CRIMINAL LAW

Last week we started discussing the requirements of criminal liability

We made the point that a crime is made up of two elements, namely

 a prohibited act or omission, i.e. the physical element – captured in the Latin
phrase actus reus, and
 a prohibited mental state with which the particular act or omission is done,
captured in the Latin phrase, mens rea – the mens must be rea before criminal
liability can be established

We noted that as a general rule, the two elements must coincide in respect of the same
event for the act to amount to a crime

This dual requirement of criminal liability is captured in the Latin maxim Actus non facit
reum nisi mens sit rea – that is, an act does not make a man a criminal unless the mind
be guilty
We also noted that sometimes, the law dispenses with the requirement mental element,
making such an act a strict liability offence

We stressed that the actus reus may be an act, or an act together with the surrounding
circumstances, or an omission to act when required to do so

The point was also made that the mental element differs from offense to offense – in
some situations it is intentional conduct that is proscribed, in other cases, it is knowledge
of the unlawfulness of the conduct

We broke off at the point where we were discussing intention under section 11 as a form
of mens rea

Here, the concept of direct intent under section 11(1) was explained in the light of the
rebuttable presumption that a man intends the natural and probable consequences of his
actions

Then the concept of oblique intent under section 11(2) was also explained – this is where
a person engages in conduct for a particular purpose and the means chosen causes other
effects as well – here, the accused is not excused from liability if his act achieves an
undesired consequence, as long as the undesired consequence was foreseeable at the time
the act was committed

So as the illustration under section 11(2) goes, if A, for the purpose of causing the
miscarriage of B, administers to B a drug which A knows to be dangerous to life, it is
immaterial that A earnestly desires to avoid causing B’s death, and uses every precaution
to avoid causing it

Now let’s proceed to discuss other forms of intent under section 11

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Sometimes a person engages in criminal conduct against a crowd or an assembly of
people without really intending to harm a particular person, and a member of the group is
harmed thereby

Here, the intention is indeterminate in respect of who would be victimized or the

eventual victim

This form of intent is known as general or indeterminate intent

Here, the accused will still be liable even though the eventual victim was not within his
direct contemplation

Section 11(4) provides that:

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 that person or thing, and is
liable in the same manner as if the intention has been to cause the event with respect
to that person or thing

Therefore, if A discharges a gun into a crowd, and one of them is shot, A will be
presumed to have intended to cause harm, unless he can show that he had ground for
believing that harm would not be caused – here, A is punishable as if he had purposed to
cause the harm to the person to whom it was in fact caused

A case in point is R v. Gyamfi. In that case, the Appellant was the Organizing Secretary
of the United Party (UP) at Badu in Brong Ahafo. At a political rally, the Appellant was
leading a number of UP supporters toward a crowd of CPP supporters. The UP supporters
were throwing stones. The Appellant threw a stone, described as slightly larger than a
fist, at the CPP supporters, and it hit one Kwabena Oppong, who died from injuries
sustained therefrom.

His conviction for murder was overturned because there was no intention to cause death.
However, the critical point to note here is that he was found guilty for manslaughter
because there was sufficient intention to cause harm by the act of throwing a large stone
into a crowd

Contrast this case with Ahenkora & Badu

In that case, three persons consulted a jujuman as a means of increasing their business
prosperity. The jujuman took them to a cemetery and asked them to stand abreast of each
other. The jujuman was to summon spirits by firing a loaded gun. The jujuman instructed
the 3 men not to look around upon the firing of the gun. As the jujuman was doing a third
revolution around the men the gun was fired and it struck one of the men who died
shortly afterward. The jujuman and one of the 3 three men, who supplied the gun, were
convicted of murder. They appealed to the Court of Appeal.

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In acquitting and discharging the Appellants, the Court of Appeal made the following
Observation:
The essential question in the present case is this: Can the appellants, because they
went to the cemetery with a gun for the purpose of summoning spirits, be
presumed to have intended the consequence that followed when the gun was
discharged, resulting in the death of the deceased? In other words, did the
appellants actually intend killing the deceased, or any person? The jury should
have been told that intent and desire were different things, but that once it was
proved that an accused person knew that a result was certain, the fact that he did
not desire that result was irrelevant. In this case, however, the evidence is not
such as to show that the appellants knew (or ought to have anticipated) the result
which followed the discharge of the gun

In this case the appellants were exculpated from liability – and it would appear as though
the appellate court was bit soft on especially the jujuman who had the gun

But clearly, had the prosecution established that the accused knew or ought to have
anticipated the result which followed the discharge of the gun, the jujuman would not
have been heard to say that he did not have the victim in his contemplation when he fired
the gun

Sometimes, a person may target a person for the purpose of inflicting harm on that
person, but he misfires and harms another person instead

For instance, if A aims at B with a gun but misfires and hits C, the law will hold A liable
for the death of C

Here, the law says that the accused will still be liable for the harm resulting to the second
person was the result of a transferred intent

It would realized that in such a case, the actus reus and the mens rea occur in two
separate places, that is, the actus reus occurs on the eventual victim while the mens rea
occurs on the intended victim

So if we were to strictly apply the maxim actus non facit reum nisi mens sit rea, there
would be no crime because the there is no convergence between the actus reus and the
mens rea, and the accused would thereby be exculpated from all liability

However, the law seeks to overcome this clearly undesirable situation by the adoption of
a legal fiction of transferring or stretching the mens rea to match the actus reus

This form of intent is known as transferred intent

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The underlying philosophy is that a man who has an unlawful and malicious intent
against another, and, in attempting to carry it out, injures a third person, should be
punished as if the initial intention was to harm the injured person

So section 11(5) provides that:

A person who 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 the intent had been directed against that different person

A case in point is Ametewee

In that case, the appellant, a police officer who was on duty at the Flagstaff House, fired
three shots at the President. One of the shots hit and killed the President’s body guard.
The appellant contended that his sole desire was to take away the life of the President and
that he did not at anytime form any intention to kill the deceased. Therefore, it would be
illogical to hold that he intended to kill the deceased. In the words of the appellant:
On 1January, the President came to the office. I was on duty but I did not see him
when he came to the office. It was on the second that I saw him. He entered the
office, and when he was about to go I tried to do the job. The distance between
me and the President was not far; and if I meant to aim at him properly I would
not miss, but I just held the gun anyhow and fired. I fired thrice. I remember
running towards the President and his Aide-de-Camp, Mr. Salifu Dagarti was then
holding the President by the hand. He was trying drag him into the car. I fired the
third time again but I missed the President. I was all the time aiming at the
President, so my mind was on nobody else. But in fact it was not my mind to kill
him; if I meant to kill him only one shot of mine would have killed him.

Later, the appellant had this to say:

I was too busy to think of Salifu Dagarti because he was not in my focus. I was
cocking the fourth round into the rifle chamber when it sprang out and dropped to
the ground.

The Supreme Court was clearly unimpressed and stated as follows:

It would seem that the appellant was labouring under a misapprehension that
because his aim was to kill the President, if his bucket 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. Gross: “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.”

It should be noted that in determining liability under the concept of transferred intent, any
defence available to the accused or any extenuating factor that works to the advantage of

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the accused, had the harm occurred to the intended victim, will still be available to the
accused although the harm occurred to another person

This is the effect of section 11(6) which provides that:

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

Proof of Intent

Now, how does one prove intent?

