the crime. At common law, one who aids is a principal in the second degree.
This is because the person is physically present during the commission and lent hands to the offence.
This assertion however may prove problematic since there are some crimes that are in such a way that it
is hardly to see an aider physically present. In such circumstances, acts “that furnish the required input
for an offence to be committed by another, constitute “aiding”. See THAMBIAH V R where it ‘was an
appeal by a person who had been convicted of "aiding" the offence of forgery of cheques. The appellant
had opened a bank account under a false name and description. The account was later used to dispose
of forged cheques. In dismissing the appeal, the court held that the conviction had been proper because
it was the act of the appellant that set the stage for the commission of the crime. One can see clearly
here that the assistance rendered to the forgers made it possible for Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 164 the offence to be committed. The
dismissal of the appeal meant that one could "aid" without being physically present. However, since the
provision of the bank account was the necessary tool for the completion of the offence, there is a sense
in which the accused could be deemed to have been present. From this, one can conclude that although
a principal in the second degree is supposed to be present during the commission of the offence,
"presence" can be either physical or constructive, depending upon the nature of the offence.’ ."- Prof.
Mensah Bonsu’s Article One who also supplies an essential instrument for the commission of a crime
can also be labeled as one who aids the offence, hence labeled as an abettor. See NATIONAL COAL
BOARD V GAMBLE where ‘a truck driver had been arrested for driving an overloaded vehicle. The load
complained of was coal, which had been bought from the premises of the appellants. The official in
charge of the weighbridge had noticed the overload and drawn the driver's attention to it. The driver
had then said that he would take the risk, and the official who could have prevented him from leaving
the premises, handed him the ticket which enabled him to do so. On the facts, it was clear that the
servant of the appellants enabled the driver to commit the offence. The appellants were therefore
charged with aiding and abetting the offence. The majority of the court was of the opinion that the
appeal should fail because "[a] person who supplies the instrument for a crime or anything essential to
its commission aids in the commission of it ... " It is thus clear that a person who opens a bank account
to enable dishonest activities to be carried on, would definitely have supplied the instrument essential
to the commission of a range of offences. Since the opening of the account had been done "purposely",
the Code would also support this view that such a person had aided the commission of the offence.’-
Prof. Mensah Bonsu’s Article  Encouragement “This connotes moral and psychological support which
lends strength and resolve to the efforts of one who is committing a crime.” – MB Vol 2 Pg 523. This can
take the form of merely being present and applauding the principal without actually lending a hand. It is
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important to note that mere presence at the scene does not render one an abettor unless the presence
was non-accidental; it leant moral support or was intended to lend moral support to the principal. In
Prof. Mensah Bonsu’s Article on this matter, she wrote; The issue of when a person's presence during
the commission of a crime constitutes "encouragement" appears tricky, judging by the fact that
"encouragement" need not be in words. Difficulties often arise where the court is required to assess
conduct which is capable of being construed one way or the other. What is the position of one who
accompanies a friend to negotiate for a criminal abortion although she utters no word of
encouragement nor takes any part in the negotiation? Although in Obeng v The Republic the Court of
Appeal by a majority decision of Sowah and Lassey JJA (as they then were) held that a woman who
accompanied a friend twice to negotiate for an abortion was not an accomplice to the crime of illegal
abortion, the law seems to suggest otherwise. It is true there was no evidence of any activity beyond
offering her companionship to her friend as the deal was being negotiated. All the same, it is curious
that the majority refused to accept the fact of her complicity when the evidence showed that she at all
material times knew what her friend desired to do and raised no objection thereto. The dissenting
judgment of Azu Crabbe JA (as he then was) puts more emphasis on the fact of her voluntary presence
to hold that she was an accomplice. Clearly, the majority was wrong on this point because the fact of her
silence, coupled with her non-accidental presence on two occasions, rendered her act an
"encouragement." This case may be contrasted with the earlier one of State v Boateng in which a
prosecution witness was held to be an accomplice because he had been tainted in the transaction which
led to the prosecution. The facts were that a policeman nicknamed "Tiger" was on patrol duty one
morning when he heard: "Tiger is coming!" as he approached one house. He saw the second
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 166 accused
person dash into a particular room. His suspicions aroused, he also went into that room. There, he found
the first and second accused persons, as well as two other persons who were subsequently made the
second and fourth prosecution witnesses respectively. All of them were looking very frightened. This
further deepened his suspicion and he therefore proceeded to search the room. This search produced
some police uniforms and other accoutrements as well as a photographic plate for a currency note.
Consequent upon these discoveries, all the occupants of the room were placed under arrest. Further
police investigations resulted in two of the persons being released and turned into prosecution
witnesses. During the trial, the judge failed to warn the assessors that those witnesses were accomplices
whose evidence required corroboration. The accused persons were subsequently convicted and they
brought the instant appeal. The appeal was allowed because the circumstances were such that the
witnesses were particepts criminis. Crabbe JSC was not in doubt that the parties were accomplices even
though they were merely present in that room. Their guilty looks suggested that they knew what was
afoot and it was therefore unsafe to convict on their evidence. This it is submitted, is a correct
interpretation of the law because an accomplice need not do anything in particular. It is enough if the
person's presence is not a coincidence, and he or she shares the mens rea of the principal offender. The
existence of this authority should therefore have inferenced the decision in the Obeng case. In R V
CONEY, a fight broke up between two people near the road after the close of an Ascot races. A ring was
formed with posts and ropes and a large number of people were present looking on, some of whom
were undoubtedly cheering the fight. The men fought for some time and three prisoners were seen in
the crowd but was not seen to do anything and there was no evidence as to how they got there or how
long they stayed there. In allowing the appeal, Cave J said; Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 167 Indeed on no other supposition can I
understand the verdict, for the evidence against the three prisoners . . . is quit consistent with their
being labourers working or persons going quietly home from the races who, observing a crowd, went up
to see what the matter was, and finding it was a fight stayed some short time looking on . . . Now it is a
general rule in the case of principals in the second degree that there must be participation in the act,
and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does
not act in concert with those who commit it, he will not be a principal in the second degree merely
because he does not endeavour to prevent the felony or apprehend the felon. . . Also, in R V CLARKSON,
an eighteen year old girl, having recently undergone an operation with the womb and discharged, went
to a party at the barracks. At about midnight, she left the party to go and see a soldier friend. He was
not in his room but other soldiers were. She eventually landed in another room where she was raped by
three men. She was physically injured and her clothes were torn to shreds. When the rape begun and
she was screaming and moaning, a number of men, including the appellants piled in to the room. Some
of the men actively assisted the rapists to hold down the unfortunate girl. However, so far as the
appellants were concerned, there was no evidence of their having done any positive act to assist. In
allowing the appeal by the appellants who were convicted by the Court Marshal, Megaw LJ said; The
jury has to be told by the judge, or as in this case, the court marshal has to be told by the judge-
advocate, in clear terms what it is that has to be proved before they can convict of aiding and abetting;
what it is of which the jury or the court marshal, as the case may be, must be sure as matters of
inference before they can convict of aiding and abetting in such a case where the evidence adduced by
the prosecution is limited to non-accidental presence. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 168 It is not enough, that the presence of the
accused has, in fact, given encouragement. It must be proved that the accused intended to give
encouragement; that he willfully encouraged. In a case such as the present, more than in any other
cases where aiding and abetting is alleged, it was essential that this element should be stressed. . . 
Facilitate This refers to anyone who makes easy, the commission of an offence by the principal. Acts of
facilitation normally are harmless acts, such as leaving a door unlock in other to facilitate stealing, etc,
and are consistent with mere carelessness. For one to be labeled a facilitator it is important there is
evidence of partnership in crime and this can be done by establishing foreknowledge. “For the purposes
of the offence, it is the intention to facilitate the commission of the crime which is important, and not
whether the act would in fact have rendered the intended assistance.” – MB Vol 2 Pg 532-533 
Promote “A person promotes the commission of a crime, by providing the resources, etc aimed at
enabling the principal to commit the offence successfully. A promoter is usually involved right at the
inception of the crime, and thus stands in special relationship to the offence”.- MB Vol 2 Pg 533. A
financier of a criminal enterprise may b e labeled as a promoter. To be lioable, a person must share in
the mens rea of the crime and must have done acts purposely to ensure that the criminal design is
successful. Consequences of abetment Section 20(2) provides; A person who abets a criminal offence
shall, if the criminal offence is actually committed in pursuance of, or during the continuance of the
abetment, be deemed to have committed that criminal offence. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 169 This presupposes that the liability of an
abettor is the same as the principal offender if the offence is committed as a result of the act of the
abetment. In R V DUNNINGTON, the appellant sat and waited in a get-away car while his friends
attempted to rob a store. The attempt failed and he was convicted of abetment of attempted robbery.
He was held to have been properly convicted. Also, in R V CREAMER, the accused was an accessory to an
act that resulted in death. The principal was found guilty of manslaughter. The accused appealed against
the conviction of manslaughter contending that a person could not be guilty of an abetment of an
unintentional act such as manslaughter. It was held that such liability was possible. Punishment and Trial
Section 20(3) (a) and (b) provides for the punishment for an abettor. The said section provides; A person
who, abets a criminal offence is, if the criminal offence is not actually committed (a) liable to
imprisonment for life where the criminal offence abetted was punishable by death; and (b) in any other
case the abettor is punishable in the same manner as if the criminal offence had been actually
committed in pursuance of the abetment. “despite the fact that both parties have criminal liability for
the offence, there are occasions when the principal offender and the abettor cannot be tried at the
same time for the offence either because one has escaped from the jurisdiction, or is for some reason
unavailable to stand trial. It is therefore permissible for the parties to be tries either together or
separately.-MB Vol 2, Pg 534 For this reason, section 20(4) provides; An abettor may be tried before,
with, or after a person abetted, and although the person abetted is dead or is otherwise not amenable
to justice. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 170
(5) An abettor may be tried 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. It must be noted that, the individual liability of accomplices is
separate and distinct from each other. Under section 20(6), the law allows each person to this charge to
rely on any “exemption, justification, or extenuation” open to him/her which will limit the extent of the
criminal liability by that person “although the person abetted or any other abettor is not entitled to the
like benefit”. It must be noted that an acquittal of the principal will not necessarily exonerate the
abettor from liability. For this reason, Taylor J, as he then was, said in IDDI v THE REPUBLIC (facts of the
case stated below) that; The manner in which the argument was put before me, however, by counsel for
the appellants, would seem to suggest that once a principal offender is acquitted an aider and abettor
must mandatorily be acquitted. I think this manner of stating the principle is erroneous. This is because
the provision of section 20 (4) of Act 29 would seem to show that an abettor could be convicted
although the principal offender is not amenable to justice. . . It seems to me that if the crime was indeed
committed but for technical reasons the principal offender is acquitted the acquittal may not necessarily
operate in favour of an abettor. This is supported by the English case of R. v. Humphreys and Turner
[1965] 3 All E.R. 689. In that case, Chapman J. held that where there is admissible evidence against an
abettor but not against the abetted person, that the said abetted person committed a crime and was
abetted by the said abettor, the abettor can be convicted although the abetted person is acquitted.
There is some support for Chapman J.’s view in the House of Lords decision on conspiracy in Director of
Public Prosecutions v. Shannon [1975] A.C. 717 and in some pronouncements of the English Court of
Appeal in R. v. Davis (1977) Crim.L.R. 542, C.A. and R. v. Quick [1973] Q.B. 910, C.A. I think it is only in
cases where the acquittal of the principal offender shows that no crime at all has been committed that
the abettor must necessarily be acquitted. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 171 For this reason, section 20(6) provides;
An abettor shall have the benefit of any matter of exemption, justification, or extenuation to which the
abettor is entitled under this Act, although the person abetted or any other abettor is not entitled to the
like benefit. NB; although, an abettor is separately and distinctly liable, the abettor’s liability depends on
the criminal nature of the principal’s act. Therefore, when there is a case where the act of the principal
amounted to no crime at all, one convicted of abetment will also be entitled to an acquittal. See IDDI v
THE REPUBLIC FACTS; The acquitted person, Paul Kwabena Frans, occupied a government bungalow at
Wa and the case of the prosecution is that he removed two ceiling fans belonging to the government
which were installed in the bungalow and gave them to the two appellants to sell for him as he was
short of money. The two appellants agreed that the fans were given to them, but they denied knowing
that they were stolen, and gave evidence that they did sell the fans and gave the proceeds to the
acquitted person. This, of course, the acquitted person denied. He said the case against him is malicious
and that the ceiling fans are indeed still in the room ever since they were installed. The court moved to
the locus in quo and discovered that the fans were indeed in the ceiling a circumstance that thus
corroborated the evidence of the acquitted person. The prosecution, however, led evidence showing
that the ceiling fans in the case are government property. For these reasons, the learned circuit court
judge acquitted the said Paul Kwabena Frans of the offence of stealing but amended the second count to
read dishonestly receiving in order to enable him to convict the appellants and the purported
amendment was announced as I have pointed out in the course of reading his judgment when the cases
of the prosecution and the defence had been closed. HELD; In acquitting the appellants, Taylor J said;
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 172 With
some slight qualifications I accept this argument which was also accepted by the state attorney
appearing for the Republic. In the Boateng case (supra) at p. 611, Ollennu J.S.C. reading the judgment of
the erstwhile Supreme Court said at p. 611: “where two persons are convicted together, one of a
substantive offence and the other of abetting the former to commit that substantive offence, and the
one convicted of the substantive offence appealed but the one convicted of abetting did not appeal, the
success of the appeal against the conviction on the substantive offence, being a decision that no offence
has been committed, would also mean that no crime has been abetted; consequently it will be
nonsensical to leave the conviction of the offence of abetting to stand. In such a case too, justice
requires that the court should quash the conviction on abetting even though there is no appeal against
it.” This dictum which in my respectful opinion correctly states the law does demonstrate that an
acquittal of the substantive offence in circumstance showing that the crime was never committed,
necessarily means that an abettor is entitled to acquittal. That point was forcefully brought out by the
same judge reading the judgment of the erstwhile Supreme Court in Okpara v. Commissioner of Police
(supra) at p. 33 . . . in support of the proposition that: “The offence of aiding and abetting implies the
commission, by one person, of a substantive offence, and another person aiding and abetting the
principal offender in the commission of that substantive offence. Therefore a person cannot be
convicted of aiding and abetting where no substantive crime is proved to have been committed: R. v.
