Criminal Law NOTES

FACULTY OF LAW
CRIMINAL LAW NOTES

FOR FIRST AND SECOND SEMISTERS
2011 - 2012
CRIMINAL LAW NOTES
CONTENTS
GENERAL INFORMATION
REFERENCES
TABLE OF GHANAIAN CASES
TABLE OF FOREIGN CASES
PART I
GENERAL INTRODUCTION
WHAT IS CRIME
TYPES OR CLASSIFICATION OF OFFENCES
BURDEN OF PROOF
FUNCTION OF CRIMINAL LAW
DISTINCTION BETWEEN CRIMES AND CIVIL WRONG
MORALITY AND CRIMINAL LAW
THE PRINCIPLE OF LEGALITY
ORGANS FOR ADMINISTRATION OF CRIMINAL JUSTICE
PURNISHMENT
2
PRINCIPLE OR ELEMENTS OF CRIMINAL LIABILITY
ACTUS REUS (THE PHYSICAL ELEMENT)
MENS REA (THE MENTAL ELEMENT)
EXCEPTIONS TO THE RULE OF CRIMINAL LIABILITY
OFFENCES AGAINST THE PERSON.
ASSAULT AND BATTERY
ASSAULT WITHOUT BATTERY
IMPRISONMENT
HOMICIDE (1): THE COMMON AREAS
THE ACTUS REUS OF HOMICIDE
CAUSATION
HOMICIDE (II): MURDER
ACTUS REUS OF MURDER
MENS REA OF MURDER
WHO CAN COMMIT MURDER
WHO MAY BE A VICTIM OF MURDER
3
HOMICIDE (III): MANSLAUGHTER
VOLUNTARY MANSLAUGHTER
PART II
INCHOATE OFFENCES
INTRODUCTION
ATTEMPTS
PREPARATION
CONSPIRACY
ASSESSORIAL LIABILITY (ABETMENT)
OFFENCES AGAINST THE PERSON
SUICIDE
ABORTION
KIDNAPPING
ABDUCTION
CHILD STEALING
SEXUAL OFFENCES
RAPE
DEFILEMENT
4
CARNAL AND UNATURAL CARNAL KNOWLEDGE OF A PERSON WITH MENTAL
INCAPACITY
INDECENT ASSAULT
UNNATURAL CARNAL KNOWLEDGE
INCEST
PROPERTY OFFENCES
DISHONEST APPROPRIATION
PART OWNERS
ACT OF APPROPRIATION
STEALING
5
GENERAL INFORMATION
This is an almost complete notes on Criminal Law II (LAW 288) and this notes was done
following the Criminal Law Study Guide (for first and second semesters) for LL.B, years 1 (part
time) and 2 (full time undergraduates) by Dr. Elizabeth A. Archampong. It also contains the
briefs and necessary portions of some of the cases stated in the study guides. It also has the
necessary sections from the Criminal Offences Act inserted. THIS CANNOT BE SAID TO
CONTAIN ALL WHAT IS NEEDED FOR THE COURSE, because, the lecturer may add
certain materials necessary and it is always necessary as and when the reference is given in the
notes, for one to look it up. ATTENDANCE TO LECTURES is also very important in order
to have a good understanding of the course. This note, being the writer’s personal notes, is not
intended to be published.
COMPILER.
6
REFERENCES
 Mensah Bonsu (Prof), THE GENERAL PART OF CRIMINAL LAW – A GHANAIAN

CASEBOOK VOL. 2
 Mensah Bonsu (Prof), ANNOTATED CRIMINAL OFFENCES ACT OF GHANA
 P. K. Twumasi, CRIMINAL LAW IN GHANA
 E. H. Ofori Amankwah (Prof), OUTLINE OF CRIMINAL LAW LECTURES
 Elizabeth A. Archampong, CRIMINAL LAW II STUDY GUIDE
 Mensa-Bonsu, ‘COMPLICITY UNDER THE CRIMINAL CODE OF GHANA’ [1991-
92] VOL. XVIII RGL 193—219
 THE GHANA LAW REPORTS
TABLE OF GHANAIAN CASES
 KWASHIE V THE REPUBLIC (1971) 1 GLR 488, CA