It is not at all easy establishing intent – for as you may have heard, the Devil himself
knows not the intent of a man

Since the law is not a practice in clairvoyance, we have established a presumption to aid
in the determination of a person’s intent at the time an event occurs

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

So the general rule is that, if what occurred is the natural or probable consequences of a
conduct engaged in, it does not lie in the mouth of the accused to assert that he did not
intend the achieved result

For instance, if a man sleeps with a woman without protection during an unsafe period,
he may not heard to say that he did not intend to impregnate the woman – why? Because
the natural or probable consequence of sleeping with a woman without protection during
an unsafe period is pregnancy

It should be noted that the presumption that a man intends the natural and probable
consequences of his actions is not a conclusive presumption – it is rebuttable if the
accused is able to lead evidence to the contrary

So that in our example, if the man is able to show that he used protection in the form of a
condom, he may able to escape liability although the condom broke

Thus, if a man loads a revolver, points it at another, aims carefully at the victim’s heart
and pulls the trigger, the only possible explanation is that he intended to kill the victim

Therefore, section 11(3) provides that:

A person who does an act of a kind or in a manner 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

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 b) that there would be great risk of the act causing or contributing to
contributing to cause an event,
intends, for the purposes 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

So in Serechi v. The State, AGC employees were conveying firewood trucks on a

locomotive train from Obuasi to a village. Some non-employees jumped unto the trucks
as the train started moving, obviously to hitch a free ride.

The accused did not take kindly to this mode of “lift”. So they pushed a few of the non-
employees off the train. Unfortunately, they pushed the deceased off when the train was
moving very fast. He fell and he was run over by a falling truck. The accused flatly
denied their involvement in the incident. They were convicted for murder.

On appeal, the Supreme Court held that was sufficient evidence of an intention to cause
death and the infliction of the unlawful harm.

You cannot lightly fault the Supreme Court on this – for what do you expect when you
push off a man from a fast moving train

Now, what is the test or standard for upholding the presumption that a man intends the
natural and probable consequences of his actions?

Under English law an attempt was made in the much criticized case of DPP v. Smith to
set an objective test by the adoption of the standard of the reasonable man, that is the
standard of an ordinarily cautious or observant person

In DPP v. Smith, the respondent was driving car in the back of which were stolen sacks
of scaffolding chips. A police constable, noticing the sacks, asked him to stop, but instead
the respondent accelerated. The constable clung on to the side of the car, which pursued
an erratic course, but he was finally shaken off and fell in front of another car, receiving
fatal injuries. The respondent contended that he did not intend to kill the constable but
merely wanted to shake him off the car.

In upholding his conviction for murder, the House of Lords outlined the objective test as
follows:
It is immaterial what the accused in fact contemplated as the probable result of his
actions, provided he is in law responsible for them in that he is capable of forming
an intent…On that assumption, the sole question is whether the unlawful and
voluntary act was of such a kind that grievous bodily harm was the natural and
probable result and the only test of this is what the ordinary responsible man
would, in all the circumstances, have contemplated as the natural and probable
result…

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 Once the accused’s knowledge of the circumstances and nature of his acts has
been ascertained, the only thing that can rebut the presumption that he intends the
natural and probable consequences of those acts is proof of incapacity to form an
intent, insanity or diminished responsibility

The Supreme Court of Ghana, in the case of Akorful, disapproved the test of the standard
of the reasonable man set by the House of Lords in DPP v. Smith

In Akorful, the appellant heard someone trying to force open his window at about 1 am.
He got up, took up 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 toward the direction
where the person was coming from in order to scare him away. His shots hit and killed
one Kofi Buabeng.

In his summing up to the jury, the trial judge adopted the test of the reasonable man

The Supreme Court rejected the test of the reasonable man in the following words:
In our view DPP v. Smith is not an authority on the law of murder for this
country, and by directing the jury to apply an objective test the learned trial judge
seriously misdirected the jury on the only issue before him. What the learned trial
judge in effect told the jury was that once they were satisfied that a reasonable
man in the circumstances of the appellant would appreciate the consequences of
his act they should pay no attention to what the appellant said about the state of
his own mind. That of course is not our law. It would indeed be monstrous that
the idiot or stupid man should hang simply because he had not the intelligence or
the foresight of the reasonable man…The proper criterion is what the prisoner
himself had in his mind.
Indeed, it would appear that by the formulation of section 11(3), the test applicable in
Ghana is at once both objective and subjective

The statement of the presumption in the first part of section 11(3) appears to be based on
an objective test – (refer)

On the other hand, the second part of section 11(3) which deals with setting aside the
presumption appears to be based on a subjective test – (refer)

Motive

Now let’s contrast intention with motive

Intention is very different from motive

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

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For instance, if a person kills another, the motive may be for revenge or to attain some
economic benefit from the death of the victim

So if a man shoots and kills his uncle to benefit under his will, the intent, which makes
the act murder, is the desire to kill, while the motive, which forms no part of criminal
liability, is the desire to benefit under the will

Unlike the situation in some jurisdictions in the United States, in Ghana there is no
obligation on the part of the prosecution to prove the motive behind that person’s action

On another score, motive is not defence for engaging in a criminal conduct, however
innocent it is – in other words, one who breaks the law with a good motive or in aid of a
religious belief still breaks the law

Causation

We have established that for a crime to be made out there must be a coincidence of the
physical prohibited act, the actus reus and the prohibited mental state, the mens rea

Sometimes, it is not so easy to establish conclusively whether the accused is responsible

for the actus reus due to the existence of a combination of factors that operate to make
such a definite determination unclear.

Yet, for a person to be linked to the actus reus – i.e. we must establish a causal
connection between the accused and the act that constitutes the actus reus

In the absence of this link, a person cannot be held liable for the particular offence

The concept of causation attempts to ascertain when we may conclude that a person is
responsible for a blameworthy act or whether a person is responsible for bringing about a
prohibited event or state of affairs

Hart and Honore posit that on a primary level, human beings bring about desired
alterations in objects by making appropriate movements of their bodies – these, they say,
are captured by transitive verbs like push, pull, bend, twist, break etc.

On another level, human beings bring about secondary changes, not only in the objects
actually manipulated, but in other objects

In law, our concern is the result of our primary actions – that is, the desired secondary
change

The desired secondary change is the effect and the cause of the secondary change is our
action in bringing about the change – so we cause injuries by blows, glass to break by
throwing stones etc.

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In other words, causation looks to our producing one thing by the doing of another thing
In other words, the result of our action is the end and our action is the means to that end

Causation, therefore, is the result of a person’s action or inaction

In establishing a causal link between the accused and the actus reus, our concern is not to
indulge in logical sequencing – that is, since this event followed the other then that other
must have caused the event

This is captured in the Latin phrase, post hoc ergo propter hoc – meaning “after this,
therefore because of this”

This is said to be a logical fallacy that asserts or assumes that if one event happens after
another, then the first event must be the cause of the second – for e.g. A’s blow was
followed by B’s death, therefore A’s blow caused B’s death

Do you appreciate the inherent fallacy in this assertion?

In law, we adopt common sense principles of causation – we do not engage in strict

physical scientific analysis of causation – therefore if A sets fire to a house, we will not
remove ourselves six steps from practicality by saying that the fire was not caused by A
but by the presence of oxygen that kindled the fire – yet in strict scientific analysis, it is
indeed the presence of oxygen that caused the fire

In other words, in law, we are not concerned with the factual or de facto scientific cause –
were it to be so, no one will ever be held to have caused an event

Our concern, therefore, is legal cause – that is – a finding of the person that set a chain of
events in motion

In law, to cause, is to bring about an event or state of affairs by one’s own act or
endeavor

Causation is treated under sections 13, 64 and 81 of Act 29

By section 13(7), it is a question of fact whether an event is fairly and reasonably to be

ascribed to a person’s act to have been caused by that act

To establish the responsibility of the accused for the actus reus, it must be proved that the
accused caused or contributed to cause the prohibited event

So if no connection can be established between the act of the accused and the ensuing
event, the accused will be exculpated from liability

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A case in point is R v. Yeboah – The accused was seen one evening leading a group of
people who were chasing an unknown man and shouting “thief” “thief”. The following
morning, a fatally injured man was discovered a short distance from the direction of the
chase. He died and the accused was charged with the murder. It was held that there was
no evidence connecting the accused with the death of the deceased

The lesson here is that mere suspicion will not do

The situation we have just described relates where only one person act is in question or
where only one person is alleged to have acted

What about the situation where the acts of several persons cause or contribute to cause an
event?