Mensah.” This proposition does indeed find support in R. v. Mensah (supra) because holding (1) in the
said R. v. Mensah is: “that for criminal abetment to exist, Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 173 the action abetted must be a crime.”
Clearly, by acquitting the principal offender of the charge of stealing, the learned circuit court judge was
in effect holding that the appellants did not abet the theft involving the acquitted person. As I have
already indicated, I agree with the submission of counsel that an acquittal of the principal offender in
circumstances showing that the crime was not committed enures in favour of an aider and abettor and
entitles him to an acquittal of an aiding and abetting charge. Just as the other inchoate offences, any act
done within Ghana to lend hand or in abetting a criminal offence outside the jurisdiction of Ghana, will
be punishable if such act is a criminal offence under our law. For this reason, section 20(7) reads; A
person who, within the jurisdiction of the Courts, abets the doing beyond the jurisdiction of an act
which, if done within the jurisdiction, would be a criminal offence, is punishable as if that person had
abetted that criminal offence. Liability for joint enterprise It is possible that an abettor may be held liable
for the principal’s act which does not constitute part of the offence abetted, per section 20(2). The
question however is; is a person liable for all acts done by the principal pursuant to an abetment? The
answer seems to be; that one is liable for all crimes that reasonably fall within the scope of the crime
abetted. See section 21(1) of Act 29 which states; Where a person abets a particular criminal offence, or
abets a criminal offence against or in respect of a particular person or thing and the person abetted
actually commits a different criminal offence, or commits the criminal offence against or in respect of a
different person or thing, or in a manner different from that which was intended by the abettor and,
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 174 (a) if it
appears that the criminal offence actually committed was not a probable consequence of the endeavour
to commit, nor was substantially the same as the criminal offence which the abettor intended to abet,
nor was within the scope of the abetment, the abettor is punishable for abetment of the criminal
offence which the abettor intended to abet in the manner provided by this Chapter with respect to the
abetment of criminal offence which are not actually committed; and (b) in any other case, the abettor
shall be deemed to have abetted the criminal offence which was actually committed, and is be liable to
punishment accordingly. NOTE; It is very clear under section 20 (1) (a) that when there is a situation
where ‘. . . it appears that the criminal offence actually committed was not a probable consequence of
the endeavour to commit, nor was substantially the same as the criminal offence which the abettor
intended to abet, nor was within the scope of the abetment. . .’ the abettor will not be left to go free
just for the reasons stated in the section. He will however be liable ‘. . . for abetment of the criminal
offence which the abettor intended to abet in the manner provided by this Chapter with respect to the
abetment of criminal offence which are not actually committed.’ For example, if A abets a crime of
stealing with B and in the process of doing so, B engages in an act of rape when he was on his way to
steal, then, if it is established that ‘. . .the criminal offence actually committed was not a probable
consequence of the endeavour to commit, nor was substantially the same as the criminal offence which
the abettor intended to abet, nor was within the scope of the abetment. . .’, A will not be liable for the
rape but this will not exonerate him completely since he will still be punished for ‘. . . the criminal
offence which the abettor intended to abet in the manner Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 175 provided by this Chapter with respect to
the abetment of criminal offence which are not actually committed. . .’, and in this case, that is, stealing.
Cases  TEYE alias BARDJIO AND OTHERS V THE REPUBLIC [treated under scope of liability of conspiracy.
See page 29]  ARHIN alias PALL MALL v THE REPUBLIC FACTS; The appellant and one D were officers in
the Ghana Prisons Service on duty at the Ussher Fort Prisons, Accra. Among the inmates were some
soldiers who were awaiting trial on a charge of attempting to overthrow the Government of the
Provisional National Defence Council. In June 1983 the soldiers broke out of jail and in the process shot
and wounded the chief prison officer when he attempted to prevent their escape. Subsequently, they
went to the Nsawam Prisons and freed some of the prisoners and in the process shot and killed a prison
officer. They then came back to Accra, stormed and occupied the Ghana Broadcasting Corporation for
some time until they were flushed out by the army. Those who escaped capture fled to Lome in the
Republic of Togo. Following investigations into the jailbreak, the appellant and D were arraigned before
the National Public Tribunal on a charge of abetment of preparation to overthrow the Government of
Ghana contrary [p.191] to section 20(1) of the Criminal Code, 1960 (Act 29) and sections 9(1)(g) and 16
of the Public Tribunals Law, 1984 (PNDCL 78). At the trial, the prosecution led evidence to establish that
the appellant and D had provided the soldiers with the two pistols and ammunition which they had used
in the jail-break. The tribunal held that the attempt by the escapees to overthrow the government was a
foreseeable consequence of the pistols and ammunition that the appellant and D had given to them,
and in the circumstances Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 176 convicted and sentenced the appellant and D to 25 years' imprisonment
each. On appeal by the appellant against his conviction and sentence, his counsel contended that since
there had been no evidence to establish that the appellant and D were aware that the persons they had
aided intended upon gaining their freedom to engage in any activity or preparation to overthrow the
government, their conviction and sentence was wrong. The court found on the evidence that a
prosecution witness who was an inmate at Ussher Fort at the time of the jail-break had in evidence
testified that before the jail-break one of the soldiers had confided in him that they had sought the
assistance of the appellant and D because they were apprehensive that they (the soldiers) were going to
be killed in the prison. HELD; In allowing the appeal in part, the court of Appeal, per Forster JA, held;
While I am prepared to agree that these desperate and dangerous men with two pistols and
ammunition were obviously a danger to the community as they made their way to Togo, I cannot
impute to the two officers the knowledge or the reasonable apprehension of the possibility of these
men, armed with the pistols, first overcoming the security at this country's medium security prisons at
Nsawam and much less making their way back to Accra and to Broadcasting House, overpowering the
military guards, gaining access to broadcasting equipment and proceeding to make certain
announcements, as was alleged in the prosecution's opening statement. . . To be able to determine the
correctness of the foreseeability test adopted by the tribunal here, the question that need be asked is:
whether or not the crime committed was a reasonably proximate consequence of the crime of jail-break
procured or facilitated? Could the crime of an attempt to overthrow the government, allegedly
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committed by the jail-breakers when they secured their liberty beyond the prison gates, be considered
as growing out of the known enterprise? I do not think so. The substantive offence of an attempt to
overthrow the Government of Ghana did not fall within the scope of the unlawful object for which the
pistols were supplied, that is facilitating the jail-break by these desperate men. For it would not be
reasonably foreseen as a necessary or rational consequence of the violent jail-break. It seems to me that
no reasonable and dispassionate tribunal could have come to the conclusion that, by supplying the
pistols to the remand prisoners who had declared as their intention their escape from the prisons, the
abettors must be held responsible for any inconceivable criminal act committed by the prisoners after
they had broken out of jail and however far away the place of the commission and however unrelated to
their declared purpose for procuring the weapons. I think that the only probable and proximate result of
the supply of the weapons or such as the appellant could have reasonably foreseen was that in the
course of breaking jail and seeking their freedom by flight to Togo, they would not hesitate to use the
fire arms, if their progress was in any way obstructed. An attempt by the escaped prisoners to
overthrow the government was decidedly too remote and conjectural a possibility for the abettors to
have reasonably known or foreseen, as a probable result of the prisoners' quest for freedom.  R V
SMITH (WESLEY) FACTS; the appellants and his friends went to the pub to drink. They were involved in
an argument. One of the friends declared that he would tier the place down. Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 178 The appellant assisted him in this
endeavor by collecting bricks and hurling them into the pub. The other friends fought with the bar man
and one stabbed him to death. HELD; the death of the bar man was a probable consequence of their
joint activity and therefore the appellant were guilty of manslaughter.  CHANG WING-SIU v R FACTS;
the appellant attacked a prostitute and her husband in a flat. Two of the appellants carried knives which
they used to stab the husband to death. The third appellant contended that although he knew of the
knives the others carried, there was no prior agreement that the knives would be used. HELD; it was
foreseeable that the knives would be used in pursuance of the crime abetted. Therefore all three
participants were guilty of murder. Provisions in Respect of Riots Riots are generally provided for under
section 21(2) of the Criminal Offences Act. Hence, anyone who abets a riot is deemed to be an abettor of
whatever crimes of violence that committed. The said section provides; Where a person abets a riot or
unlawful assembly with the knowledge that unlawful violence is intended or is likely to be used, that
person commits the criminal offence of abetting violence of the kind or degree which is committed by
any other person in executing the purposes of the riot or assembly, although that person did not
expressly intend to abet violence of that kind or degree. The law is clearly against acts which can easily
degenerate into the disturbance of public peace. Thus whatever act the crowd engages in is deemed to
be within the scope of abetment for which an abettor is liable. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 179 This provision imputes that one is
deemed to know that a riotous crowd can easily degenerate into a mob and with disastrous
consequences. For the purposes of this offence, it is immaterial what the person wished or really
intended to happen or whether the person knew or did not know that some members of the assembly
intended to use violence. See - MB Vol. 2 Pgs 569-570. In R V KOFI ANTWI, the appellant abetted a riot
although he had knowledge that violence will be used. The West African Court of Appeal held that if a
participant in a riot or unlawful assembly commits murder in executing the purposes thereof then any
other person who has abetted the riot or unlawful assembly with knowledge that unlawful violence is
intended or is likely to be used himself is guilty of abetting the murder. Defences to abetment There are
two possible defences; countermand and withdrawal. The effect of these defences is that the abettor no
more shares the mens rea with the principal. For these defences to succeed, “there must be evidence to
prove that the dissociation was timeously done, and that the erstwhile accomplices have been
effectively informed of the fact” - MB Vol 2 Pg 570. See R V CROFT where a man and a woman entered
into a suicide pact. Whilst both of them were in the act of committing suicide, the man changed his mind
and left the scene to go and find help. When he came, he found that the woman had killed herself. In
finding him guilty of abetting suicide, Lawrence J said; The authorities, however, such as they are, show,
in our opinion, that the appellant, to escape being held guilty as an accessory before the fact must
establish that he expressly countermanded or revoked the advising, counseling, procuring or abetting
which he had previously given. We are of the opinion that the circumstances in this case did not
amount, and could not have reasonably be held to amount, to such a clear countermanding or
determination of the agreement as would discharge the appellant from liability to a charge of murder if
that which occurred was as a result of what he had done before. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 180 It is not enough to take a secret decision
not to remain a part of the enterprise”. - MB Vol 2 Pg 570. See R V ROOK, where the appellant, a taxi
driver called Asfer (hereafter called TD), and two others, Armstrong (hereafter called A) and a man
called Barker (hereafter called B) were conversing in taxi which they have hired. TD wanted to kill her
wife. While conversing, TD discussed with them that a friend wants to have a woman beaten up, but
later it became clear that the so called friend wanted that woman murdered. They agreed on £15,000
and £5000 worth of jewelery. Baker however said he wanted nothing to do with the plan hence at a
latter date, the appellant recruited Leivers (hereafter called L) who agreed to do it. It was agreed that
the murder will take place the following day in a park where he, TD will bring the woman in the car. In
the evening there was further discussion and it was made known that knife and a piece of wood will be
used in the killing. As scheduled, the next day, TD dropped A and L at the park but the appellant was
nowhere to be found. Asfer then brought his wife, where he was murdered brutally by A and L. Her body
was found in the lake the next day. The appellant was interviewed an made certain admissions. His
defence at trial; was that he never intended to kill the woman. He hoped to get some money from Asfer
upfront, then, disappear. At first he tagged on to see how serious the others were. He was not sure
whether they would go ahead as planned. Then he tried to delay them and finally, on the Thursday, he
deliberately absented himself. The court, per Lloyd LJ, said; In the present case the appellant never told
the others that he was not going ahead with the crime. His absence on the day could not possibly
amount to unequivocal communication of his withdrawal . . . in a passage already quoted, he said that
he made it quite clear to himself that he did not want to be there on the day, but he did not make it
clear to the others. So the minimum necessary for the crime was not established on the facts.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 181 
Countermand Countermand here has its full as counter [the] command. This normally avails itself in the
master and servant situation. This is where a person abets a crime by giving instructions or commands to
another, mainly, a subordinate, and recalls or counters it. When this is effectively done and the principal
goes his or her own way to still commit the crime, the person who commanded and later recalled it will
not be liable for any consequences flowing from the conduct of the accused.  Withdrawal “a person
who agrees to take part in a criminal enterprise may withdraw from it at any time before the principal
initiates action in respect of the crime. As soon as the crime is begun, an abettor’s liability is complete
and therefore one cannot realistically withdraw from the enterprise at that late stage. To be effective,
information regarding the withdrawal must have been effectively communicated to the other parties to
the crime” - MB Vol 2 Pg 570-571 Some Other Issues to Consider  Who is an accomplice? Complicity
describes the mental state of being united with others in the commission of a crime coupled with acts or
omissions that further the commission of that crime. The persons so united, are known as
"confederates" or "accomplices" because they, inter alia, share the state of mind of the principal
offender and, consequently, the criminal liability. Owing, however, to the fact that they are not the
principal actors during the commission of the crime, their liability is subject to special rules at common
law. These common law rules, with some modifications, have been codified under the Ghana Criminal
Code, 1960 (Act 29). - Prof. Mensah Bonsu’s Article Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 182 Make short notes on the following; 
Does mere presence at the crime scene make one an abettor of the crime?  Can a blind person abet a
crime Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 183
OFFENCES AGAINST THE PERSON SUICIDE Suicide can be defined as “intentional taking of one’s own life”
– Twumasi Pg 25. Hence, if a person, for one reason or the other takes his or her own life by whatever
means, that person will be said to have committed suicide. It must be noted that our criminal offences
act makes no provision for suicide as a criminal offence because of the obvious impossibility of
punishment since the person will be dead. However, in “medieval England, suicide was a punishable
offence, for the estate of the deceased was forfeited to the state and in addition, the surviving family
members were made to pay for the burial expenses. The only relief of the old sanction is the insurance
practice of disallowing the beneficiaries to inherit an estate of a suicide.”- Prof. Ofori Amankwah Pg. 64.