 SENE V THE REPUBLIC (1977) 1 GLR 434, CA
 R V QUAYE (JACK TOLLER) (1954) 14 WACA 488
 R V GYAMFI (1960) GLR 45, CA
 AMETEWEE V THE STATE (1964) GLR 551
 REPUBLIC V ADEKURA (1984-86) GLR 113
 AKORFUL V THE STATE (1963) 2 GLR 371
 REPUBLIC V ADEKURA (1984-86) 2 GLR 345, CA
 R V MENSAH (1948) 12 WACA 346,
 R V KWAKU AWONU (1946) 12 WACA 95,
 BRUCE-KONADU V THE REPUBLIC (1967) GLR 611
 ASANTE V THE REPUBLIC
 TWUM V THE REPUBLIC
 R V NWAOKE (1939) 5 WACA 120
 ATTORNEY-GENERAL’S REFERENCE (NO 3 OF 1994) (1996) QB 581, CA.
 DOGO DAGARTI v. THE STATE [1964] GLR 653-655
7
 R V BURGESS (1991) 2 WLR 1206 CA
 R. v. MOSHIE [1959] GLR 343-347
 ABUGIRI FRAFRA ALIAS PINI FRAFRA v THE REPUBLIC [1974] 2 GLR 447-452
 CHUTUWA V R
 REX V OWAREY
 DONKOR V THE REPUBLIC;
 MANU v. THE STATE [1965] GLR 149-155
 BOATENG II V THE REPUBLIC
 KORANTENG V THE REPUBLIC
 LATI V THE STATE
 DUA v. THE STATE [1963] 2 GLR 385-390
 REPUBLIC v. DARKO [1971] 2 GLR 227-230
 ILLIASU AND ANOTHER v. THE REPUBLIC [1968] GLR 742-748
 BLAY v. THE REPUBLIC [1968] GLR 1040-1050
 AMUKYI v. THE REPUBLIC [1982-83] GLR 1010-1016
 AZAMETSI AND OTHERS v. THE REPUBLIC [1974] 1 GLR 228-246
 STATE v. OTCHERE AND OTHERS [1963] 2 GLR 463-531
 REPUBLIC v. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH AND
ANOTHER (NO. 2) [1973] 2 GLR 445-455
 TEYE ALIAS BARDJO AND OTHERS v. THE REPUBLIC [1974] 2 GLR 438-445
 BOAHENE AND ANOTHER v. THE STATE [1965] GLR 279-296
 REPUBLIC v. TEMA DISTRICT MAGISTRATE GRADE I; EX PARTE AKOTIAH
[1979] GLR 315-319
 IDDI v. THE REPUBLIC [1980] GLR 623–629
 ARHIN alias PALL MALL v THE REPUBLIC [1995-96] GLR 190 – 200
 COP V SARPEI AND NYAMEKYE [1961] 2 GLR 756, SC2
 R V KOFI ANTWI 1 WEST AFRICAN LAW REPORT
 KAMBEY AND OTHERS V THE REPUBLIC [1989-90] GLR 24, CA
 LOGAN & LAVERICK V THE REPUBLIC [2007-2008] SC GLR 76
8
 OBENG v. THE REPUBLIC [1971] 2 GLR 107-127
 DENYO v. THE STATE [1966] GLR 474-475
 REGINA v. DJOMOH [1960] GLR 193-194
 DONKOH V THE REPUBLIC
 REPUBLIC V YEBOAH
 BREMPONG II V THE REPUBLIC
 AMPAH AND ANOTHER V THE REPUBLIC
 LUCIEN V THE REPUBLIC
 DRAMANU V THE REPUBLIC
 ANTWI V THE REPUBLIC
 ANING V THE REPUBLIC
 SAM V THE STATE
TABLE OF FOREIGN CASES
 R V MACDONALD (1904) ST REP Q 151