This is the area of Joint Causation

Where the several acts of several persons result in a proscribed event or state of affairs, it
is the act that is proximate to the occurrence of the event or state of affairs that may be
instructive

Thus, section 13(3) provides that:

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

So as the illustration in the Act goes…

See also the case of R v. Waters

It is clear from the second part of section 13(3) that the accused’s act must not be a purely
trivial cause of the event – this is what is known as the defense of minimal causation –
captured in the Latin phrase – de minimis contribution – that is trivial or minimal
contribution

The rule from the second part of section 13(3) is that a trivial or de minimis contribution
operates to exculpate the accused from liability

A case in point is R v. Cato – in that case it was explained that a trivial or minute
contribution to causing an event will not suffice for the purpose of establishing criminal
liability

In all these, it must be stressed that there must be an unbroken chain of causation between
the act of the accused and the event

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Thus, although the accused may have set a chain of events in motion, if a factor or the act
of another person interposes itself between the act of the accused and the ensuing event to
break the chain of causation, the accused will not be held liable

This is the concept of novus actus interveniens – that is a new intervening act

The question here is this: can you hold a man responsible for doing an act sufficient to
produce harm, with the intention of producing the harm, even if the act strictly cannot be
said to have caused the harm?

For instance, A., intending to kill C, inflicts a serious wound on C. B., without being
asked, joins in and actually kills C. B’s culpability is certain, but what about A?

On this point, section 13(4) provides:

A person shall not be convicted of having intentionally or negligently caused
an event if, irrespective of the act 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 or the existence or intervention of which
other event or person the accused did not take into consideration

Under this principle, the chain of events is broken when a third force intervenes to change
the course of the train of events that the accused set in motion – but this is so only if the
accused had no cause to take that factor into account while directing his mind to his
action or if it was an unforeseen event

So as the illustrations in the Act go…

Under what specific circumstances may we conclude that an intervening event has broken
the chain of causation to exculpate the accused from liability?

The first circumstance is as follows:

Does the resort to the use of persons under a disability break the chain of causation?

In other words, does the use of Involuntary Agents break the chain of causation?

An involuntary agent is defined under section 13(2) as an animal or any other thing, and
also a person who is exempted from liability to punishment for causing the event, by
reason of infancy, or insanity

The rule is that a person who intentionally causes an involuntary agent to cause an event,
shall be deemed to have caused the event – s. 13(1)

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The rationale is that an involuntary agent does not possess the requisite mens rea – the
mens rea at all times remains with the person who resorted to the use of the involuntary
agent

So as the illustrations in the Act go…

A case in point is R v. Michael – in that case, the accused bought a bottle of laudanum
and handed it to a woman named Stevens with instructions to administer it to the
accused’s child. Stevens left the bottle on the mantelshelf and another child of five picked
it and administered to the other child and it died. It was held that the accused was guilty
of murder since the administration of the poison by an unconscious agent was equivalent
to administration by the accused herself

See also R v. Saunders (1573) 2 Plowd 473

The second circumstance is as follows: does an act done, not out of legal duty, but out of
a moral obligation operate to break the chain of causation?
Here the rule is that an act reasonably done to rescue the victim or render medical
assistance, even if the actor is not legally bound to help, does not relieve the accused
from liability, if death occurs from the attempt to rescue or to render assistance

This is because in terms of section 13(4), the accused ought to have contemplated that
some person, upon seeing the victim writhing in pain from the harm he has visited upon
the victim, would attempt to rescue or render assistance to the victim

A case in point is R v. Smith – in that case the appellant, who was a soldier, stabbed
another soldier in a barrack-room fight. There followed a series of unfortunate
occurrences. A fellow-member of his company tried to carry him to the sick bay but he
tripped over a wire and dropped him. He picked him up again, went a little farther and
fell with him again. He left the victim on the ground and went for help. At the sick bay,
the victim was given medical treatment which turned out to be inappropriate and he died.
The appellant was convicted for murder.

Lord Parker J. opined that:

It seems to the court that if at the time of death the original wound is still an
operating cause and a substantial cause, then the death can properly be said to be
the result of the wound, albeit that some other cause of death is also operating.
Only if it can be said that the original wound is merely the setting in which
another cause operates can it be said that the death does not result from the
wound. Putting it another way, only if the second cause is so overwhelming as to
make the original wound merely part of the history can it be said that death does
flow from the wound.

The third circumstance is this: does an act done to avoid detection of an earlier act
operate to break the chain of causation?

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The question arises whether a person should be held liable for doing an act with the
intention of causing an event but unknown to him the act does not cause the desired
event. Then laboring under the mistaken belief that he has caused the desired event, he
proceeds to a second act of covering up the first act to avoid detection or punishment. But
it turns out that the second act, and not the first, actually caused the desired event. The
question here is whether the second act, done in the mistaken belief that the first act had
caused the intended event, operates to break the chain of causation

For e.g. A, intending to kill B, hits him on the head with a crow-bar. However, unknown
to A, the hit did not kill B as he intended but merely rendered him unconscious. A, then,
laboring under the mistaken belief that B is dead, proceeds to place him under a grove, in
an attempt to cover up the death of B. B, then, dies of exposure under the grove.

The difficulty here is that the second act was done without the requisite mens rea

The rule here is that, A would still be liable and the act of concealment will not be held to
have broken the chain of causation

So in Thabo Meli [1954] 1 WLR 228, the appellants, in accordance with a preconceived
plan, took a man to a hut, gave him beer so that he was partially intoxicated, and then
struck him over the head. They, believing him to be dead, took his body and rolled it over
a cliff, dressing the scene to make it look like an accident. In fact, the man was not then
dead, it being established from medical evidence that the final cause of his death was
exposure when he was left unconscious at the foot of the cliff. The appellants contended
that the two acts were separate acts, and that, while the first act was accompanied by
mens rea, it was not the cause of death, but that the second act. While it was the cause of
death, was not accompanied by mens rea, and that, therefore, they were not guilty of
murder. The court rejected this argument.

Lord Reid observed that:

It appears to their Lordships impossible to divide up what is what was really one
series of acts in this way. There is no doubt that the accused set out to do all these
acts in order to achieve their plan, and as part of their plan; and it is much too
refined a ground of judgment to say that, because they were under a
misapprehension at one stage and thought that their guilty purpose had been
achieved before, in fact, it was achieved, therefore they are to escape liability the
penalties.

Then there are provisions in the Act that relate solely to causing death and the question is,
under what circumstances may we conclude that there has been a novus actus
interveniens, that is, an event which breaks the chain of causation

So we will discuss the fourth circumstance under the heading, Take Your Victim as
Find Him

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It is said that since we are destined or fated to die at some time, every instance of killing
is an instance of accelerating death – therefore no one is allowed to play God by
determining how long a person should live – therefore hastening a person’s death by as
little as 3 minutes is still criminal homicide – so it is no defense to a person who stabs
another to show that the victim was already dangerously ill

In the same vain, we have what is called the egg-shell skull concept – to put it crudely, in
harming your victim, you should assume that his skull is as fragile as an egg-shell

So in causing a person’s death, you will not be heard to say that other people, subjected
to the same kind of treatment would have died

Our response is that “You take your victim as you find him, warts and all.”