Provisions related to suicide The Criminal Offences Act makes provision for abetment of suicide and
attempted suicide. Section 57(1) and (2) provides thus; (1) A person who abets the commission of a
suicide commits a first degree felony whether or not the suicide is actually committed, (2) A person who
attempts to commit suicide commits a misdemeanour. Subsection 1 of section 57 makes abetment of
suicide a criminal offence which is punished more severely then attempted suicide since an abettor ‘. . .
commits a first degree felony whether or not the suicide is actually committed’ and a person who
commits attempted suicide is punished as a misdemeanour. For the purposes of this section, it is
immaterial if the person so abetted actually committed suicide or not. “Once there is proof of abetment
of the suicide against the accused, he would be convicted of the first degree felony of abetment of
suicide” – Twumasi Pg 251. See McSHANE V R where the appellant had inherited an estate from her
grandmother, in which her mother had a life interest. Subsequently, her mother became ill and often
threatened to take away her life. The appellant finally arranged for her mother to take away her life but
the plan failed. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 184 She was convicted of attempting to counsel and procure her mother’s suicide. In
dismissing her appeal, it was held that the offence did not require that the suicide should have been
committed in pursuance of the abetment. See also R V CROFT where two persons entered into a pact to
commit suicide. Both of them attempted suicide on one day but one changed his mind and left the scene
to seek help. In his absence, his partner succeeded in killing herself. It was held that the other party who
managed to stay alive was guilty of abetment of suicide. It is important to also point out that one cannot
be liable for abetment of suicide by his mere presence when the suicide was being committed. It must
be proved that the person, in addition to being present for the purposes of abetment, did any of the
acts prescribed under section 20(1) of Act 29 in other to label him an abettor. Section 57(2) as stated
early on, provides for attempted suicide, hence, anyone who attempts to take his or her own life
commits a misdemeanour. For the charge of attempted suicide to succeed, “. . . there must be evidence
of intention on the part of the accused to cause his own death and there must be further evidence that
the accused actually took steps to kill himself. Mere preparation is not enough. It is a matter of evidence
whether the accused intended to cause his own death” – Twumasi Pg. 252. In other to prove intent on
the part of the accused, all the steps which the accused took must be taken into consideration.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 185
ABORTION Introduction Abortion has been classified as one of the offences against a person. It has been
made a criminal offence which is punishable under our Criminal Offences Act. What is abortion? Quoting
from Twumasi, abortion has been described (in the medical field) as “the event whereby the womb
expels the developing ovum before the twelfth week of pregnancy; and the word miscarriage is applied
to a situation where this expulsion takes place between the twelfth and twenty-eighth week of
pregnancy” – Twumasi Pg 253 The Criminal Offences Act also defines abortion under section 58(4) as
follows; For the purposes of this section, “abortion or miscarriage” means the premature expulsion or
removal of conception from the uterus or womb before the period of gestation is completed. Note must
be given to how Twumasi in his book and the Criminal Offences Act use abortion and miscarriage
interchangeably. Prof. Ofori-Amankwah in his book is of a different opinion. To him, the two (ie.
Abortion and miscarriage) cannot be used interchangeably. He writes; . . . with respect, this need not be
that case. Abortion connotes intentionality. It is a planned deliberate or conscious act by a woman with
her accomplice(s). Properly miscarriage should be reserved for all other cases where this vital element
of intentionality is absent. Abortion is generally provided for under section 58 of the Criminal Offences
Act. Section 58(1) provides generally for persons who can be guilty of abortion. The said section
provides; Subject to subsection (2) Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 186 (a) a woman who, with intent to cause abortion or miscarriage, administers
to herself or consents to be administered to her a poison, drug or other noxious thing or uses any
instrument or any other means whatsoever; or (b) any person who— (i) administers to a woman a
poison, drug or any other noxious thing or uses an instrument or any other means with the intent to
cause abortion or miscarriage of that woman, whether or not that woman is pregnant or has given her
consent; (ii) induces a woman to cause or consent to causing abortion or miscarriage; (iii) aids and abets
a woman to cause abortion or miscarriage; (iv) attempts to cause abortion or miscarriage; or (v) supplies
or procures a poison, drug, an instrument or any other thing knowing that it is intended to be used or
employed to cause abortion or miscarriage, commits a criminal offence and liable on conviction to a
term of imprisonment not exceeding five years. Section 58(1) (a) makes provision for a woman who
causes her own abortion while the whole of section 58(1) (b) (i)-(v) makes provision for any other person
who causes abortion. It must be noted that for both cases, intent is at the core. Hence, under section
58(1) (a) and (b), before a woman or any other person, can be guilty of abortion, intent to cause
abortion on the part of the woman who “administers to herself or consents to be administered to her a
poison, drug or other noxious thing or uses any instrument or any other means whatsoever” or in the
case of others “administers to a woman a poison, drug or any other noxious thing or uses an instrument
or any other means with the intent to cause abortion or miscarriage of that woman; Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 187 whether or not that
woman is pregnant or has given her consent; induces a woman to cause or consent to causing abortion
or miscarriage; aids and abets a woman to cause abortion or miscarriage; attempts to cause abortion or
miscarriage or supplies or procures a poison, drug, an instrument or any other thing knowing that it is
intended to be used or employed to cause abortion or miscarriage” must be established. It is not easy to
establish intent since even the “devil cannot read one’s mind”. “In any case . . . intention, not being
capable of direct proof, is always inferred from proven facts. In the case of abortion, the means used is
an important factor for determining intention to cause the event”. - Twumasi Pg. 255. The question may
then be asked; what constitutes a noxious thing? In R V HOLLIS AND ANOTHER, it was held that noxious
thing does not necessarily refer to poisonous substances and that ones the substance produces the
effect the Act prescribes then that substance can be said to be a ‘noxious thing’. Also in R V TITLEY, it
was held that if a man supplies any noxious thing intending it to be used to procure the miscarriage of a
woman, it is immaterial, and wil not serve as any defence that the woman is not in fact pregnant. Case;
OBENG V THE REPUBLIC FACTS; When one Christiana Mensah discovered that she was pregnant she
went with her friend, one Georgina Owusu Afriyie, to the appellant to ask if he could terminate her
pregnancy. In the presence of Georgina Owusu Afriyie the appellant agreed to procure an abortion on
Christiana Mensah. Subsequently the appellant administered four injections and following the last
injection he arranged for Christiana Mensah. to stay with one Ama Owusuah. who was informed of what
had happened. During the night, Christiana Mensah aborted and she was taken to the hospital by Ama
Owusuah. In due course the appellant was convicted of attempting to cause an abortion. On appeal the
appellant submitted (1) that the trial judge had failed to direct the jury that Georgina Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 188 Owusu Afriyie was an
accomplice with the requisite caution in the evaluation of her evidence therefore not having been given;
(2) that the evidence of Ama Owusuah. had not carried the prosecution's case any further because if the
test of sufficiency and clarity had been applied to the evidence it would have been found wanting; and
(3) that the trial judge erred when he directed the jury that "our law does not require that the
prosecution must prove that the abortion was caused by the means used." HELD; By a majority decision,
the court, in dismissing the appeal (per Sowah JA), said; The next ground of appeal relates to the
following passage from the judge's summing-up which counsel contends was a misdirection in law: "B.
The medical evidence is that the cause of the abortion is unknown, but the law does not require that the
prosecution must prove that the abortion was caused by the means used. However, if the jury is
satisfied that injections were given with the intent to cause the abortion, then alternatively, the jury can
find the accused guilty of attempt to cause abortion under section 18 of the Criminal Code. This they can
bring if they have doubts whether the injections could have caused the abortion but such doubts should
not be entertained by them provided they are satisfied that the accused did give the injections with
intent to cause abortion." It seems there is considerable confusion in the direction; quite clearly, the
judge was in error when he directed that our "law does not require that the prosecution must prove
that the abortion was caused by the means used." We think it the duty of the prosecution to establish,
first, the intent to cause miscarriage and secondly, the act or means used in furtherance of that intent. If
the act or means employed does result in the termination of pregnancy, then the prisoner is guilty of
causing abortion. If it is incapable of causing abortion or did not in fact result in miscarriage, then the
prisoner will only be guilty of an attempt. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 189 Had this passage stood unexplained, we
would have held that this was a clear misdirection of law. But the learned judge went further to explain
the means used in this case, namely, the administering of injections to Miss Mensa and directed that if
they accepted the prosecution's case but if on account of the doctor's evidence, they were in doubt as
to the cause of miscarriage, then they should bring a verdict of attempt at causing abortion. Though the
substance injected into Miss Mensa was unknown, there was clear evidence from Ama Owusuah that
shortly after the appellant had admitted administering the injections, Miss Mensa became ill, started
bleeding profusely and was rushed to hospital. The doctor's evidence shows a case of an incomplete
abortion when she was admitted. In these circumstances, the verdict open to the jury, if the case of the
prosecution was accepted, was that the appellant was guilty of the substantive offence. It is perhaps due
to the confusion in the direction that a lesser verdict was pronounced by the jury. The confusion had
inured to the benefit of the appellant. We could only surmise that the judge must have had at the back
of his mind English law, where the prosecution is obliged to establish the particular means used, namely,
miscarriage procured from the administration of a noxious drug or thing or through the use of an
instrument. Our law makes no such distinction; it is irrelevant what means were used provided whatever
means used was intended to cause the abortion. If the abortion in fact ensues, the prisoner is guilty of
the offence. Section 58(2) generally prescribes abortion as lawful when caused by the persons and at the
places specified and under certain circumstances. The section provides; (2) It is not a criminal offence
under subsection (1) if an abortion or a miscarriage is caused in any of the circumstances referred to in
paragraph (a) or (b) of subsection (1) by a registered medical practitioner specialising in Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 190 gynaecology or any other
registered medical practitioner in a Government hospital or in a private hospital or clinic registered
under the Private Hospitals and Maternity Homes Act, 1958 (No. 9) or in a place approved for the
purpose by legislative instrument made by the Minister: (a) where the pregnancy is the result of rape,
defilement of a female idiot or incest and the abortion or miscarriage is requested by the victim or her
next of kin or the person in loco parentis, if she lacks the capacity to make the request; (b) where the
continuance of the pregnancy would involve risk to the life of the pregnant woman or injury to her
physical or mental health and the woman consents to it or if she lacks the capacity to give the consent it
is given on her behalf by her next of kin or the person in loco parentis; or (c) where there is substantial
risk that if the child were born, it may suffer from, or later develop, a serious physical abnormality or
disease. See R V SMITH (JOHN) where the appellant carried on a special practice in the termination of
pregnancies. A young woman came to see him for an abortion. He neither examined her internally nor
asked about her medical history. No arrangements were made to seek a second medical opinion. He
agreed to terminate the pregnancy upon payment of some money. It was held that the pregnancy was
not terminated in good faith of the appellant. There was no medical risk to the girl of carrying the
pregnancy to term. He had acted in bad faith since he had no basis for carrying out the termination. See
also R V BOURNE where it was held that the doctor must not necessarily wait until the patient is in peril
of immediate death. It is his duty to perform the operation if on reasonable Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 191 grounds and adequate knowledge
and in good faith, he forms the opinion that it is necessary for the purpose of preventing the life of the
patient. Section 58(3) makes abortion a second degree felony. The sub-section provides; A person who
intentionally or unlawfully causes abortion or miscarriage commits a second degree felony It is worth
noting that section 59(1) which generally deals with attempt to cause abortion ‘although the woman is
not in fact pregnant has been scrubbed from the Criminal Offences Act. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 192 KIDNAPPING Kidnapping under the Act is
an aggravated offence. ‘The offence of Kidnapping is one of the most serious offences against the person
. . . because in some cases it can result in death’. – Ofori Amankwah Pg. 67. For this reason, section 89 of
Act 29 provides; A person who kidnaps another person commits a second degree felony. The definition
of kidnapping is generally provided for under section 90, which provides; A person commits the criminal
offence of kidnapping— (a) who unlawfully imprisons any other person, and takes that other person out
of the jurisdiction of the Court, without the consent of the other person; See R V D where the
respondent had taken his five-year old son outside the jurisdiction although the boy was a ward of court
and under the care of his mother. It was held that a father was capable of kidnapping his own child,
where under the circumstances, ingredients of the offence had been made out. (b) who unlawfully
imprisons any other person within the jurisdiction of the Court, in a manner that prevents the other
from applying to a Court for release or from discovering to any other person the place of the
imprisonment, or in a manner that prevents a person entitled to have access from discovering the place
where the other person is imprisoned. See R V REID where the appellant had been convicted of
kidnapping and maltreating his wife with whom he was co-habiting. It was held that the mere fact of
marriage does not entitle the appellant to carry away the wife from where she wished to remain or to
treat her with any hostile force. Note must be taken that the Act is silent on the age and sex of the
victim hence ‘any person of any age or sex may be a subject to this crime, which is contrary to the
fundermental democratic Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 193 right of the individual to apply to any court of competent jurisdiction for an
order of his release from any unlawful detention’.-Twumasi Pg 275 The prosecution must prove, in other
to establish the offence of kidnapping ‘. . . either (1) that without his consent the person was unlawfully
imprisoned and taken out of the jurisdiction of any court of competent jurisdiction, or (2) that the
person was detained or imprisoned within the jurisdiction of the court in such a manner or place that it
was practically impossible for the person himself or any other person to apply for his release owing to
the fact that where he was imprisoned could not be discovered’. Note ‘our law is not different because
the offence of kidnapping can be committed even where the person is imprisoned within the jurisdiction
of the court’- Twumasi Pg 275 Defences to a Charge of Kidnapping  where the accused person had legal
authority in imprisoning the person  where the accused person believes he is kidnapping the victim
either as a moral or civic duty or for the benefit of the victim Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 194 ABDUCTION AND CHILD STEALING 1.