 R V PITTWOOD
 R V LOWE (1850) 3 C & K 123
 R V STEANE (1947) 1 KB 997
 R V GRUNWALD (1963) 1 QB 935
 DPP V SMITH (1960) 3 ALL ER 161, HL
 R V HARE (1934-39) 30 COX CC 64
 IMPRESS V REES (1971) 2 ALL ER 357
 R V MICHAEL
 RV SMITH (1959) 2QB 35
 R V BLAUE (1975) 3 ALL ER 446
 R V HOLAND (1841) 2 MOOD & ROB 351; 174 ER 313.
 R V MALCHAREK (1981) 1 WLR 690.
 R V KINGSTON (1994) QB 81, CA
9
 REG V ALLEN (1988) Crim LR 698, CA
 R V DYSON (1908) 2 KB 545
 R V ROOK [1993] 2 All ER 955, CA
 R V CROFT [1944] KB 295
 CHANG WING-SIU v R [1985] AC 168
 R V SMITH (WESLEY) [1963] 1 WLR 1200, CCA
 R V CREAMER [1966] 1 QB 72, CCA
 R V DUNNINGTON [1984] 1 All ER 676
 R V CLARKSON [1971] 3 All ER 344
 R V CONEY [1882] 8 QBD 534
 NATIONAL COAL BOARD V GAMBLE [1959] 1 QB 11
 THAMBIAH V R [1966] AC 37
 S V NKOSIYANA [1966] 4 SA 655
 SHAW V DPP [1962] AC 220
 R V MAWJI [1957] AC 126
 R V SHIVPURI [1987] AC 1, HL
 HAUGHTON V SMITH [1974] 58 Cr App Rep 198
 KYPRIANOU V REYNOLDS [1969] CLR 656
 PEOPLE V RIZZO [1927] NY 334
 R V ROBINSON [1915] 2 KB 342
 DAVY V LEE [1967] 2 All ER 423
 R V GEORGE 3 WACA 32
 R V ASSISTANT RECORDER OF KINGSTON-UPON-HULL; EX PARTE MORGAN
[1969] 2 QB 58
 R V CALHAEM [1985] 2 WLR 826, CA
 R V BUTTON [1990] 2 QB 597
 McSHANE V R [1978] 66 CAR 97
 R V HOLLIS AND ANOTHER [1873] 28 LT 455
 R V TITLEY [1877-82] 14 COX CC 502
10
 R V SMITH (JOHN) [1974] 1 All ER 376
 R V BOURNE [1938] 3 All ER 615
 R V D [1984] 3 WLR 186
 R V REID [1972] 2 All ER 1350
 R V TIMMINS [1858-61] 8 COX CC 401
 R V ROBINS [1884] 174 ER 890
 R V WHITE [1871] LR 1 CCR; 12 COX CC 83
 QUEEN V PAPADIMITROPULOUS
 KAITAMAKYI V R
 R V FLATTERY
 R V LINEKAR
 R V MARSDEN
 R V PRESSY
 ALAWUSA V ODUSOTE
 BOLDUC & BIRD V QUEEN
 R V SARGEANT
 DPP V ROGERS
 R V MASON
 ATTORNEY GENERAL’S REFERENCE NO. 19 OF 1992
 R V ALLEN
 R V MAYWHORT
 ATTORNEY GENERAL’S REFERENCE (No. 1 OF 1983)
11
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.
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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
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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.
15
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.
16
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.
17
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.
18
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.
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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;
20
 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 peop le 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 THE
21
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
22
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.
23
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.
24
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;
25
(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
26
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.
27
(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;
28
(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 the
29
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
30
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
31
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 a
32
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
33
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.
34
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 wherethe 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.
35
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 wherethe

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,
36
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
37
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;
38
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;
39
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 wherethe 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
40
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 wherethe 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 inures 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
41
consequences of the act would be such as occurred. See the case of AKORFUL V THE
STATE (1963) 2 GLR 371 wherethe 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;
42
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.
43
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".
44
(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
45
(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,
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
46
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,
47
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.
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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.
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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.
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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
51
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.
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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;
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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. Sub-
section. 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.
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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.
55
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.
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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, sub-
section (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”.
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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
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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.
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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?
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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
61
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
62
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
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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:
64
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 healthy-

looking 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
65
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
66
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;
67
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.
68
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
69
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.
70
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
71
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.
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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.
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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.
74
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
75
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,
76
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;
77
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.
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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
79
presumed 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
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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
81
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
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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.
83
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.
84
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
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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.
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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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harm to 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. . .
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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
89
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
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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.
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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.
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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.
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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
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(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
95
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
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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.
97
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.
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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
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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.
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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.
101
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.
102
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.
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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.
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...
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;
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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
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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.
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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
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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, Sarkodee-
Adoo 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
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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
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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;
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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.
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Unlawful Fights

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;
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(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
114
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,
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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

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;
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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.
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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.
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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
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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;
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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
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 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.
122
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;
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(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;
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(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)
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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. . .
126
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
127
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.
128
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
129
(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,
130
“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;