So then, what if the victim suffers some illness which might probably cause his death and
the accused applies a blow to ignite the disease to hasten his death – this is the situation
of co-existing circumstances

The question is: does the co-existing disease operate to break the chain of causation?

A long time ago, Matthew Hale posited that “if a man be struck of some such disease
which possibly by course of nature would end his life in half a year and another gives
him a wound or hurt which hastens his end by irritating and provoking the disease to
operate more violently or speedily, this hastening of his death sooner than it would have
been is homicide or murder.”

In other words, an existing illness or susceptibility of the victim does not negative causal
connexion

This old common law position is still good law in today’s Ghana

So s. 64(a) provides that

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
Section 64(b) also follows up with the provision that:
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

A case in point is R v. Twum v. The Republic – in that case, the appellant hit the deceased,
an able-bodied and healthy looking policeman, in the face. The deceased fell down and
bled from the nose and mouth and he died the next day. The medical evidence showed
that apart from the cracked skull resulting from the blow, the deceased had oedima of the
lungs which could have killed him later. It was held, on appeal, that despite the evidence
of oedima, the blow was the proximate cause of death

14
Still under Take Your Victim as You Find Him, what if the victim refuses treatment
after the harm caused and dies as a result – does this break the chain of causation to
exculpate the accused from liability?

Sometimes the victim may refuse treatment on religious grounds – for instance,
Jehovah’s Witnesses abhor blood transfusion – so what if you cause harm to a member of
the sect and he/she refuses to undergo blood transfusion which is necessary to heal
him/her and he/she dies as a result – will the accused be liable

What about some spiritual churches that believe strictly in faith healing and therefore
refuse conventional treatment?

On another score, what if the victim chooses her form of treatment and refuses to undergo
the proper or recommended treatment?

Then again, what if victim does not proper care of herself after the harm has been caused
and she dies as a result?
The law is reluctant to find that the failure on the part of the victim to observe proper
precautions for her own health, or her refusal to undergo medical treatment, breaks the
chain of causation

Thus, ordinarily the refusal of the victim to undergo treatment or her lack of proper care
for herself does not break the chain of causation

Under our law, the want of proper care by the victim breaks the chain of causation only
when there was extraordinary neglect on the victim’s part to attend to his wounds

In other words, the victim’s action or inaction after the infliction of harm does not break
the chain of causation unless the victim’s behaviour subsequent to the injury was
unreasonable

So section 64(c) provides that:

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 the 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

Thus, the catch is that the victim’s refusal to undergo medical treatment or her lack of
proper care of herself subsequent to the injury does not break the chain of causation

15
between the harm inflicted by the accused and her death, unless the victim’s conduct
amounts to a reckless and wanton disregard for her own health or condition

The question is: what amounts to wanton or reckless disregard for one’s health or
condition?

The Act does not contain a definition or an explanation of this concept

We will consider two English cases in which the issue arose

The first is R v. Holland – in that case, the accused waylaid the victim and assaulted him,
severely cutting off one of his fingers. The surgeon advised the victim to have his finger
amputated, telling him that unless it were amputated his life would be in great danger.
But the victim refused to allow amputation. An infection of lockjaw set in which
ultimately caused death.

On these facts, would you say that the behavior of the victim amounted to a wanton or
reckless disregard of his health or condition?

Well, it was held that the death of the victim was a consequence of the original assault by
the accused

This is very typical of what I said previously that the law is reluctant to find that the
failure on the part of the victim to observe proper precautions for her own health, or her
refusal to undergo medical treatment, breaks the chain of causation

The second case is R v. Blaue and it gets even more interesting

The victim was a girl of 18. She was a Jehovah’s Witness. She professed the tenets of the
sect and lived her life by them. One afternoon, the appellant came into her house and
asked for sexual intercourse. She refused. He then attacked her with a knife inflicting four
serious wounds. One pierced her lung. She lost a large quantity of blood and was told by
the surgical registrar that a blood transfusion was necessary. She refused the transfusion
on the ground that it was contrary to her religious beliefs. She was told that if she did not
have the transfusion she would die. She persisted in here refusal and she died the
following day. The physical cause of death was the bleeding into the pleural cavity
arising from the penetration of the lung. The appellant contended that the girl’s refusal of
transfusion was unreasonable and that it had broken the chain of causation.

Lawton LJ had this to say:

The physical cause of death in this case was the bleeding into the pleural cavity
arising from the penetration of the lung. This had not been brought about by any
decision made by the deceased girl but the stab wound. Counsel for the appellant
tried to overcome this line of reasoning by submitting that the jury should have
been directed that if they thought the girl’s decision not to have a blood
transfusion was an unreasonable one, then the chain of causation would have been

16
 broken. At once the question arises – reasonable by whose standards? Those of
Jehovah’s Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon
descent? The man on the Clapham omnibus? But he might well be an admirer of
Eleazar who suffered death rather then eat the flesh of swine or of Sir Thomas
Moore who, unlike nearly all his contemporaries, was unwilling to accept Henry
VIII as Head of the Church in England. Those brought up in the Hebraic and
Christian traditions would probably be reluctant to accept that these martyrs
caused their own deaths…
It has long been the policy of the law that those who use violence on other people
must take their victims as they find them. This in our judgment means the whole
man, not just the physical man. It does not lie in the mouth of the assailant to say
that his victim’s religious beliefs which inhibited him from accepting certain
kinds of treatment were unreasonable. The question for decision is what caused
her death. The answer is the stab wound. The fact that the victim refused to stop
this end coming about did not break the causal connection between the act and the
death.

Once again, we see an example of the judges fidelity to the policy of the law being
reluctant to find that the failure on the part of the victim to observe proper precautions for
her own health, or her refusal to undergo medical treatment, breaks the chain of causation

Indeed, I have not come across a decided case in which it was held that the victim’s
refusal to undergo medical treatment broke the chain of causation

Yet, there is an important point to note

It would be seen from the two English cases just discussed that the judges declined to
consider a possible defense that the victims perhaps acted unreasonably – this may be as
result of the circumstances surrounding the deaths of both victims

However, under Ghanaian law, as we have seen from section 64(c), the victims wanton or
reckless disregard for her health or condition operates to break the chain of causation

This implies that in Ghana it is a defence available to the accused for the court to
consider

We have not had any case in Ghana on this point – but it has been argued, notably by
Prof. Mensa-Bonsu that a case bearing a fact pattern similar to that in R v. Blaue would
produce the same result in a Ghanaian court

There is force in this suggestion – but what is your take on it in light of the provisions of
the Constitution?

Is refusal of treatment unreasonable?

Is the constitutional guarantee of freedom of belief uncurtailed?

17
It is a tough moral question

Now, what if the victim is subjected to improper medical treatment subsequent to the
harm and she dies as a result?

The question stated differently is this: does negligent mistreatment operate to break the
chain of causation?