ABDUCTION Abduction is governed by section 91 and 92 of the Criminal Offences Act. Section 91 makes
abduction a misdemeanor. The section provides; A person who abducts a child under eighteen years of
age shall be guilty of misdemeanour. It must be noted that for there to be abduction properly so called,
the child must be under eighteen years and it is also gender neuter, meaning both males and females
under eighteen years can be abducted. See DENYO V THE STATE where the appellant was charged with
abduction under section 91 of the Criminal Code, 1960 (Act 29), in that he abducted a girl under the age
of eighteen years. The complainant and her mother testified that she was seventeen years old. The
appellant was convicted and sentenced to six months' imprisonment with hard labour. He appealed
against the decision. At the hearing of the appeal counsel for the appellant applied successfully for leave
to adduce fresh evidence. Fresh evidence was adduced that the girl was in fact married and had a
twoyear-old child. In allowing the appeal, Sowah J said; It is my view that when such a charge is brought
the prosecution must prove strictly the age of the girl for it is a most essential element in the offence. It
may well be said that strict proof would be difficult in this country where births are not registered,
especially in the rural areas; if this is so, then for a witness to come to court and allege that a girl is
seventeen years old is to indulge in guesswork. I consider that the evidence that the girl was seventeen
years old at the time of the offence is not satisfactory and not up to the standard of proof required in
such a case. Abduction is defined under section 92(1) of the Criminal Offences Act which provides;
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 195 A person
commits the criminal offence of abduction of a child who with intent to deprive a person entitled to the
possession or control of the child or with intent to cause to be carnally known or unnatural carnally
known by any other persona. unlawfully takes the child from the lawful possession, care or change of a
person, or b. detains the child and prevents the child from returning to the lawful possession, care and
charge of a person. In R V TIMMINS, the accused, a married man, took an under-age girl out of her
father’s house for three days during which he slept with her at night. He did not intend to keep her
permanently. He was held guilty of abduction. Section 92(2) provides for the continuation of the
parent’s possession of a child although at the moment, the child is not at the parent’s actual possession
for special purposes only. The said section provides; The possession, control, care, or charge of a child by
a parent, guardian, or any other person continues, although the child is absent from actual possession,
control, care, or charge, if the absence is for a special purpose only, and is not intended by the parent,
guardian, or the other person to exclude or determine the possession, control, care, or charge for the
time being; Abduction can be said to have occurred only when the person taking or detaining the child
knew or had reasonable grounds for believing that the child was in the possession, etc, of another
person – Dr E. A. Archampong’s Study Guide Pg 21. For this purpose, section 92(3) provides;
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 196 A person
does not commit the criminal offence of abduction by taking or detaining a child unless that person
knew, or had grounds for believing that the child was in the possession, control, care, or charge of
another person. Defences The question may be posed whether there is any defence to the charge of
abduction. Twumasi writes; An essential ingredient of the offence is proof that the accused knew or had
grounds for believing that the female was in the possession, control, care, or charge of some person. It is
therefore a good defence if the accused can show that he did not know and had no grounds for
believing that the girl was under the care, etc of any person, but it is certainly no defence for the
accused that he had reasonable grounds for believing that the girl was of over eighteen years of age.-
Twumasi Pg 277. Section 95 provides for special provisions relating to child stealing and abduction. The
section provides; 1. For the purposes of the sections of this Chapter relating to childstealing and
abduction— (a) it is not necessary that the taking or detaining should be without the consent of the
person taken or detained, and it suffices if that person is persuaded, aided, or encouraged to depart or
not to return; This simply means that although the other person might have given consent, probably if
that person was ‘. . . persuaded, aided, or encouraged to depart or not to return’, the person who so
persuades, aid or encourages the other to depart with him or her will be liable for abduction or child
stealing Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 197
See R V ROBINS where the accused went to the house of a fifteen-yearold girl, held the ladder against
her window and helped the girl to descend. He then ran away to marry secretly with her. It was held
that the consent of the girl was immaterial to his liability for abduction. (b) it is not necessary that there
should be an intent permanently to deprive a person of the possession or control of the person taken or
detained; (c) a taking or detention is unlawful unless a person entitled to give consent to the taking or
detention of the person taken or detained, for the purposes for which that person is taken or detained,
gives consent to the taking or detention for those purposes; This provides for what may constitute
unlawful taking or detention. For example, if B gives consent to a friend, Mr. A. to take his daughter
away from school to spend the weekend with the kids of Mr. A at Mr. A’s house, then the detention is
lawful since B is the person entitled to give the consent. However, if there is no prior consent from the
possessor, and in this case, the parent of the child, then it will amount to unlawful detention. (d) a
person having the temporary possession, care, or charge of another person for a special purpose, as the
attendant, employer, or school master of that person, or in any other capacity, can commit stealing or
abduction of that person by acts which the mentioned person is not entitled to do for the special
purpose, and he cannot give consent to any act by another person which would be inconsistent with the
special purpose; and Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 198 Here, whatever act a person does to a child in his or her temporary care for a special
purpose, for example, the purposes of educating the child, and does anything in relation to the child
which he or she is not authorized to do, then abduction can be said to have been committed. (e)
notwithstanding the general provisions of Part I of this Act with respect to mistake of law, a person does
not commit the criminal offence of stealing or of abduction of another person by anything which that
person does in the bona fide belief of being entitled by law as a parent or guardian, or by virtue of any
other legal right, to take or detain the other person for the purposes of the taking or detention; ‘. . .a
mistake or ignorance of the law is no defence except as otherwise expressly provided. . .One such
express provision is section 95(e) of. . . (Act 29). . .’ – Twumasi Pg 278 An illustration is provided under
the section for this paragraph, which is; A mother, believing in good faith that she has a right to the
custody of her child in pursuance of an agreement with the father, takes it away from the father. She is
not guilty of the offence of abduction, although the agreement is invalid. Paragraph (e) of sub-section 1
does not exempt a person from liability to punishment on the plea that that person did not know or
believe, or had not the means of knowing that the age of the other person was under fourteen or
eighteen years; nor exempt a person from liability to punishment as for stealing or abduction if that
person took or detained the other person for an immoral purpose. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 199 2. CHILD STEALING Section 93 of Act 29
provides; A person who steals a person under fourteen years of age, whether with or without consent,
commits a second degree felony. ‘Section 93 of the Code as amended by Act 554, makes it an offence to
steal a child below the age of 14. Before the passing of Act 554, the age limit was 12. The seems to leave
a gap which does not cover the ages of 14 to 17. Possibly this age group may be catered for by the law
on kidnapping’.-Ofori Amankwah Pg 98 Section 94 as a whole defines child stealing. It also provides for
the ingredients of the offence. The said section provides; (1) A person steals another person if the first
mentioned person unlawfully takes or detains the other person, with intent to deprive the other person
of the possession or control to which any person is entitled, or with intent to steal anything on or about
his body, or with intent to cause harm, to, that other person. The ingredients of this offence, as
contained in section 94(1) are  ‘unlawfully takes or detains the other person’;  ‘with intent to deprive
the other person of the possession or control to which any person is entitled’;  ‘or with intent to steal
anything on or about the body of’;  ‘or with intent to cause harm, to, that other person.’ (2) For the
purposes of subsection (1), it is not necessary to prove that the person stolen had been taken from the
possession, care, or charge of a person, if it is shown that some person, other than the accused person,
was entitled to the control or possession of the person stolen. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 200 ‘It is enough in a charge of child-stealing
to prove that the accused is not the person entitled to possession, care, control or charge of the person
stolen’- Twumasi Pg 280 See REGINA V DJOMO where the appellant was charged before Scott J. sitting
with assessors for child stealing. At the trial one witness said that she saw appellant at night with the
child (aged 5) going in the direction of a fetish. The appellant explained to her that the child was
showing him to a certain house. On further questioning, the appellant ran to the bush, leaving the child
behind. Three other prosecution witnesses said that later that night they saw appellant and in answer to
their questions, he admitted he “had done it” and apologised. He also gave the explanation that he took
the child only for the purpose of having a certain house pointed out to him, and that he ran into the
bush for fear of being harmed by the other villagers. The Odikro of the village said that when he asked
the appellant if the allegation of stealing the child was true, the appellant replied it “was true, he had
done wrong." In his defence, appellant said he had never seen the child and the evidence of the
prosecution witnesses was fabricated to punish him for having insulted a fetish. The appellant was
convicted and sentenced to 3 years I.H.L. On appeal the conviction and sentence were quashed.
Granville Sharp JA in delivering the judgement of the court said; In the first place, it must be said that a
confession of having "done wrong ", accompanied by an apology, does not (especially in this country)
necessarily amount to a confession that a crime has been committed. It often means no more than this,
"If what I have done has given you offence, I beg you to forgive me." Apart from these alleged
admissions on the part of the appellant, the case against him Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 201 rested upon circumstantial evidence. The
question which ought to have been (but was not) considered by the learned judge, and upon which he
ought to have directed both the assessors and himself, was: "Do the circumstances in which the accused
was found with the child point necessarily to his guilt, and to no other logical conclusion." The
explanation which had repeatedly been given by the appellant should have been pointed out as being
one of the matters that had to be considered in arriving at an answer to this question. This was not
done. For ourselves, we cannot find on the recorded evidence that the prosecution evidence necessarily
justified a conclusion that, in terms of section 209 of Criminal Code, the appellant took the child, or
detained him, “with intent to deprive of the possession or control of him" some person entitled thereto.
A probability that the appellant's explanation may have been true cannot be excluded. It does not
appear that this received any consideration, either in the minds of the assessors, or in the mind of the
learned judge himself. Section 95 [supra] provides for special provisions relating to child stealing and
abduction. For the constituent elements of the offence of child stealing, Twumasi writes; The
constituent elements of the offence of child stealing may therefore include the following; first, it must
be strictly proved that the person stolen is under twelve years of age. If it is proved that the child is
twelve years of age or more the accused is entitled to acquittal, but it is no defence for the accused to
say that he did not know or believe that the child was under twelve years or that he had reasonable
cause to believe that the child was of twelve years of age or over, or that he had no means of knowing
his age. On the other hand, it is a good defence that the accused took the child in the Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 202 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
for which he took or detained him. But this rule does not apply if the accused is proved to have taken or
detained the person for an immoral purpose. Secondly, the prosecution must prove that the person
stolen is under the possession or care or charge of some person other than the accused. In other words,
the prosecution may, but it has no duty, to prove that the person stolen was under the possession, care
or charge of any particular person It is enough in a charge of child-stealing to prove that the accused is
not the person entitled to possession, care, control or charge of the person stolen. No submission will
therefore be upheld in a charge of child-stealing that the prosecution failed to prove that the child was
under the possession, care or control of the person whose name is mentioned in the particulars of
offence. It may be pointed out, however, that proof that the child stolen is under the possession, care,
control or charge of, say, a Mr. A can easily help establish that in fact the person stolen was under the
possession or care of some person other than the accused, but failure to do this is not fatal to the
prosecution’s case if it is proved that the accused is not entitled to such possession, care, control or
charge over the person stolen. Thirdly, it is not necessary to prove absence of consent to the taking or
detaining of the person stolen. Like the charge of abduction, the fact that the child himself consented is
no defence. Fourthly, the law is the same as in a case of abduction as to intent to deprive of the
possession or control of him any person entitled thereto. And it is immaterial whether the intent is to
keep the child permanently or for a short period. But in a case of child-stealing the prosecution may in
appropriate prove that the accused took the child or detain him with intent either to steal something
upon or about his body or to cause any harm to him. – Twumasi Pg. 280 Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 203 CHILD ABONDONMENT Section 96 of the
Criminal Offences Act deals with the criminal offence of child abandonment. The said section provides; A
person who is bound by law, or by virtue of an agreement or employment, to keep charge of or to
maintain a child under five years of age, or who is unlawfully in possession of a child, abandons the child
by leaving it at a hospital, or at the house of any other persons, or in any other manner, commits a
misdemeanour. Note must be given to the age, for as per the section, a child of five years and above
cannot be said to have been abandoned, so far as this section is concerned. It is also punished as a
misdemeanour. Twumasi writes; . . . there is no duty on the prosecution to prove any intent on the part
of the accused. Mere abandonment of an infant under five years of age at any hospital, or house of any
person or in any other manner is sufficient, provided the person abandoning the infant is proved to be
bound by law, or by any agreement or employment to keep charge or maintain the child or that he has
unlawfully taken possession of the child. It must be added, however, that failure to prove any of the
above essentials, especially the fact that the infant is under five years of age is fatal. Therefore whether
the accused is by law bound to look after the child or he has stolen him, it is his duty to maintain him
and not to abandon him. The fact that the child could have been picked up and cared for by the hospital
authorities or by the owner or inmate of the house where he was abandoned or that he was placed in
such a manner that no harm was likely to be caused to it affords no defence to the charge.- Twumasi Pg
281 See R V WHITE, where a child of nine months was left outside its father’s house by the mother. The
father refused to pick it up and take it inside. The result was that the child nearly died from the cold and
it was with some effort that it was revived. The father was prosecuted for Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 204 abandonment and was convicted.
On a reserved question of whether a father could be liable for abandonment. It was held that since a
father owed a duty to protect and provided for a child, his leaving a child out there in the cold
constituted abandonment. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 205 CONCEALMENT OF THE BODY OF A CHILD Concealment of the body of a
child has been made an offence under the Criminal Offences Act and is punished as a misdemeanor.
Section 62(1) of Act 29 provides; A person conceals the body of a child, whether the child was born alive
or not, with intent to conceal the fact of its birth, existence, or death, or the manner or cause of its
death, commits a misdemeanour. Section 62(2) provides that the offence of concealment does not apply
in certain circumstances. The said section provides; Section (1) does not apply to; a. the case of a child of
less than six months growth before its birth; b. the case of intent to conceal the birth, existence, or the
manner or cause of its death, from a particular person but it is requisite that there should be an intent
to conceal the body from persons generally, except persons who abet or consent to the concealment.