131
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
132
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.
133
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.
134
 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
135
 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.
136
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.
137
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.
138
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”
139
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
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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
141
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
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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
143
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
144
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
145
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
146
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
147
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?"’
148
 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;
149
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 hand-
grenade 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
150
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.
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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.
152
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.
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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 co-
adventurer 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
154
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
155
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.
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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”
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 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
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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.
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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,
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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;
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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
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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
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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
165
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;
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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.
167
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.
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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.
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(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.
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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;
171
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,
172
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,
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(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
174
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
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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
176
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.
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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.
178
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.
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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.
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 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
181
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
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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.
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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.
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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)
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(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;
186
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
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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.
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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
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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
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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.
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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
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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
193
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 two-
year-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;
194
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 person-
a. 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;
195
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 child-

stealing 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
196
See R V ROBINS where the accused went to the house of a fifteen-year-
old 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
197
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.
198
2. CHILD STEALING
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.
199
‘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
200
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
201
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
202
CHILD ABONDONMENT
Section 96 of the Criminal Offences Act deals with the criminal offence of child abandonment.
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
203
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.
204
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.
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.
205
“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
206
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.
207
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
208
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.
209
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.
210
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.
211
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
212
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;
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(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
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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
215
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
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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
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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.
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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.
219
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
220
inability to distinguish between right and wrong, or to control the will or see the consequences of
an act.”
221
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.
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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
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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.
224
UNNATURAL CARNAL KNOWLEDGE
The offence of unnatural carnal knowledge is generally provided under section 104 Act 29. Sub-
section 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.
225
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
226
 Gross indecency between males, and
 Other acts which constitute an outrage to public decency.
227
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.
228
(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
229
PROPERTY OFFENCES
“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;

230
 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
231
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"
232
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
233
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
234
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
235
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.
236
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
237
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 subject-
matter 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."
238
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;
239
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
240
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.
241
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
242
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.
243
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,
244
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
245
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.
In proceedings in respect of a criminal offence mentioned in subsection (1), it is not

necessary to prove ownership or value
246
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.
247

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FACULTY OF LAW

CRIMINAL LAW NOTES

TABLE OF GHANAIAN CASES

TABLE OF FOREIGN CASES

TYPES OR CLASSIFICATION OF OFFENCES

FUNCTION OF CRIMINAL LAW

DISTINCTION BETWEEN CRIMES AND CIVIL WRONG

MORALITY AND CRIMINAL LAW

THE PRINCIPLE OF LEGALITY

ORGANS FOR ADMINISTRATION OF CRIMINAL JUSTICE

ACTUS REUS (THE PHYSICAL ELEMENT)

MENS REA (THE MENTAL ELEMENT)

EXCEPTIONS TO THE RULE OF CRIMINAL LIABILITY

OFFENCES AGAINST THE PERSON.

ASSAULT AND BATTERY

ASSAULT WITHOUT BATTERY

HOMICIDE (1): THE COMMON AREAS

THE ACTUS REUS OF HOMICIDE

HOMICIDE (II): MURDER

ACTUS REUS OF MURDER

MENS REA OF MURDER

WHO CAN COMMIT MURDER

WHO MAY BE A VICTIM OF MURDER

ASSESSORIAL LIABILITY (ABETMENT)

OFFENCES AGAINST THE PERSON

UNNATURAL CARNAL KNOWLEDGE

 Mensah Bonsu (Prof), THE GENERAL PART OF CRIMINAL LAW – A GHANAIAN

TABLE OF GHANAIAN CASES

 KWASHIE V THE REPUBLIC (1971) 1 GLR 488, CA

TABLE OF FOREIGN CASES

 R V MACDONALD (1904) ST REP Q 151

2. Blackstone: He also defined crime as “an act committed or omitted in violation of a

3. Prof. Kenny: he defined crime as “… wrongs whose sanction is punitive and is

Other Case Law Definition

7. Also in Clifford v O’ Sullivan (1921) AC 570, Viscount Cave pronounced that

TYPES OR CLASSIFICATION OF OFFENCES

1. Offences punishable by death.

4 Offences punishable by fine

FUNCTION OF CRIMINAL LAW

DISTINCTION BETWEEN CRIMES AND CIVIL WRONG

1. Criminal law should ensure a moral code

These phrases are premised upon the facts that

A person shall not be charged with or held to be guilty of a criminal offence

Centrality of Punishment to the Notion of Criminality and Purpose/Aims of Punishment

The effectiveness of deterrence depends on three main factors;

i. The certainty of punishment

There are certain problems associated with tying rehabilitation to reformation.

There are two main elements of criminal liability;

ACTUS REUS (THE PHYSICAL ELEMENT)

There are three components of actus reus

Section 78—Cases in which a Person is Under Duty to Prevent Harm to

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

(b) if the first mentioned person is otherwise under a duty, by virtue of an

Section 79—Cases of Duty to give another Person Access to the Necessaries

(a) a spouse is under a duty to give access to the necessaries of

(b) a parent is under a duty to give access to the necessaries of

(2) A woman, who is delivered of a child;