On this point section 64(d) provides:

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

The effect of this provision is that medical or surgical treatment cannot, in law, be
regarded as a cause of death as long as the surgeon or physician does by way of approved
medical practice, what is proper and necessary to relieve the pain and suffering even if
the measures incidentally shorten life

The underlying philosophy is that medical treatment is intended to lessen pain and to save
lives – thus, the acts of physicians ordinarily do not break the chain of causation

Therefore, unskillful treatment does not relieve the accused from liability unless:
 death could not have been foreseen as likely consequence of the treatment, or
 the treatment is grossly negligent

Mere negligence will not suffice – the negligence contemplated here must be so great as
to support a conviction for manslaughter – that is – the negligence must amount to a
reckless disregard for human life

See R v. Jordan
R v. Malcherek and R v. Basare
In Basare, one Atta Kofi and his son were returning from their farm one morning when
they saw Kwaku Basare carrying away a bag of cocoa from their verandah. They shouted
to Basare twice to put it down. Having put the bag down, he went in the direction of a
palm tree, took up a gun and shot at Atta Kofi, killing him. Basare was convicted for
murder. On appeal, it was argued that the trial judge erred in failing to consider whether
the treatment given to the deceased in hospital may have been responsible for his death.
In delivering the judgment of the Court of Appeal, Granville Sharp had this to say:

…it is enough to say that death resulting from treatment of a wound unlawfully
inflicted does not, however inadequate such treatment may have been, exonerate
the person who inflicted the wound from responsibility in law for the
consequences of his act, unless the treatment itself amounts to murder or
manslaughter.

18
Still on the same point, some jurisdictions distinguish between cases where the original
wound was mortal and cases where it was not

So, for instance, you will find in those jurisdictions, that were the original wound is not
mortal, the accused is excused from responsibility.

An example may be found in the 1878 Michigan case of People v. Cook (1878) 39 Mich.
236. The accused inflicted a dangerous wound on the victim but the death was
immediately occasioned by an overdose of morphine. The jury was instructed that only if
the wound was not in itself mortal and death was caused solely by the morphine must
they acquit

In Ghana, we do not insist on a distinction between mortal wounds and non-mortal

wounds

But clearly, if the original wound is mortal and it leaves the victim no chance of survival,
then the accused will be liable no matter the nature of the treatment – this is because the
circumstances that call for a consideration of the contribution of negligent mistreatment
do not arise

Now, we come to a very important consideration: does time lapse break the chain of
causation with respect to harm that causes death?

The question is, with respect to causing death, should we stop the buck at some point in
time to relieve the inflicter of the harm from liability?

In the 1908 English case of R v. Dyson, Lord Alverstone, CJ stated that unless the death
occurred within a year and a day of the time when the injuries causing it were inflicted,
the person charged could not be convicted of manslaughter, and this is the law of England
today

Indeed, this is also the law in Ghana today

Sec. 64(e) provides that:

death is not caused by harm unless the death takes place within a year and a
day of the harm being caused

Therefore, the accused cannot be held liable if the victim died a year and a day after he
inflicted the harm

Therefore, in this restricted circumstance, time lapse may operate to break the chain of
causation

So much for novus actus interveniens

Now lets consider another aspect of causation

19
May the accused be held liable for death caused by acts that inflict emotional distress,
psychological harm and those believed to be caused by witchcraft or other supernatural
forces?

We turn to sec. 81(b) which provides that:

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

This provision is steeped in the consideration that the harm that causes death must be
physical harm

Therefore, an act done calculated to cause harm not by physical means but through
emotional distress and psychological harm will not fix the accused with liability

So the principle in Wilkinson v. Downton does not apply here

In the same vain, the tort principles on nervous shock do not apply here

Then again, a person is not blameworthy for causing an event through spiritual means –
so in law one is not liable for causing death through witchcraft or juju
In the same vain, one cannot set up a person’s witchcraft as a defense for inflicting harm
on her

So in the case of R v. Gadam 14 WACA 442, where the appellant killed the deceased for
having bewitched his wife, the judge held:
I have no doubt that a belief in witchcraft such as the accused obviously has is
shared by the ordinary members of his community. It would, however, in my
opinion be a dangerous precedent to recognize that because of a superstition,
which may lead to such a terrible result as is disclosed by the facts of this case, is
generally prevalent among a community, it is therefore reasonable.

Now, lets consider the issue of contributory negligence in causation

The question is: can an accused set up the contributory negligence of the victim to
exculpate himself from liability?

On this point sec. 81(c) provides that:

…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 cause the harm

Thus, it does not lie in the mouth of the accused to assert that the harm was caused by the
victim’s contributory negligence

20
But what if the actus reus occurs in one jurisdiction and the mens rea was formed in
another jurisdiction, as in being in one jurisdiction and causing an involuntary agent to
cause harm in another jurisdiction?

What if the actus reus is began in one jurisdiction but is completed in another jurisdiction
– as in causing harm to a person in one jurisdiction but death occurs in another
jurisdiction?

For the answers to these questions lets turn to

 sections 13(4) and sec. 68

It should be noted that all the rules on causation are applicable to inchoate offences as
attempt, conspiracy and abetment
- sec. 13(6)

CAPACITY AND DEFENCES

The criminal law is backed by punitive sanctions – the offender therefore faces, upon
conviction, the prospect of punitive sanctions, unless pardoned by the President

Due to the infliction of punishment for the breach of criminal prohibitions, the law
recognizes that it is not every member of our society that is amenable to punishment
either due to congenital defects, infancy or some other incapacity

Therefore, certain persons are exempted from the operation of the criminal law – a
curious example is that in the UK, the Crown cannot be prosecuted because that would be
Regina v. Reginam, which was thought to be impossible – indeed, the courts belong to the
Queen and so she cannot be prosecuted before them

We have a similar provision in our Constitution – Article 57(5) provides that: “The
President shall not, while in office as President, be personally liable to any civil or
criminal proceedings in court.”

Therefore, for as long as he remains in office, the President is insulated from the
operation of the criminal law

Infants

We have established that the requirements of criminal liability are a guilty act and a
prohibited state of mind - the mental element in criminal liability supposes that the
offender is capable of making moral choices – in the sense that he able to appreciate the
difference between right and wrong - this in turn presupposes that the offender’s mind is
mature and sound enough to appreciate the nature of the choice he makes

21
Infancy raises problems of criminal responsibility

The child may engage in a prohibited act but is her mind mature enough to appreciate the
difference between right and wrong – and to appreciate the nature of the choice (if it is a
choice) he makes?

Here, we are speaking about responsibility in the sense of moral or legal accountability

A person is morally responsible if he can justly be blamed and punished for wrong-doing
– the policy is that children below a certain age do not fall in this category – so on that
score, she is not legally responsible

It is recognized that a child of a certain age is immature and hence incapable of making
moral choices – in the sense of distinguishing between right and wrong

Thus, an act done by such an infant, which would otherwise constitute a crime, is excused
on the basis of legal incapacity

The policy question is: At what age does one wish to administer legal punishment to
child?