The question which may then be asked is; why does concealment not apply to the case of a child less
than six months. Twumasi, provided some answer in his book. He said; It is thought that at the age of six
months a conceived child may have developed into something which can properly be regarded as a child
for the purposes of the offence. If the child is less than six months growth there may be a doubt as to its
chance of survival on being brought forth. The offence can be committed by either the mother of the
child or by any other person. For this reason, section 62(3) provides; Section 62 applies to the mother of
the child as to any other person. Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 206 “for the offence to be committed by either the mother or any other
person, the child need not necessarily be secretly disposed of; it is sufficient if the child is abandoned in
any public place, provided the accused abandoned it for the purpose of concealing the fact of its birth or
existence. Section 63 explains that concealment of the body of a child covers; (1) Any secret disposition
of the body of a child, whether it be intended to be permanent or not, may be a concealment. (2) The
abandonment of the body of a child in any public place may be a concealment, if the body is abandoned
for the purpose of concealing the fact of its birth or existence. Twumasi throws more light in his book by
writing; The essential element is the intent to conceal the fact of its birth, existence, or death or the
manner or cause of its death. Therefore any disposition of the body of the newly-born child is sufficient
provided the intention is proved and it is immaterial whether the concealment is intended to be
permanent or temporary . . . In all cases of this nature the act of concealment must be established. This
in our law includes any secret disposition or the abandonment of the child in any public place. When a
child is abandoned at a public place, there is the likelihood of its being found by somebody. Therefore
our law of concealment comprehends the exposure of the child in a secret or secluded place where it is
not likely to be found, provided that, in both cases, there is evidence of intention to conceal the fact of
its birth or existence, etc . . . the harm must be proved to have been caused by the accused to a child of
not less than six months growth. It is not enough to prove that the accused intended to conceal the fact
of the birth, existence or death or the manner or cause of its death from any particular person. There
must be a proof that the accused intended the concealment against all persons (the world at large). And
the fact that the accused did not conceal the child from any accomplice in the act (such as a nurse who
helped Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 207
her in the concealment) does not detract from the guilt of the accused of the offence of concealment.” –
Twumasi Pg 264 - 265 CASE; DONKOH V THE REPUBLIC FACTS; The appellant aged about eighteen years
became pregnant by one Gariba Sadick who according to her had been her boy friend for two years prior
to the date of her arrest. The evidence is not clear as to the date of her conception but the undisputed
facts however show that there was some interference with the pregnancy on the instructions of the said
Gariba as a result of which on 16 November 1973, the appellant aborted and the baby was found in a
public latrine. Following a report made to the police not long after the appellant had left the public
latrine, she was traced to a friend's house where she was arrested and taken first to the Cape Coast
District Police Station in a semi-conscious state and later to the Cape Coast General Hospital where the
placenta was removed. The appellant was arraigned before the Cape Coast District Court Grade I
charged with the offence of concealment of the body of a child under section 62 of the Criminal Code,
1960 (Act 29). In the Magistrate court below the prosecution presented no evidence beyond the
following: (a) that the appellant was pregnant, (b) that she was delivered of a baby, (c) that the baby
was later found abandoned in a public latrine and (d) that the appellant was later traced to the house of
a friend in a semi-conscious state where she was arrested. The appellant in the court below did not deny
any of the facts testified by the prosecution as stated above but explained that on the day of the
incident she went to the latrine when something dropped from her after which she started bleeding.
She became frightened so she decided to walk to a friend's house with a view to informing her of what
had happened and that she was waiting for the friend who was then in the house when she started
feeling pains and was dizzy. She did not see anything again until she later found herself in the hospital.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 208 The trial
learned magistrate on these facts, found her guilty of the offence, convicted her and sentenced her to a
term of six months' imprisonment with hard labour. It is from this decision that the present appeal has
been brought to the High Court court. HELD; The appeal was allowed in the high court. Wiredu J (as he
then was) in his analysis of what constituted the offence of concealment said; A careful and critical
examination of both sections 62 and 63 of Act 29 and some decided cases and review of the English Act
in Russell on Crime (12th ed.), Vol. 1, pp. 607-611 reveal that in order to succeed under section 62 the
whole of section 63 must be considered. Section 62 itself creates the offence of concealment of the
body of a child. Section 63 (1) and (2) explain what may constitute concealment within the language of
section 62. Whilst subsections (3) and (4) identify the kind of child in respect of which prosecution under
section 62 is contemplated and the nature of concealment envisaged under section 62 respectively. In
order to succeed under section 62 of Act 29 therefore, the prosecution must choose particulars which
fall within either subsection (1) or (2) of section 63. In addition the prosecution must establish by
evidence that the child was of six months' growth or above and that the intention was to conceal the
child's birth, death or existence from the whole world save persons who are accomplices: see section 63
(4) of Act 29 and R. v. Morris (supra). For the prosecution to have succeeded on the particulars as
brought against the appellant, the evidence should have shown that: (a) the appellant was delivered of a
baby, (b) that she either secretly deposited it or abandoned it in the public latrine, (c) that the foetus
was aged six months or above, and that (d) 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 Downloaded
by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 209 accomplices to the
crime: see section 63 (4) of Act 29 and the Morris case (supra). What constitutes secret disposition and
abandonment within the language of the Act is a question of fact depending upon the circumstances of
each particular case: see R. v. Sleep (1864) 9 Cox C.C. 559. R. v. Waterage (1846) 1 Cox C.C. 338 seems to
suggest that in order to succeed under the English Act the disposition of the child or the baby must have
been complete. . . . It is clear from the facts of the instant case that no prima facie case was made out
against the appellant at the close of the prosecution's case upon which she could be called to answer. In
this regard the learned trial magistrate with respect erred by calling on her. I will therefore uphold the
submission by learned counsel for the appellant that the conviction was wrong. The appeal therefore
succeeds and it is accordingly allowed. The conviction of the appellant is hereby quashed and her
sentence set aside. She is accordingly acquitted and discharged. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 210 SEXUAL OFFENCES RAPE Rape is a serious
offence committed against women. Section 97 and 98 generally provides for the sexual offence of rape.
Section 97 provides for the penalty of rape. It provides; A person who commits rape commits a first
degree felony and shall be liable on conviction to a term of imprisonment of not less than five years and
not more than twenty-five years. Section 98 also gives the definition of rape. It provides; Rape is the
carnal knowledge of a female of not less than sixteen years without her consent. This provision
therefore makes it impossible for a male to be raped since it is “. . . the canal knowledge of a female . . .”
Canal knowledge is also defined by case law in such a way that it involves penetration which can only be
carried out, so far as the two sexes are concerned, by the male and on the female. Canal knowledge has
been defined in the case of QUEEN V PAPADIMITROPULOUS as the physical act of penetration. Making it
simpler, Twumasi in his book describes canal knowledge as sexual intercourse. For this reason, in
defining rape, he wrote; A person is guilty of rape if it is proved against him that he has had canal
knowledge of, or sexual intercourse with, a female of any age without her consent – Twumasi Pg 281
With due respect, Twumasi’s definition is quite faulty because of the phrase “. . . female of any age . . .”
Clearly, the Criminal Offences Act and even the old Criminal Code provides for a minimum age when it
clearly states “. . . female of not less than sixteen years . . .” However, no maximum age was specified.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 211 Prof.
Ofori Amankwah also defines canal knowledge in his book as “. . . where there is a penetration of the
female organ by the male organ without the consent of the female victim.” Who May Be Convicted of
Rape? It has already been established that it is only the male who can carry out the offence of rape
because of the requirement of canal knowledge, that is, the physical act of penetration. This is however
qualified by a general provision in the Criminal Offences Act. Under the Act, the age for criminal liability
is 12 years (i.e. section 26). Hence, for the purposes of Act 29, a person under the age of 12 cannot
commit any criminal offence, including rape. Marital rape Twumasi discuses this issue under the old law
in his book. He wrote; The next question to consider is whether a husband can be convicted of raping his
wife. Here we may advert to the provisions of section 42(g) of the Criminal Code, 1960 (Act 29), which
states that; a person may revoke any consent which he has given to the use of force against him, and his
consent when so revoked shall have no effect for justifying force; save that the consent given by
husband or wife at marriage, for the purposes of marriage, cannot be revoked until the parties are
divorced or separated by a judgment or decree of a competent Court. This provision lays down a general
preposition that a husband cannot be guilty of rape upon his wife because, by their voluntary coming
together by law as husband and wife, they are deemed to have accepted the legal incidence of such a
contract, namely, the right of the husband to have sexual intercourse with his wife and the latter’s
consent to the exercise of such right by her husband which she cannot revoke extra judicially. During the
subsistence of their marriage, therefore, the wife cannot raise any complaint in respect of sexual
intercourse against the husband except, of course, the act is unnatural. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 212 A marriage, namely, marriage under the
ordinance, ceases to exist upon a valid judgment of divorce by a court of competent jurisdiction and
thereafter, the ex-husband can properly be convicted for raping the ex-wife as his position is by no
means better than any other person in relation to the woman. As distinct from a judgment of divorce,
which effectually dissolves the marriage and entitles either party to contract a fresh marriage, a
judgment or an order for separation does not affect the continuance of the marriage. The parties are
merely separated with or without any conditions, depending on the circumstances of the case. But
during the continuance, or when the separation is in force, it has the effect of revoking the consent
which the wife was deemed by law to have given to sexual intercourse. Consequently, the husband can
be convicted of rape if he is proved to have had sexual intercourse with the wife without her consent.
This was the position of the law before 2007 when the Criminal Code was repealed and replaced with
the Criminal Offences Act, 1960 (Act 29) which recognized for the first time “marital rape”. The “implied
perpetual consent” by the wife, of the husband to sex has been exempted from the general provision
under section 42(g). Justice V. C. R. A. C. Crabbe, who was engaged by government as the commissioner
of the law review commission sought to review the Criminal Code and other laws for the consideration
and enactment by parliament, took out this “implied perpetual consent” to sex by the wife, of the
husband, on the ground of it being unconstitutional since it discriminated against married females from
unmarried females who can be raped. Consent The issue of consent is very important in proving or
otherwise the offence of rape. Hence, one can be said to have been raped where there was no consent
on the part of the female. Under this, Twumasi wrote; It is a good defence for any person charged with
rape that the female gave her consent to the sexual act. The prosecution must therefore prove absence
of consent on the part of the female alleged to have been ravished. The prosecution may do so
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 213 by
proving any of the provisions of section 14 . . . which render consent void and of no legal effect for the
purposes of rape. Section 14 as mentioned, is a general provision dealing with consent and situations
where it will be made void. For emphasis, the said section provides; In construing any provision of this
Act where it is required for a criminal act or criminal intent that an act should be done or intended to be
done without a person's consent, or by which it is required for a matter of justification or exemption
that an act should be done with a person's consent, (a) a consent is void if the person giving the consent
is under twelve years of age, or in the case of an act involving a sexual offence, sixteen years, or is, by
reason of insanity or of immaturity, or of any other permanent or temporary incapability whether from
intoxication or any other cause, unable to understand the nature or consequences of the act to which
the consent is given. (b) a consent is void if it is obtained by means of deceit or of duress; (c) a consent is
void if it is obtained by or under the exercise of an official, a parental, or any other authority; and the
authority which is exercised otherwise than in good faith for the purposes for which it is allowed by law,
is, for the purposes of this section, power unduly exercised; (d) a consent is given on behalf of a person
by his parent, guardian of that person, or any other person authorised by law to give or refuse consent
on behalf of that person, is void if it is not given in good faith for the benefit of the person on whose
behalf it is given; (e) a consent does not have effect if it is given by reason of a fundamental mistake of
fact; Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 214 (f) a
consent is, for the purposes of this section obtained by means of deceit or duress, or of the undue
exercise of authority, or to have been given by reason of a mistake of fact, if it would have been refused
but for such deceit, duress, exercise of authority, or mistake; (g) the exercise of authority, for the
purposes of this section, is not limited to the exercise of authority by way of command, but includes
influence or advice purporting to be used or given by virtue of an authority; (h) a person shall not be
prejudiced by the invalidity of a consent if that person did not know, and could not by the exercise of
reasonable diligence have known, of the invalidity. If consent is given under any of these circumstances,
for the purposes of rape, and where applicable, the consent will be vitiated and therefore invalid, hence,
rape. Cases KAITAMAKYI V R where the appellant discovered after penetration that the woman was not
consenting. He however did not desist from the intercourse. He was held to have raped her. The court
stated that “sexual intercourse is a continuing act which ends only in withdrawal”. In not desisting
therefore, the appellant had been properly convicted of rape. R V FLATTERY where the prosecutrix
submitted to the sexual intercourse with the accused, under the belief that he was performing a surgical
operation to cure her of a bout of fits. It was held that the act to which the prosecutrix submitted to was
materially different from what the accused did. She consented to being treated medically, and not to the
accused having sexual intercourse with her. The act therefore amounted to rape. R V LINEKAR where a
prostitute laid a charge of rape against a 17 year old boy who failed to pay her after he had had sex with
her. He was convicted on the ground that his fraud vitiated the contract as he did not possess the £25
which was her charge, and therefore had no intention of Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 215 paying her at the time he contracted for
her services. He appealed against his conviction. It was held that although the boy’s conduct had been
fraudulent, there was no fraud as regards the nature of the act he intended to engage in with her.
Evidence of Canal Knowledge Section 99 of the Criminal Offences Act deals with evidence of canal
knowledge. The section provides; Where, on the trial of a person for an offence punishable under this
Act, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or
unnatural carnal knowledge is complete on proof of the least degree of penetration. The prosecution is
to prove the least degree of penetration. Twumasi in his book, wrote; Whenever upon the trial of any
person for any offence punishable under the criminal code [Criminal Offences Act], it becomes necessary
to prove canal knowledge, the canal knowledge shall be deemed complete upon proof of any, the
slightest or least degree of penetration only. It is purely a question of fact whether there was any
penetration. But it is very important for the prosecution to prove penetration. But it is very essential for
the prosecution to prove penetration in other to succeed in establishing the commission of rape.
Therefore, it is not necessary for the prosecution to prove that the hymen was raptured or that there
was emission. Penetration is undoubtedly a most essential evidence in the proof of rape. If that is not
proved satisfactorily, the accused may, if the facts support it, be convicted of attempted rape or assault
(involving indecency) as the case may be.-Twumasi Pg 284 – 285 See R V MARSDEN where the accused
had been convicted of carnal knowledge of a girl of ten years old. There was evidence of penetration
and not emission. On a reserved question, the court Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 216 held that the requirement of the law is of
penetration and not emission and therefore the offence was completely proved. NB. Prove of intent to
rape is very essential for the charge to succeed. Twumasi again wrote at page 285 that “Furthermore,
proof of intent to rape is essential. If that is not proved, the accused may be convicted of assault
(indecent assault).” Corroboration Both Archbold and Halsbury says corroboration is not essential in law
but nevertheless it is desirable in practice and a court is expected to look for such corroboration. – Dr.
Elizabeth A. Archampong paraphrasing Twumasi at page 285 The question may then be asked; what
then amounts to corroboration. Twumasi, in discussing corroboration in his book said; The answer may
involve the general nature of corroboration in law . . . Suffice it to say at this stage that evidence of
corroboration is evidence which tends to implicate, connect and link the accused with the commission
of the crime. Corroboration must not only confirm or support in some material particular the fact that a
crime has been committed but also, and even more importantly, that it was the accused who committed
the crime; the evidence must tend to show that what the witness says against the accused is true.