It all depends on a society’s conviction of the age of criminal majority

At common law, the age of criminal responsibility was 7 – but it has been raised to 10
years

In Ghana, the age of criminal responsibility is 12 years – it used to be 10 years until the
law was amended in 1998

Thus, sec. 26 provides that:

For the purposes of the criminal law a person under twelve years of age is
incapable of committing a criminal offence

Therefore, as the illustration goes:

A, aged eleven years administers poison to B. A is not criminally responsible
and is considered incapable of understanding the consequences of those
actions from a legal perspective

So the point is that in Ghana a child under 12 yrs is deemed to be incapable of forming
mens rea – hence incapable of committing a crime due to an undeveloped capacity to
appreciate the difference between right and wrong

Therefore, we say that a child under the 12th birthday is doli incapax – has no capacity
for mischief – as opposed to doli capax – capacity for mischief

22
At common law, as illustrated by R v. Gorrie, there was what was termed mischievous
discretion – where, in respect of a child between 7-14, the presumption of innocence
could be rebutted by evidence that the child knew that what he was doing was wrong

Under the concept of mischievous discretion, the presumption of innocence could be

rebutted by evidence of the child’s state of mental development

Thus, at common law, the law took cognizance of the fact that some infants develop
faster than others – thus, those whose mental faculties developed faster and were held to
appreciate the right from wrong, were held liable for their actions

So a subject test was applied to ascertain whether the child’s moral sense was sufficiently
developed to make it possible for here to be held criminally responsible for her actions

The concept of mischievous discretion is not applicable in Ghana

In Ghana, the law conclusively presumes a child under 12 yrs to be incapable of

committing a crime, period

However, there is an unsettled issue in the area of sexual offences with respect to children
between ages 12-16

In Ghana, the age of sexual consent is 16 – a child below 16 is incapable of giving his/her
consent to sexual conduct

Therefore, under sec. 101, a person who engages in sexual conduct with a child under 16
yrs is guilty of defilement – it does not matter whether the child consented to the act

So the question of sexual consent is settled where the child is a victim of a sexual offence

But what if the child is the perpetrator of a sexual offence?

What if a boy of 14yrs forcibly has sex with a girl of 13yrs?

Or what if a boy of 15 forcibly has sex with a girl of 17?

Should he be liable?

The problem is this: Under sec. 26 the boy is doli capax, that is, he is capable of
committing a crime, because he is above 12 yrs – however, under sec. 101, the law is that
he cannot give his consent to a sexual act – so wherein lies his liability?
At common law, an attempt is made to solve this problem by the institution of an
irrebuttable or a conclusive presumption that a child under 14 yrs is incapable of
committing rape – that is, he is malita non supplet aetatem – physical incapacity to
commit the offence

23
There appears to be no concept of malita non supplet aetatem on this point under the
Criminal Offences Act

Thus, the Ghanaian situation appears to be a case of being between a rock and a hard
place, or as they say, between the devil and the deep blue sea – on the one hand, we have
the age of criminal majority of 12 yrs, so the boy of 14 who forcibly has a sexual
connection with another person is caught squarely – however, the sec. 101 says a boy of
14 has no capacity to consent to sex

What is your take on this issue?

It would appear that with respect to sexual offences, criminal liability is functionally
determined – in the sense that as a victim, a child between ages 12-16 is held incapable of
consenting, but as a perpetrator, the same child is held malita supplet aetatem –
physically capable of committing rape

Is it reasonable to hold the child to such double standards?

Now let’s consider the defences

Defences are either partial or complete

A complete defence operates to exculpate the accused from liability

A partial defence does not entirely excuse criminal liability – it goes either to reduce a
charge to a lesser offence or to reduce punishment to a lesser sentence

Ignorance or Mistake of Fact

Ignorance or Mistake of Law

Ignorance of fact can excuse from criminal responsibility

However, ignorance of the law cannot excuse from criminal responsibility – or as we say,
ignorance of the law is no excuse – ignorantia juris non excusat

It is said that a person who acts in ignorance of a fact has no intention of engaging in a
forbidden conduct

However, a person who acts not in ignorance of a fact but in ignorance of the law, intends
to engage in the prohibited conduct, although she does not know that that conduct is
prohibited by law

Do you think this is fair?

24
So in R v. Tolson, it was held that a bona fide belief in the death of her husband at the
time of her second marriage afforded a good defence to the accused on a charge of
bigamy

Cave J. remarked in that case that:

At common law an honest and reasonable belief in the existence of circumstances
which, if true, would make the act for which a prisoner is indicted an innocent act,
has always been a good defence. This doctrine is embodied in the somewhat
uncouth maxim Actus non facit reum, nisi mens sit rea. Honest and reasonable
mistake stands, in fact, on the same footing as absence of reasoning faculty, as in
infancy, or perversion of the faculty, as in lunacy.

See also R v. Wheat & Stocks

So sec. 29 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 grounds of
ignorance that the act is prohibited

The case of Nyamena v. The State is very instructive – in that case, the appellants were
members of a certain religious sect. For four years or more prior to their arrest they had
been using certain herbs and been using them for all sorts of things – they had been
burning the herbs as incense for invocation at their worship, making soup out it, boiling
and using it themselves or administering it to other people as medicine for all kinds of
ailment with success

They alleged that the father of one of them, upon spiritual inspiration, discovered these
herbs and the sect had ever since used them publicly to the good of all the members and
their associates. They called the herbs, “The herbs of life.” A chemical analysis carried
on the herbs proved them to be Indian hemp. However, the appellants insisted that the
herbs could not be Indian hemp, whatever it was.

It was held that the appellants appeared to be genuinely ignorant of the nature and quality
of the drugs. They were, therefore, entitled to a defense of mistake of fact under section
29

Reliance on custom appears to be no defense under sec.29(2)

A case in point is Foli VII – in that case, the appellants were charged with causing harm
to a corpse they had cremated without lawful authority. On of the appellant’s ground of
defence was that it was an established and long-standing custom in their area that any

25
person, such as the deceased, who had violated custom but was not purified before dying
should not be accorded a decent burial but should be cremated.

In rejecting this defence, it was held that a custom could not be validated merely because
it was an established and long-standing one within a particular locality when that custom
was contrary to statute

The rule in sec. 29 applies to both mala in se and mala prohibita offences

The rule finds its justification in the consideration that a person is expected to know his
legal obligations – so she is expected to know of the existence and content of every law

Certainly, the rule in sec. 29 must, of necessity, work injustice in numerous situations

For how can a person reasonably be expected to know of the content of every law?

If this can be achieved by city dwellers, what about rural dwellers? How do we expect
my illiterate grandmother in the Kwahu-South District to know of the contents of the
Criminal Offences Act?

The realists will tell you that the prophecies of what the courts may do in fact, and
nothing more pretentious are what constitutes law – this means that it is eventually how
the courts interpret the provisions of the Criminal Offences Act that is most instructive
and not merely the black letter of the Act

There is force in this contention, because ultimately, it is the duty of the judges to
determine the meaning of the provisions of the Act

So even if a person apprises herself of the content of the law, are we being fair to her by
presuming her to know the law when she cannot predict how the judges would resolve an
ambiguity?

It is not only knowing how the judges may resolve an ambiguity on a particular occasion,
for we know that in deciding cases judges consult precedents to come to a decision – the
implication of this is immense – it implies that perhaps a person needs something more
than a copy of Act 29 to know the state of the criminal law, but that she needs a whole
law library before she can reasonably be abreast with the state of the law

Then again, even if she acquires this whole law library, will this be enough since she may
not understand the intricacies of legal principles?