Corroboration may be direct or circumstantial and it is not necessary that it should be repetitive of all
that one witness has said. It is sufficient if it supports material or relevant portions of the witness’
evidence. In order that it may be accepted, corroboration must be clear and unambiguous. – Twumasi
Pg 285 - 286 In referring to a case, Twumasi goes on to state what may amount to corroboration in
sexual offences at page 286. He mentions “the complaint, the doctor’s evidence and the prisoner’s
denials in cross-examination, and finally, the statement of the appellant when arrested, are all
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 217 facts that
the jury are entitled to take into consideration as being to some degree corroboration of the
prosecutrix’s story.” He says too on the same page that “ evidence of a complaint by the female does
not amount to corroboration, but the fact that she made it shortly after the incident is evidence of her
conduct with her evidence at trial. In order that her story may not be regarded as fabricated, a female
who is ravished without her consent is expected to make a complaint of the incident at the earliest
opportunity. He continues in another paragraph and on the same page; “Immediate complaint made . . .
after the alleged canal knowledge is important . . . because . . . it almost invariably, affords opportunity
for the girl or the boy to be medically examined for the purpose of establishing corroboration” Evidence
of the complaint’s character Twumasi treated this aspect in his book and it is provided below; This is
very important, again, on the question of whether or not it is true that the act was done without the
consent of the prosecutrix. If the prisoner can show that he has had previous sexual connection with the
complainant, or that the girl is a common prostitute and of such an immoral character her story should
be subjected to severe and thorough cross-examination so that the jury might have a proper perspective
of the task before them as to absent of consent to the alleged sexual intercourse. And in face, both in
law and commonsense such an exercise is permissible and there is ample legal authority to that effect.
The snag about this rule, however, is that even though the prosecutrix may be subjected to cross
examination tending to establish her immoral character, when she denies any suggestion, the prisoner
or his counsel has no right to contradict her denial by calling witnesses in that respect; nor can the
prisoner too, if called upon to answer to the charge, be cross-examined as to his bad character merely
because he has sought to impugn the reputation of the prosecutrix. – Twumasi Pg 287 Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 218 DEFILEMENT According to
Twumasi at page 287, “the ordinary dictionary meaning of “defile” is to corrupt the purity or chastity of.
In plain words, to defile a female is to carnally know her and thereby corrupt her chastity”. Section 101
of the Criminal Offences Act deals with the issue of defilement. Subsection 1 defines defilement. It
states; For purposes of this Act, defilement is the natural or unnatural carnal knowledge of a child under
sixteen years of age. This section sets the maximum age of one who may be defiled at any age below
sixteen years. It is also important to note the gender neuter character of this offence to the child The
punishment for the offence of defilement is provided under subsection 2. It provides; A person who
naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the
consent, commits a criminal offence and is liable on summary conviction to a term of imprisonment not
less than seven years and not more than twenty-five years. It must be noted that under this subsection,
consent by a child of less than 16 years is irrelevant and cannot be a defence to the charge. See
REPUBLIC V YEBOAH, where the accused was tried at the High Court with assessors on a charge of
defilement of a female under ten years contrary to the Criminal Code, 1960 (Act 29), s. 101. The victim,
aged nine years, testified that the accused had intercourse with her in his workshop. Even though she
felt pains she never reported the incident till about a week after when she confessed to her mother. A
doctor who examined the accused and the victim testified that the victim had a tear in her hymen,
inflammation in her vagina, and that both the accused and the victim had gonorrhea infection. The
accused denied the offence and maintained that he was impotent and incapable of having intercourse.
The court found as a fact that the victim was defiled. On the issue whether it was the accused who
defiled her. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
219 In convicting the accused, Baidoo J made certain pronouncement concerning consent. He said; I
have not lost sight of the fact that the second prosecution witness failed to make any report or
complaint to her mother or anyone until about a week later but this in my view merely goes to show
perhaps that the second prosecution witness was a willing victim but consent of the girl is no defence in
such a charge. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
220 CARNAL AND UNATURAL CARNAL KNOWLEDGE OF A PERSON WITH MENTAL INCAPACITY This is
generally governed by section 102 of the Criminal Offences Act. The said section provides; A person who
has carnal knowledge or has unnatural carnal knowledge of an idiot, imbecile or a mental patient in or
under the care of a mental hospital whether with or without the consent of that person, in
circumstances which prove that the accused knew at the time of the commission of the criminal offence
that the other person has a mental incapacity commits a criminal offence and is liable on summary
conviction to a term of imprisonment of not less than five and not more than twenty-five years. Just like
people under the age of sixteen years, people with mental incapacities of the kind stated above, cannot
give consent to sex. Twumasi, on the issue of consent, wrote at page 292; “For the purposes of giving or
refusing consent to any act of carnal knowledge, all such persons of defective mental capacity as
mentioned here are placed in the same categories as females of tender years . . . Consent by such
persons to any form of canal knowledge is no defence. The fact is that consent given by any such person
is itself void in law.” See R V PRESSY, where the accused had sexual intercourse with a thirty seven year
old female who was an apparent idiot. It was held that the accused was guilty of an offence. Note must
be given to the various definitions of categories of mental illness given by Twumasi in his book. He wrote
at page 292 that “An idiot is a person, who, right from his birth has had no mind, noi mental faculties to
understand or appreciate anything. An imbecile is a person who has ones had a sound mind of some
kind but owing to decay or to other mental or physical causes have ceased to have a sound mind. He is a
mentally infirm person. . . In forensic psychiatry and law, lunacy means any mental unsoundness to the
point of irresponsibility, and so a lunatic is a person affected by lunacy. And insanity means any degree
of mental unsoundness resulting in Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 221 inability to distinguish between right and wrong, or to control the will or
see the consequences of an act.” Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 222 INDECENT ASSAULT Section 103 of Act 29 provides generally for the
criminal offence of indecent assault. Subsection 1 provides for the punishment for this offence. It
provides; A person who indecently assaults another person commits a misdemeanour and is liable on
conviction to a term of imprisonment of not less than six months. Subsection 2 also provides; A person
commits the offence of indecent assault if, without the consent of the other person that person (a)
forcibly makes a sexual bodily contact with the other person; or (b) sexually violates the body of the
other person, in a manner not amounting to carnal knowledge or unnatural carnal knowledge. An
important thing to note is that this section is gender neutral, hence, a female can commit this offence in
as much as a male can also commit the offence. Cases ALAWUSA V ODUSOTE The appellant in this case
was tried before the Magistrate of Ijebu-Ode on counts charging offences against sections 360 and 353
of the Criminal Code but by an obvious clerical error the statement of offence in each count was
worded" Grievous Harm" which is appropriate to the latter only. In the first, as is obvious from the
particulars of offence, it should have been "Indecent Assault.' , There was another count of larceny with
which we are not concerned. The Magistrate convicted appellant on the count contra. section 360 only.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 223 On
appeal to the High Court the learned Judge upheld the conviction but amended the statement of offence
to read " Indecent Assault on a female" under section 172 (1) of Chapter 21 as we think he had power to
do. The facts proved were that appellant shaved the pubic hairs of the complainant whom he had
married in accordance with Native law and custom and the only point which falls for our decision is
whether a conviction of a man for indecent assault on his wife can stand. Appellant's counsel has argued
that it cannot on the ground that a man cannot be convicted of rape upon his wife and that the greater
includes the less. While not agreeing that this argument is conclusive or even. logical, since a man can
undoubtedly be convicted as an accessory to a rape on his wife and presumably also to an indecent
assault upon her, and indecent assault is not as the argument seems to assume a lesser form of rape, we
think that there is this much in it that an assault upon a wife is not rendered indecent by circumstances
which would render it indecent in the case of another woman. In the present case the appellant
undoubtedly committed an assault the enormity of which a very slight acquaintance with native ideas
will suffice to make apparent, but we do not think that as between husband and wife it could properly
be characterised as indecent. It is, however, clear that the Magistrate could have found the appellant
guilty of a common assault contra. sec. 351 under the provisions of section 58 (1) Chapter 20, and we
accordingly, in exercise of our power under section 11 (2) of the West African Court of Appeal.
Ordinance substitute following the verdict of guilty of indecent assault contra. sec. 360 a verdict of guilty
of assault contra.section 351 of the Criminal Code and pass sentence of six weeks imprisonment with
hard labour. BOLDUC & BIRD V QUEEN In this case, the first appellant was a doctor who, about to
conduct a vaginal examination of a patient, invited his lay friend – the second appellant – to the present
and watch the procedure. The doctor introduced the friend as a medical intern and in consequence, the
woman consented to his presence. The two persons were convicted of indecent assault on the woman
and their convictions were affirmed by an appellate court. On further appeal, the convictions were
quashed Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 224
because although her consent had been procured by a misrepresentation, it did not affect the nature
and quality of the act i.e. the medical examination, to which she consented. Since the second appellant
had merely stood and looked on, his act could not amount to an assault. R V SARGEANT The appellant
was convicted of indecent assault on a male. He had grabbed the complainant when he was on his way
home and forced him to masturbate into a condom. Although, he grabbed the complainant physically,
he did not touch him in a sexual manner. The question was whter there can be an indecent assault in
law when there had been no indecent touching. In dismissing the appeal, the court held that to compel
a person to masturbate in a public place was an indecent act and could support a charge of indecent
assault. DPP V ROGERS A father got his 11 year old daughter to masturbate him on a number of
occasions. His prosecution on a charge of indecent assault failed because he had not made any physical
contact with her person. R V MASON A married woman had sex with about six boys aged between 14 –
16 years on various occasions. She was indicted for indecent assault, but the prosecution failed because
there was no evidence of her having used force on them, or even that she had made a contact with their
person. Since they had done the penetration, and with her consent, no offence had been committed.
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UNNATURAL CARNAL KNOWLEDGE The offence of unnatural carnal knowledge is generally provided
under section 104 Act 29. Subsection 1 indicates that; A person who has unnatural carnal knowledge (a)
of another person of not less than sixteen years of age or over without the consent of that other person
commits a first degree felony and is liable on conviction to a term of imprisonment of not less than five
years and not more than twenty-five years; or ATTORNEY GENERAL’S REFERENCE NO. 19 OF 1992 where
a husband committed buggery on his wife on several occasions. There was evidence that sometimes the
buggery took place under horrific conditions. On appeal against the sentence, the court held that the
circumstances were such that a lenient sentence will be inappropriate. (b) of another person of not less
than sixteen years of age with the consent of that other person commits a misdemeanour; or (c) of an
animal commits a misdemeanour. Subsection 2 also provides for the definition of unnatural carnal
knowledge. It provides; Unnatural carnal knowledge is sexual intercourse with a person in an unnatural
manner or, with an animal. See R V ALLEN where the accused induced a twelve year old boy to sodomize
him. It was held that although, the accused was the one sodomized, he was guilty of unnatural carnal
knowledge. Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
226 The question which arises then is; what is sexual intercourse in an unnatural manner? Both Twumasi
and Prof. Ofori Amankwah provides certain answers in their books. Twumasi in his book, wrote; A
natural carnal knowledge is understood to mean a natural sexual connection between male and female
human beings. Homosexuality is no less unnatural than for a male human being to have carnal
knowledge of an animal or a female human being, permitting an animal, to carnally know her. The
essence of unnatural carnal knowledge is that the sexual intercourse is done contrary to the norms of
nature and therefore a man and a woman can properly be convicted of unnatural sexual intercourse.-
Twumasi Pg 294 Prof. Ofori Amankwah in his book also wrote; Herterosexual life, that is between man
and woman, is the natural form of sex life proclaimed by our Maker. Any other formulae is unnatural;
that will include homosexuality, lesbianism, and sex between man and an animal or between a woman
and a beast. See Dr. Konotey – Ahulu’s book WHAT IS AIDS? At page 32 where the learned author
discusses “abnormal sex” as the principal cause of the dreaded HIV AIDS. “Unnatural carnal knowledge”
means more than bestiality and sexual deprivation as we know it in family law. In family law, for
example, sex with the best man or maid of honour, or with a house girl, could amount to depravity.
Unnatural carnal knowledge means far more than these. It has to be in some way unnatural, maybe by
the means adopted, or on account of the victim or partners involved. – O-A Pg 73 What are the types of
unnatural offences Archibold mentions? Both Twumasi (at page 294) and Prof Ofori Amankwah ( page
73) make mention of Archibold’s unnatural offences as;  Buggery which includes bestiality and sodomy
 Assault with intent to commit buggery or indecent assault Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 227  Gross indecency between males, and 
Other acts which constitute an outrage to public decency. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 228 INCEST “The term incest refers to sexual
intercourse between persons too closely related for legal marriage”- Twumasi Pg 294 Prof Ofori
Amankwah also defines incest on page 73 as “ . . . an illicit sex between persons falling within the
prohibited degree of consanguinity”. Provisions have been made under section 105 of Act 29. The
section provides; (1) A male of not less than sixteen years of age who has carnal knowledge of a female
whom he knows to be his grand-daughter, daughter, sister, mother or grandmother commits a criminal
offence and is liable conviction to a term of imprisonment of not less than three years and not more
than twenty-five years. (2) A female of not less than sixteen years of age who has carnal knowledge of a
male whom she knows to be her grand-son, son, brother, father or grandfather commits a criminal
offence and is liable on conviction to a term of imprisonment of not less than three years and not more
than twenty-five years. (3) A male of not less than sixteen years of age who permits a female whom he
knows to be his grandmother, mother, sister or daughter to have carnal knowledge of him with his
consent commits a criminal offence and is liable on conviction to a term of imprisonment of not less
than three years and not more than twenty-five years. (4) A female of not less than sixteen years of age
who permits a male whom she knows to be her grandfather, father, brother or son to have carnal
knowledge of her with her consent commits a criminal offence and is liable on conviction to a term of
imprisonment of not less than three years and not more than twenty-five years. Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 229 (5) In this section "sister"
includes half-sister, and "brother" includes half-brother, and for the purposes of this section an
expression importing a relationship between two applies although the relationship is not traced through
lawful wedlock. Twumasi, in writing on this topic wrote; . . . proof of knowledge is necessary . . . and for
the purposes of the offences any expression importing a relationship between two people shall be taken
to apply notwithstanding that the relationship is not traced through lawful wedlock . . . this provision is
obviously intended t preclude any defence based on the fact that the daughter or grand-daughter or
son, as the case may be, was not born out of a valid marriage. Therefore a daughter or son is regarded
as such notwithstanding the fact of her or his birth out of concubinage. The mischief intended by the
legislature in enacting this crime is the unsavoury situation of persons closely related by blood to have
carnal knowledge among themselves. – Twumasi Pg 295 Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 230 PROPERTY OFFENCES GENERAL
INTRODUCTION “The offences considered here are concerned with the protection of property; it
involves consideration of tangible assets and in some cases intangible assets like gas and electricity.