However, two reasons are advanced in support of the rule in sec. 29, namely:
 It is difficult to prove that the accused knew the law, if there was no
presumption that he did know the law

26
  There is the risk that such a defense would make it advantageous for people to
deliberately refrain from acquiring knowledge of their duties by hiding under
the excuse of ignorance of the law

Consent

Consent is a common law defence and it is not expressly stated as a defence under Act 29

However, there are several offences in Act 29 that are defined requiring the lack of
consent – for instance, the offence of rape is made out when the lack of consent to sex is
established – another such offence is stealing – so a person who takes another person’s
property with that person’s consent is not guilty of stealing

The nature of offences like rape and stealing implies that the existence of consent will
operate in the inability of the prosecution to make out the offence – hence the
establishment of consent on the part of the victim operates as a defence to entirely
exculpate the accused from liability

It must be noted that in whatever form it takes, consent must be voluntarily given – that
is, freely given and the person giving the consent must be of full age and capacity

Retrospective consent will not do

On another score, consenting to something is very different from liking the thing or how
disagreeable you find the thing to be – for instance, if a woman consents to sex, she
would not be held later to complain that the act was disagreeable or that the sex was
lousy – the law is not interested in that fact
Consent validly obtained and sanctioned by law excuses from criminal responsibility
- see Comfort v. The Rep [1974] 2 GLR 1
Consent is dealt with under sections 14 and 42 of Act 29

Sec. 14 sets the specific rules on consent – while sec. 42 sets the limits to the giving of
consent

The chapeau or the opening paragraph of sec. 14 sets the tone clearly that the defence of
consent arises where it is required that an act be done with 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 be done with a person’s consent

By sec. 14(a) the following persons cannot give consent to any act:
 A child under 12 yrs
 With respect to sexual offences, a child under 16 yrs
 Insane person
 A person who is unable to understand the nature or consequences of his
action by reason of immaturity

27
  A permanently incapacitated person
 A temporarily incapacitated person like an intoxicated person, or drugged
person or a comatose person

So a purported consent obtained from any such person is void and incurably bad – it is
deemed as if they never consented at all, because the law regards them as incapable of
consenting to any action

This flows from the consideration that an infant is not matured enough to consent and
also that an unconscious person cannot consent

It also flows from the consideration that a person of subnormal intelligence may not give
consent

So as the illustration goes,

A induces a person in a state of incapacity from idiocy or intoxication, or a child under
12 yrs to consent to the hair of that person being cut off by A. the consent is void

On another score, though consent may be apparent, it is vitiated if there was no real
opportunity for choice

So consent is void if it is obtained by fraud or deceit – sec. 14(b)

Consent is obtained by fraud or deceit is void if it would have been refused but for the
existence of the fraud or deceit – sec. 14(f)

This is because the person giving the consent must be fully informed of the
circumstances of the transaction in order to make a fully informed choice

Thus, half-truths will not do – whole falsehoods are even worse

So as the illustration goes:

A by pretending to have the consent of a child’s father or under pretence of medical
treatment, induces the child to consent to sexual intercourse. The consent is void. Or

A induces a woman to consent to having carnal knowledge of her by personating her

husband. Her consent is void

A case in point is R v. Williams - In that case, the appellant was a Presbyterian

choirmaster, and it was arranged that he should give lessons in singing and voice
production to Vera Howley, a girl of 16 yrs, and subsequently it was arranged that he
should give lessons to Ada Cannell, a girl of 19 yrs. He had sexual intercourse with Vera
under the pretext of creating a passage in her vagina with his penis to make her sing
better by easing her breathing since she was not getting her notes right. It was held that
the summing up of the trial judge in the following terms was accurately stated:

28
 The law has laid it down that where a girl’s consent is procured by the means
which the girl says this prisoner adopted, that is to say, where she is persuaded
that what is being done to her is not the ordinary act of sexual intercourse but is
some medical or surgical operation in order to give her relief from which she is
suffering, then that is rape although the actual thing that was done was done with
her consent, because she never consented to the act of sexual intercourse. She was
persuaded to consent to what he did because she thought it was a surgical
operation

The lesson here is that it is immaterial whether perhaps the victim found the supposed
operation unexpectedly pleasant

Contrast this case with the Canadian case of R v. Bolduc & Bird (1967) 63 DLR (2nd) 82
– in that 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 be 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. On appeal, the convictions were quashed because
although her consent had been procured by fraud, it did not affect the nature and quality
of the act, that is, the medical examination, to which she consented. Also that the second
appellant’s act did not amount to indecent assault as he merely stood and looked on

Duress also vitiates consent – sec. 14(b)

Consent is obtained by duress, if it would have been refused but for the duress – sec.
14(f)

So by section 1, an act done with force, harm, constraint, or threat, with intent to cause a
person, against that person’s will to do or abstain from doing an act vitiates consent

So as the illustration goes,

A induces a child to have sexual intercourse by threats of false imprisonment. The
consent is void

For consent to be vitiated by duress, the act inducing consent need not be of extreme
violence

If you submit to an act only because you are made to believe that without submitting you
will be overpowered and have the act done to you anyway, you have not consented in law
– for instance, an armed robber ordering a female occupier of the house he is robbing to
submit to sexual intercourse would not be heard to say that he did not apply any force so
the female occupier willingly consented to the act

What if a debtor threatens not to pay back the money he/she owes you unless you submit
to sexual intercourse? Is your consent thereby vitiated?

29
Consent is also vitiated by the exercise of undue influence

Undue influence involves one person taking advantage of a position of power over
another person

So in general, the law, as a matter of policy, guards jealously the interests of the weaker
party in the following relationships:
 Parent/child
 Guardian/ward
 Priest/member of parish
 Solicitor/client
 Doctor/patient
 Employer/employee

So section 14(c) provides that:

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 purpo
O for which it is allowed by law, is for the purposes of this section, a power
unduly exercised

For the purposes of consent, the exercise of authority is not limited to the exercise of
authority by way of command (as in the case of men of uniform), but includes influence
or advice purporting to be used or given by virtue of an authority – sec. 14(g)
=`1
Consent is obtained by the undue exercise of authority if it would have been refused but
for the exercise of authority
Under sec. 14(c), one of two situations may vitiate consent:
1. consent that is obtained by or under the exercise of any kind of authority; and

2. consent that is obtained by the exercise of authority by operation of law but

which is exercised otherwise than in good faith

Under the second form, since the consent is obtained by the exercise of authority by
operation of law, as long as it is within the confines of what is allowed by law, the
consent is valid – the underlying consideration for invalidating such consent is the
presence of mala fides – bad faith

If the consent is obtained by the exercise of authority in good faith, it may not be
invalidated

So as the illustration goes:

A the chairman of a company, consents to B drawing money from the company to
which A knows B does not have a right. If A does not honestly believe that the action
is in the interest of the company the consent is void, and B commits the criminal
offence of stealing unless B has acted in good faith

30
However, under the first form, there is no consideration as to the bona fides or mala fides
of the obtaining of consent by or under the exercise of authority

Under the first form, as long as it is shown that the consent was obtained by or under the
exercise of authority, it is void without any consideration of whether or not there was
good or bad faith

Now let’s consider the cases under the obtaining of consent by the exercise of undue
influence

R v. Nichol – in that case, it appeared from the evidence of the victim, Ann Eliot, a girl of
13, that she was a student at a school managed by the wife of the accused. The wife was
absent for a few days and the accused assumed his wife’s position. On one occasion
while he was sitting in a chair and the girls, numbering seven, standing around him, he
put his hand up the petticoat of Ann Elliot, unbuttoned his breeches, took her hand, and,
pulling her toward him, put it into his breeches, so as to touch his private parts; and she
continued in that situation for the space of half an hour while she was reading. On
another occasion, two or three days afterward, when Ann Elliot was alone in the
classroom, the accused sitting in a chair took her between his legs, put his hand up her
petticoat, unbuttoned his breeches, pulled up her petticoat, put his private part in hers, and
continued in that pose for a considerable space of time. He then instructed her not to tell
anyone. Ann Elliot maintained that the acts of the accused were against her will.

In giving the accused to the charge of the jury, the trial judge observed that the girl was
of tender years, and the authority and influence of the accused were likely to have put her
more off her guard than she would naturally have been from her age and experience, and
that a fear and awe of the accused might check her resistance and lessen her natural sense
of modesty and decency; and that under such circumstances, less resistance was to be
expected than in ordinary cases. The jury found the accused guilty.