Property discussed here excludes copyright and intellectual property rights. Property offences are
covered under Part III of the Criminal Offences Act. Part III begins with general provisions affecting
offences involving dishonesty. As Twumasi has noted “these explanatory provisions do not add to the
sum total of the essential ingredients of the offence, but they show how the requirements of those
elements can be satisfactorily proved.”- Twumasi at 305. We will examine the general provisions first
and then the specific offences under this part of the Criminal Offences Act.”- Dr Elizabeth A.
Archampong in her Criminal Law Study Guide. DISHONEST APPROPRIATION Section 120 of Act 29 makes
provision for the offence of dishonest appropriation. Subsection 1 of the said section provides; (1) An
appropriation of a thing is dishonest a. if it is made with an intent to defraud, or b. if it is made by a
person without claim of right, and with a knowledge or belief that the appropriation is without the
consent of a person for whom that person is trustee or who is owner of the thing, or that the
appropriation would, if known to the other person, be without the consent the other person. The
offence is therefore explained under section 120(1) to include appropriation; Downloaded by Memuna
Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 231  With intent to defraud(section 16
which defines intent to defraud as “. . . an intent to cause, by means of the forgery, falsification, or other
unlawful act, a gain capable of being measured in money, or the possibility of that gain, to a person at
the expense or to the loss of any other person.” On the issue of intent to defraud, Twumasi wrote; If a
person appropriates a thing of which he is not the owner and he has no “intent to defraud” his act of
appropriating the thing cannot amount to stealing. Whether or not an intent to defraud would be
inferred depends on the facts of each case. An intent to defraud on the part of the accused is, therefore,
an essential requirement in the proof of a stealing case. What amount to an “intent to defraud” is
defined under the provision of section 16 of . . . (Act 29) . . . In other words, in a charge of stealing, there
must be evidence that the accused, when appropriating the thing, had an intent to cause some
economic loss to the owner thereof whether certain or uncertain. . . . Therefore if A collects an amount
of ¢50 (fifty cedis) on behalf of B, his employer, and A is at liberty to spend or dispose of the money he
has collected and he is only bound to account for any balance to B, A cannot be guilty of stealing the ¢50
if he spends all the money unless it can be inferred from the evidence that at the time of spending it A
intended to benefit personally from the spending to the detriment of B, his employer.- Twumasi Pg 314
 Without a claim of right in good faith (see section 15 where it states “A claim of right means a claim of
right made in good faith”). Twumasi, in his book again said; When a person appropriates a thing under a
claim of right he cannot be convicted for stealing the thing, provided that such claim of right is in
accordance with the provisions of section 15 of . . . (Act 29), which enacts that a claim of right must be
made in good faith. Evidence which tends to show or establish that the person charged did not have any
claim of right to appropriate the thing in respect of which he was charged is very essential in proving a
stealing charge against him.by implication, the prosecution cannot succeed in proving a charge of
stealing Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 232
against a person putting up a claim of right unless it can show that no such claim of right exists. The
accused must show that he appropriated the thing honestly believing that he had a claim of right to it. In
the absence of such evidence there cannot be a claim of right. A claim of right is inconsistent with
dishonesty within the definition of stealing under our law, because a claim of right means a claim of
right in good faith. A clear distinction therefore existed between dishonest appropriation and any
exercise of a claim of right. - Twumasi Pg 314 - 315 BREMPONG II V THE REPUBLIC FACTS; The appellant
was the Paramount Chief of the Atebubu Traditional Area and the president of the Atebubu Traditional
Council. In that capacity, he received a Mercedes Benz car for his use. The car broke down and was sent
for repairs. The fitter, to whom it was sent, dismantled the car after receiving money from the appellant
to repair it. He sold the parts and bolted to Nigeria. The appellant then sold what was left of the body for
¢5000 and pocketed the proceeds. When queried about the whereabout of the remains of the vehicle,
he denied having sold it. On these facts, he was convicted of stealing of the car by the Ashanti Regional
Tribunal. The conviction was affirmed on appeal to the Court of Appeal. He appealed further to the
Supreme Court. HELD; In allowing the appeal, the Supreme Court held, per Banford Addo JSC that;
Therefore even if the accused denied selling the car to the third prosecution witness, which the court
disbelieved, there was still the defence of claim of right open to him on the evidence. According to the
accused, he thought he was entitled to recoup himself from the proceeds of sale of the car, namely the
¢5,000 which was even far short of the actual money he had paid from his own pocket. Surely, this
evidence supporting a "claim of right made in a good faith" Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 233 cannot be ignored. . . He is also to convict
only when a case has been proved beyond reasonable doubt against an accused . . . . . . In a charge of
stealing it must be proved by the prosecution beyond reasonable doubt that the accused dishonestly
appropriated the thing alleged to have been stolen by him: see section 120 of Act 29 which explains
dishonest appropriation as follows: "An appropriation of a thing is dishonest if it is made with an intent
to defraud or if it is made by a person without claim of right" made in good faith. The "claim of right" in
this case is based on the evidence that the accused thought the vehicle had been abandoned in view of
exhibit 1 and that having spent his own money of about ¢ 16,000 he was entitled to the ¢5,000 to
recoup himself. If this is how the accused viewed his position, then· whether his belief was right or
wrong there would be no dishonest appropriation on his part and the prosecution would then have
failed to prove the requisite mens rea beyond reasonable doubt. In the circumstances of this case the
accused's belief cannot be unreasonable so as to negative "good faith" and even if he was wrong in his
assumption, it was the duty of the trial judge to consider the defence. . . After analyzing some case law,
she continues; In any case of stealing where there is no satisfactory proof of mens rea or intent to steal
or dishonestly appropriate property, no conviction would be recorded against an accused. Also where
there is a bona fide claim of right supported by evidence, dishonest intention would not have been
established and an accused would be entitled to an acquittal. In this present case, I am satisfied that
there was sufficient evidence of a "'claim of right" by the appellant to justify a finding that the appellant
entertained an honest belief in his claim that having already spent over ¢ 16,000 of his own money on
the repairs to the vehicle, he was, entitled to the proceeds of sale of the remaining rotten body, namely
the ¢5,000. If he believed in this claim, whether rightly or Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 234 wrongly, he would be entitled to an
acquittal. If the trial judge had adverted his mind to this legal defence available on the evidence and had
given it proper consideration as was his duty so to do, he would have come to the conclusion that the
appellant was entitled to an acquittal. . .  Without the owner’s consent AMPAH AND ANOTHER V THE
REPUBLIC FACTS; The appellants were executive director and accountant respectively of the Chamber of
Mines. The second appellant, either together with the first appellant or one C.B., had authority to sign
cheques for and on behalf of the Chamber. Between 1 July 1971 and April 1973, the two appellants, to
the exclusion of C.B., exercised their right to sign cheques for and on behalf of the Chamber and were
able thereby to convert various sums of money belonging to the Chamber for their own use. The
appellants were consequently charged with twenty counts of stealing contrary to section 124 (1) of Act
29 and convicted by the circuit court. On appeal to the High Court, the court had to determine, inter
alia, whether lack of consent of the real owner to an appropriation had to be proved always by direct
and positive oral evidence from the owner where the said owner was known and available and whether
in the present case absence of consent of the Chamber of Mines was proved. HELD; Abban J in
dismissing the appeal, held, as per the head notes; (1) it was not always necessary to prove absence of
consent of an identified owner by oral evidence to that effect from the owner or his representative.
Whether an identified owner did or did not consent could also be proved by evidence as to his attitude
and conduct after he had become aware of the appropriation or even by an admission made by the
accused. In his statement to the police (which was admitted in evidence) the first appellant, in no
uncertain terms, indicated that the Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 235 Chamber never in fact consented to the appropriation. From the evidence
it could correctly be inferred that the measures taken by the Chamber, after they had become aware of
the appropriation, were consistent with the conduct of an owner who had not consented to or
authorised [p.404] the appropriation. The trial judge was right in holding that even though the owner
did not appear in court to give evidence of absence of consent, there was ample evidence which clearly
showed that the owner, in fact, never consented to the appropriation. (2) Section 120 (1) of Act 29
contemplated two kinds or types of dishonest appropriation: (a) where the appropriation was made
with intent to defraud and (b) where the appropriation was made without a claim of right and without
the consent of the owner. Thus proof of either of these could constitute dishonest appropriation, and
any attempt to convert the word “or” in section 120 (1) into "and" to necessitate proof of both would be
going to the extreme limit of interpretation. Proof that an accused person appropriated the subject-
matter of the charge with intent to defraud would by itself amount to dishonest appropriation and proof
of lack of consent of the owner would be superfluous. (3) A man’s intentions could be proved from
surrounding circumstances including of course the presumption of law that a man was deemed, prima
facie, to intend the probable and natural consequences of his acts. In the instant case the appellants’
intention to defraud could be gathered from the method which they adopted in converting the funds to
their own use and the scrupulous care which they took to conceal every appropriation. The only
reasonable conclusion one could come to, having regard to the circumstances of the whole case was
that the appellants employed those deceitful and carefully designated devices in order to induce the
Chamber to part with those funds. The intent to defraud could therefore be properly and rightfully
inferred from their conduct. It must be noted that it will be desirable to read the full judgment of Abban
J, as he then was, in the in the Ampah case. He discusses, in his judgment, the law on dishonest
appropriation Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359
236 especially section 120(1) which actually describes the offence. To Abban J, dishonest appropriation
as contained in Act 29 can either be an appropriation made with intent to defraud or, “an appropriation
without a claim of right and without the consent of the owner is just an alternative definition which the
section gives to the term "dishonest appropriation”. Proof of an appropriation with intent to defraud or
of an appropriation without the consent of the owner, either one of them, can constitute dishonest
appropriation. So that proof that an accused person appropriated the subject-matter of the charge with
intent to defraud will by itself amount to dishonest appropriation and in such a case further proof of lack
of consent of the owner to the appropriation will be absolutely unnecessary. . .” It must be noted that if
either of these requirements is satisfied, then the offence of dishonest appropriation has been made
out. The learned judge goes on in his judgment to show how ‘intent to defraud’ can be made out. He
said “I should emphasise that the issue of intent to defraud is a subjective one. It is not a question of
what a reasonable man in the position of the appellants would have intended, but rather what the
appellants intended and this could be inferred from their behaviour. As a course of human conduct is
not usually instinctive, it is difficult to dissociate the conduct from the mentality which inspires it. Thus,
in most cases where it is necessary to prove a man’s intention, evidence of overt acts will be considered
sufficient. In other words, the intention with which a man did an act can usually be determined by
inference from surrounding circumstances, including, of course, the presumption of law that a man is
deemed, prima facie, to intend the probable and natural consequences of his deliberate acts. In Andoh
v. The Republic, Court of Appeal . . . Anin J.A . . . said: "The learned trial judge rightly drew attention to
the line of cross-examination adopted by the accused persons which tended to support the second
prosecution witness's claim that the C.P.P. did not do any [p.414] agency work and that the said total
represented financial assistance to C.P.P.; . . . He then attempted to discover the reasons for the
channelling of these sums meant for the C.P.P. through a limited liability company ostensibly set up for
trading purposes; and why the original account was re-designated to Sub-Agency Commission Account.
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 237 The
presumption is that a person intends the natural consequences of his acts. This presumption is
contained in section 11 (3) of Act 29; and it may be rebutted by evidence showing that the person did
not in fact intend to cause or contribute to the event in question. In a case like the one before us, the
intention with which the principal offender the second prosecution witness and the aiders and abettors
(appellants herein) did the act complained of may be inferred from the surrounding circumstances of
each particular set of facts." Section 120(2) of provides a situation where one may be liable for the
offence even when the owner of the appropriated item cannot be ascertained. The subsection provides;
It is not necessary, in order to constitute a dishonest appropriation of a thing, that the accused person
should know who the owner of the thing is, but it suffices if the accused person has reason to know or
believe that any other person, whether certain or uncertain, is interested in or entitled to, the thing
whether as owner in that person’s right, or by operation of law, or in any other manner; and a person so
interested in or entitled to a thing is an owner of that thing for the purposes of the provisions of this Act
relating to criminal misappropriation and frauds. See LUCIEN V THE REPUBLIC where some time after the
resignation of the appellant as a school teacher, his premises were searched by the police. Some books,
a wall clock and other articles belonging to various persons were found in his possession. He was
therefore prosecuted before a Sogakofe district court on four counts of stealing some of those books
and articles. He was convicted and given concurrent sentences of two years' imprisonment. Prior to this
conviction, he had been convicted by the same district court of offences arising out of the same
transaction and involving some of the items found on him and on that occasion, he was sentenced to
three months' imprisonment. After those two separate trials, the appellant was for the third time,
brought before another district court on two counts of stealing some of the articles found on him. The
trial magistrate failed to consider the appellant's defence to the second count, i.e. that the books, the
subject-matter of that count, were given him by the complainant. The appellant was, admittedly, not the
owner of the stolen articles specified in the first count but there was evidence that ownership thereof
was in dispute, i.e. being claimed by two other Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 238 persons. The appellant was convicted
and again given two years' concurrent sentences. On appeal against conviction and sentence, counsel
for the appellant contended, inter alia, that the conviction in respect of the first count, was, wrong
because ownership of the articles, the subjectmatter of the charge, was in doubt. In allowing the appeal
against the sentence and also allowing in part the appeal against conviction, Taylor J said; The first count
raises problems of extreme importance. A careful reading of the charge in that count is very illuminating
for it shows that the prosecution have studiously refrained from laying the ownership of the properties
therein in any person or body. The reason for this as appears from the evidence is because the
ownership of the items is in dispute. They are being claimed by two persons. Each person claiming that
the items lawfully belonged to him. The illustration to section 120 (2) of Act 29 reads: "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." (The emphasis is mine.) I would have thought that by virtue of this
illustration a thing the ownership of which is in dispute or in doubt can properly be the subject-matter of
a stealing count. . . . . . I agree that in Republic v. Halm, Court of Appeal (full bench) set out to state the
obvious and was not stating a new principle . . . In this respect I cannot do better than to re-echo the
views of the court delivered by Amissah J.A. in Republic v. Halm where he said: . . . For the offence of
stealing to be constituted, therefore, the relations, act and intention to be proved in connection with
'the thing' are: (i) that the person charged must not be the owner of it; (ii) that he must have
appropriated it; and (iii) that the appropriation must have been dishonest. These are the basic
ingredients requiring proof in a charge of stealing." Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 239 I will respectfully adopt the views
expressed above and add that the three ingredients itemised by Amissah J.A. are in fact not merely the
basic ingredients requiring proof, they are the only ingredients and nothing else must be proved in a
stealing charge. It follows from this that I do not subscribe to the view that "there are cases in which
failure to prove ownership would be fatal." In my view on the Amissah analysis as long as the three
ingredients have been proved it becomes unnecessary to prove ownership and there can be no single
instance where failure to prove ownership will be fatal after the three ingredients have been
established. See also DRAMANU V THE REPUBLIC where The appellant, a secretary of the Gonja
Traditional Council was ordered by the paramount chief of the area, the Yabonwura to sell two stray
cattle, which by custom had been brought to the chief. An amount of ¢200.00 was realised from the
sale, and according to the prosecution, the appellant failed to pay the sum into the traditional council's
coffers. The appellant was therefore charged with stealing. In his defence he stated that after the sale he
gave the ¢200.00 to the chief, who, as the owner, gave it back to him for safe keeping. But later, on the
instructions of the chief he used the money in paying a debt owed by the chief’s son. Even though the
prosecution alleged that the money belonged to the traditional council, no evidence was adduced in
proof of the fact that the council had lost anything. The trial magistrate found the appellant guilty of
stealing and convicted him. In allowing the appeal, the court, per Koranteng-Addow J, held that although
the general rule is that ownership need not be proved, where the defence alleges consent on the part of
one of the disputed owners, then proof of ownership becomes material, since consent to appropriation
by owner negatives stealing. In satisfying the question whether there was consent or not in a particular
case, Act 29 provides that genuine consent may be vitiated by any of the circumstances contemplated
under Part I with respect to consent. For this reason, subsection 3 of section 120 provides; Downloaded
by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 240 The general provisions
of Part I with respect to consent, and with respect to the avoidance thereof by force, duress, incapacity,
and otherwise, apply for the purposes of this section, except as is hereafter in this chapter expressly
mentioned with respect to deceit. PART OWNERS A person who is an owner of or interested in a thing
can be convicted of stealing or of fraudulent breaches of trust in respect of the thing. - Lecture guide Pg
32.For this reason, section 121 provides; A person who is an owner of or interested in a thing, or in the
amount, value, or proceeds of that thing, jointly or in common with another person or as a member of a
company, or who is owner of a thing as a trustee and also as beneficiary of that thing whether jointly or
in common with another person or for a company of which that person is a member, can be convicted
of stealing or of fraudulent breach of trust in respect of the thing; and a person can be a clerk, servant,
or officer of a company of which he is a member. See R V MAYWHORT where the defendant was an
executor and trustee to his mother’s will for himself and his brother. He admitted at his trial, that he had
converted to his own use, assets to which his brother was entitled. It was held that on the evidence he
had committed the crime of fraudulent conversion by a trustee. However, he was discharged on
technical grounds. “Part owners can be guilty of stealing a common asset collectively owned by them.
Where one partner is genuinely using the property, he cannot be accused of stealing. However, if he
were to sell of the property without accounting for the proceeds to the other co-owner(s) he may be
guilty of stealing.”- Prof. Ofori Amankwah Pg 78 Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 241 ACT OF APPROPRIATION The act of
appropriation is generally provided under section 122 of Act 29. Subsection 1 provides; (1) An
appropriation of a thing by a trustee means a dealing with the thing by the trustee, with the intent of
depriving a beneficiary of the benefit of the right or interest in the thing, or in its value or proceeds, or a
part of that thing. (2) An appropriation of a thing in any other case means any moving, taking, obtaining,
carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit
of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any
part thereof. Twumasi, on the issue of appropriation wrote To amount to appropriation, it is enough if
there be evidence that the accused caused others to take the thing and there was intent on the part of
the accused to deprive the owner of the benefit of his ownership or of the benefit of his right or interest
in the thing. In the absence of such intention, there cannot be appropriation. . . To summarise, we may
say that there cannot be appropriation within the meaning of section 122 (2) . . . unless (1) there is
evidence that the accused, not being the owner of the thing stolen, took or removed or obtained the
thing or did some act in respect of the thing; (2) that the act whether it consisted of moving, taking,
obtaining or dealing with the thing in any other manner was intended by the accused to deprive some
person of the benefit of his ownership or the benefit of his rights in its value or proceeds or any part
thereof; the act and the intent together constitute the appropriation and (3) the intent need not be to
deprive any person permanently of his benefit of ownership, etc. it is enough if the intent is to deprive
some person temporarily of his benefit or right or interest in the thing appropriated. Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 242 CASES In ANTWI V THE
REPUBLIC where when the first appellant was in general charge of a government office, the office
became understaffed. The first appellant therefore arranged that the second appellant and the third
accused, who were employed under him as clerical assistants, should do the outstanding typing in their
leisure time. In order to pay for this extra work, the first accused added to the list of employees a
fictitious temporary typist named E. K. Adu and caused this name to be included in the month's payment
voucher which was duly passed. When the money due to "E. K. Adu" arrived the second appellant signed
for it and the first appellant paid to the second appellant and the third accused their entitlement, and
returned the rest to the government chest. On these facts, all three were charged with conspiracy to
steal, forgery and stealing. The two appellants were convicted on all counts; the third accused was
acquitted and discharged on the ground that although he received his share of the money he was on
leave when the voucher was prepared. In allowing the appeal, Koranteng Addow said; Under our law a
person steals if he dishonestly appropriates a thing of which he is not the owner. This is the explanation
of section 124 made in section 125 of the Criminal Code, 1960. Appropriation is defined in section
122. . . In my view, the operative portion of the subsection is "with intent that some person may be
deprived of the benefit of his ownership." Looking at the facts one has to find out whether the accused
persons deprived the owner, that is to say, the government, of the benefit of its ownership in the money
allegedly stolen. The evidence is that the second and third accused persons did work for the government
and they were paid with money belonging to the government. In what sense was the government
deprived of the ownership of the money? In no part of the evidence is it found that the second and third
accused did not do the work for which they were paid; nor did the government refuse to accept the
benefit of the work they did. In my Downloaded by Memuna Saani (memunasaani1995@gmail.com)
lOMoARcPSD|14179359 243 view there was no appropriation at all. And this relieves us of the burden of
considering the question as to whether the appropriation was dishonest. I would therefore hold that the
very first ingredient of the crime of stealing is missing and there could therefore be no stealing. I would
therefore allow the appeal on that count. See also ANING V THE REPUBLIC where the appellant, the
officer commanding B company, and the second accused, the operations officer with the Ghana
contingent to the United Nations Peace Keeping Force in the Lebanon, were arraigned before a General
Court-Martial charged with conspiracy to steal and stealing 150 roofing sheets belonging to the Ghana
Armed Forces. The case for the prosecution was that contrary to the service operational procedure that
requisitions were to be made by the operations officer through the logistics officer who would in turn
instruct the engineer officer to procure them from the United Nations Forces Headquarters at Nakura in
the Lebanon, the second accused made a request direct to the engineer officer who went with the
appellant to requisition for and take delivery of the roofing sheets. The roofing sheets were given into
the custody of the appellant. Although as the officer commanding B company he had no duties to
perform in C company's area of operations, yet on the instruction of the engineer officer but in disregard
of the laid down procedures, he took them to the area of operations of C company instead of the Ghana
Contingent Headquarters and personally helped his driver to unload the consignment within sight of a C
company observation post. Even though he then visited the platoon commander of C company he failed
to inform him about the deposit of the sheets in his area even though he had told his driver that he was
going to do so. He also did not inform battalion headquarters of where he had placed the sheets. The
next day the sheets were short by fifteen. The appellant when subsequently confronted by the
commanding officer of the Ghana contingent and his second-in-command denied all knowledge of the
roofing sheets. Following the report of a board of inquiry set up to go into the matter the appellant and
the second accused were charged before the court-martial. They were convicted and sentenced to be
dismissed from the Armed Forces. On appeal against that decision, the appellant argued, inter alia, that
since the consignment never left the custody or area of operations of the Ghana contingent, the
appellant, could not be guilty of the offence of stealing. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359 244 On dismissing the appeal, the court held
that on the evidence, the appellant intended to steal the roofing sheets and since the law in Ghana did
not require a “carrying away”, before appropriation could be established, he was guilty of stealing the
roofing sheets. Amuah Sekyi J (as he then was) said; The charge did not specify the number of roofing
sheets alleged to have been stolen. However, the proceedings show that the trial related to the whole
consignment of 150 sheets. With this in mind, it has been argued on this appeal that the consignment
never left the custody or area of operations of the Ghana contingent and therefore the appellant could
not be guilty of the offence of stealing. If counsel is right, then no one can be convicted of stealing
property of the Ghana contingent if he is found with the goods in its area of operations. The truth of the
matter, however, is that even in those jurisdictions where a "carrying away" is an essential part of the
offence of larceny it has been held that a bare removal from the place in which the thief found the
goods, though he does not make off with them, is sufficient. What Constitutes Intent to Deprive Section
122(3) provides for what constitutes intent to deprive. The said section provides thus; An intent to
deprive can be constituted by an intent to appropriate the thing temporarily or for a particular use, if
the intent is so to use or deal with the thing that it probably will be destroyed, or become useless or
greatly injured or depreciated, or to restore it to the owner only by way of sale or exchange, or for
reward, or in substitution for another thing to which that owner is otherwise entitled, or if it is pledged
or pawned. See ATTORNEY GENERAL’S REFERENCE (No. 1 OF 1983) where the respondent’s employer
credited her bank account with £74 more than she was entitled to receive. When she discovered the
error, she did not return the excess. Indeed, there was evidence that she decided not to do anything
about it. She was prosecuted for stealing the money. At the trial there was no evidence that she
withdrew the money that had been wrongly credited to her account. However, Downloaded by
Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 245 before the prosecution
could conclude its case, the judge stooped the case and directed the jury to acquit her. The Attorney
General made a reference to the Court of Appeal. The court held that the respondent in forming the
intention not to do anything about the excess payment, or to inform her employer about the error,
showed a sufficient intention to permanently deprive the employer of that money. The case should have
been allowed to continue for the prosecution to establish an appropriation of the money, and that it
was done with dishonest intent in order to establish the offence of stealing. Immaterial Aspects of which
a Thing is Appropriated Section 122(4) provides for the above subject matter. The section provides; It is
immaterial whether the act by which a thing is taken, obtained, or dealt with be or be not a trespass or a
conversion, or be or be not in any manner unlawful other than by reason of its being done with a
purpose of dishonest appropriation; and it is immaterial whether, before or at the time of doing such
act, the accused person had or had not a possession, custody, or control of the thing. This means that
whether the means used in obtaining the thing is lawful or not or even whether it was in ones custody
or not, once it is done with intent to dishonestly appropriate, then the offence is made out. See SAM V
THE STATE where on 8 January 1967, at twelve noon, one Kweku Arhin who lives at Amosima heard an
unusual noise in the cemetery. He went there to find what was happening and he met the present
appellant by a [p.286] dug-up grave. As a result of what the appellant told him, the other persons were
arrested. An exhumation order was made and it was found that the skull of the buried body of Ama
Akowa was missing. A search was conducted but the skull was not found. The appellant admitted having
stolen it. He was convicted by a district magistrate grade II, who observed that " . . . the removal of a
dead body or part of it which has been interred is a thing which has ownership vested in it. . ." On appeal
to the High Court it was contended that the conviction could not stand because a human skull was
incapable of being Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|
14179359 246 stolen; there was therefore no criminal offence before the court to which the accused
could have pleaded. By section 123 (1) of Act 29 the crime “of stealing . . . can be committed in respect
of anything, whether living or dead, . . . and whether the thing be a mineral . . . or of any other nature.”
And by section 122 (2) dishonest appropriation included depriving a person of the benefit of his "interest
in the thing." Further under section 27 (7) of the Registration of Births and Deaths Act, 1965 (Act 301),
no person could remove a corpse from a grave without the permission of the Minister. The court, per
Archer J as he then was, held (per holding 1); sections 122 (2) and 123 of Act 29 were couched in such
wide terms as to make a human skull capable of being stolen because the relatives of the deceased were
"interested" in the corpse of which the skull formed part. Further, since no person could remove a
corpse from a grave without the permission of the Minister under Act 301, section 27 (7), it followed
that the local authority was interested because it was buried in their ground. There was abundant
evidence to show that in Ghana, relatives did not abandon their dead. A corpse or any part of it was
therefore capable of being stolen. NOTE It must be noted that proof of ownership or value of a thing in
property offence is not necessary. For this reason, section 123(3) provides; In proceedings in respect of a
criminal offence mentioned in subsection (1), it is not necessary to prove ownership or value
Downloaded by Memuna Saani (memunasaani1995@gmail.com) lOMoARcPSD|14179359 247 STEALING
Stealing is a property offence provided under the Criminal Offences Act under sections 124 – 127. The
punishment for stealing is provided under section 124 of Act 29. The section provides; (1) A person who
steals commits a second degree felony. (2) Where the Court which finds a person guilty of stealing is
satisfied that on not less than two previous occasions the accused was found guilty of stealing, the Court
shall order that the whole or a part of a term of imprisonment imposed by it shall be spent in productive
hard labour. (3) A person in respect of whom the Court makes an order under subsection (2) shall be
disqualified for election to parliament or a District Assembly within the meaning of the Local
Government Act, 1993 (Act 462), for a period not exceeding five years. (4) For the purposes of this
section, "productive hard labour" means labour in a State Farm or State Factory or any other public co-
operative or collective enterprise specified by the Minister. "previous occasions" referred to in
subsection (2) may include occasions which occurred prior to the commencement of this Act. Stealing
has been defined under section 125 of Act 29 which provides; A person steals who dishonestly
appropriates a thing of which he is not the owner. Downloaded by Memuna Saani
(memunasaani1995@gmail.com) lOMoARcPSD|14179359