The principle to be gleaned from this case is that if a person in a position of authority or
influence, like a school master in this case, takes indecent liberties with a person subject
to his authority or influence without the person’s consent, though the person does not
resist, he is liable to be punished as for an assault

A case in point is Re T [1992] 4 All ER 649. Miss T was separately raised by her parents
who had separated when she was only 3yrs old. A custody order awarded custody of Miss
T to her mother. The custody order specifically stated that Miss T should not be brought
up according to the faith of Jehovah’s Witnesses – a faith her mother subscribed to. Miss
T was never baptized into the faith and the sect issued a press statement that Miss T is not
and has never been on of Jehovah’s Witnesses. But Mrs. T clearly sought in all other
respects to bring up Miss T with the view to her becoming a Jehovah’s Witness.

Miss T was involved in a road traffic accident when she was 34 weeks pregnant. She was
diagnosed of pleurisy or pneumonia. She filled a patient assessment form at the hospital

31
and in response to an entry which asked for the religious beliefs and relevant practices
she filled: Jehovah’s Witness(Ex) but still has certain beliefs and relevant practices. Her
condition became worse and it was decided that a caesarian was necessary to deliver.
Before the operation Miss T signed a refusal of consent for blood transfusion if it became
necessary. The form was countersigned by the midwife. The form contemplated that it
was to be signed by an obstetrician, but it was not so signed. Then again, contrary to what
was stated on the form, it was not explained to her that it may be necessary to give her
blood transfusion so as to prevent injury to her health, or even to preserve her life.
Indeed, the form was read and explained to her. She simply signed blindly. However,
before she signed the form, she had been put on pethidine, a narcotic drug. The doctor
who observed her testified that she was drowsy and was not compos mentis. Her
condition deteriorated after the caesarian that produced a stillborn baby. She was put on a
ventilator and paralyzing drugs were administered.

At the first court hearing, Ward J. decided that in the circumstances, it would not be
unlawful for her to be given a blood transfusion. Thereupon she was given a blood
transfusion or plasma. However, at the second hearing before the same judge, the doctor
who observed her changed his evidence completely. Ward J. therefore found that
although Miss T was under the influence of the painkilling pethidine, she had not lost her
mental faculties and was sufficiently capable of understanding the questions put to her
concerning blood transfusion. Ward J. also found that Miss T reached her decision to
refuse blood transfusion under the undue influence of her mother, but concluded that the
decision was a voluntary one and was not vitiated by any undue influence. The Court of
Appeal took the view that Miss T's refusal of consent was vitiated by her mother's undue
influence. The Master of the Rolls, Lord Donaldson of Lymington, observed:
A special problem may arise if at the time the decision is made the patient has
been subjected to the influence of some third party…The real question in each
such case is: does the patient really mean what he says or he is merely saying it
for a quiet life, to satisfy someone else or because the advice and persuasion to
which he has been subjected is such that he can no longer think and decide for
himself? In other words, is it a decision expressed in form only, not in reality?

Consent is also vitiated by a mistake of fact

Consent is obtained under a mistake of fact if the consent would have been refused but
for the mistake – sec. 14(f)

The mistake may be as to

 the nature of the act, or
 the identity of a person

However, it is not every form of mistake of fact that will operate to invalidate consent – it
must be a fundamental mistake

For as sec. 14(e) provides:

32
 A consent does not have effect if it is given by reason of a fundamental
mistake of fact

A fundamental mistake is one that goes to the root or the heart of a consent given

Now let’s consider consent by third parties on behalf of another

Sometimes, a person may consent on behalf of another for the doing of an act in respect
of that other person – for instance, a parent or guardian may give consent on behalf a
child

In law, such consent, when given, must be for the benefit or the good of the person on
whose behalf it is given – therefore, it must be given in good faith – if it is given in bad
faith, that is, not for the benefit of the person in question, the consent is void

For as sec. 14(d) provides:

A consent given on behalf of a person by the parent, guardian of that person,
or any other person authorized 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 was given

More than 10yrs after the interesting case of Miss T, another interesting but sad case
cropped across the Atlantic in the United States involving Terri Schiavo – discuss

A case in point is Re A [2000] 4 All ER 961

Limitation on the Right to Consent

Owing to the seemingly inseparable link between the criminal law and morality, the
question often arises whether the law should interfere where acts between two consenting
adults do not affect other persons

The question boils down to this: should we individuals autonomy of action or choice or
should we limit this by insisting that nothing should be done to a man if it is antisocial or
to his disadvantage, even if he consents? – that is, should we allow people the right to do
what they desire with their own bodies, so long as they do not harm others? – this has
been the debate between the libertarians and the authoritarians

In most cases, the law defers to individual autonomy or right of action – so notionally,
anything may be done to a person if he consents to it – for instance, when you play
soccer, you consent to being tackled and when you box, you consent to being punched

However, there are limits to the right to consent – the law may deprive us of the legal
ability to consent to certain acts that are regarded as immoral or socially injurious

In Ghana, the limits placed on the right to consent are contained in sec. 42

33
The first limitation is that a person cannot consent to his own death

Thus, sec. 42(a) provides that:

The killing of a person cannot be justified on the ground of consent

A case in point is R v. Cato – in that case it was established that although the victim had
consented to the injection of heroin, his consent was not generally a defense to a charge
of manslaughter

Another case in point is R v. Pike – in that case, the accused caused his mistress to be
anaesthesized by the application of Carbon Tetrachloride (CTC) soaked on a rag for
inhalation, so that he could satisfy his sexual passion of copulating with an unconscious
woman. The mistress died as a result of the dangerous anesthetic and he was convicted of
manslaughter there was evidence that she consented to the act

On this same point, a person who commits euthanasia cannot set up the consent of the
victim as an excuse

Aside of death, a person cannot consent to the infliction of a wound or a grievous harm
on him – sec. 42(b)

It was explained by Stephen J in R v. Coney (1882) 8 QBD 534 at 551, that:

Where a person is indicted for inflicting personal injury upon another, the consent
of the person who sustains the injury is no defence to the person who inflicts the
injury, if the injury is of such a nature, or is inflicted under such circumstances,
that its infliction is injurious to the public as well as to the person

A case in point is R v. Donovan – in that case, the appellant, for the purpose of gratifying
a perverted sexual passion, administered to a girl of 17 a fairly severe beating with a
cane, which left seven or eight red marks on her body. According to the evidence of one
of the witnesses, she overhead a telephone conversation between the victim and the
appellant wherein they were discussing the girl’s desire to experience this sexual passion.
When they met, the first remark the appellant made to the victim was: “Where would you
like to have your spanking, in Hyde Park, or in my garage.” The victim contended that
she did not take this remark serious. The appellant contended that the victim consented to
the spanking. The issue was whether the existence or lack of consent was essential to the
guilt of the appellant. Although the appellant was discharged for a misdirection of the
jury, the Court of Criminal Appeal stated the position of the law, the essence of which is
captured in sec. 42(b) that:
If the act is unlawful in the sense of being in itself a criminal act, it is plain that it
cannot be rendered because the person to whose detriment it is done consents to
it. No person can licence another to commit a crime. So far as the criminal law is
concerned, therefore, where the act charged is itself unlawful, it can never be
necessary to prove absence of consent on the part of the person wronged in order
to obtain the conviction of the wrongdoer…As a general rule, although it is a rule
to which there are well-established exceptions, it is an unlawful act to beat

34
 another person with such degree of violence that the infliction of bodily harm is a
probable consequence, and when it is proved, consent is immaterial

The exception here is that consent by a person for the infliction of a wound or a grievous
harm may be justified if the wound or harm is caused, in good faith, for the purposes or in
the course of medical or surgical treatment – sec 42(b)

However, consent to the use of force for the purpose of medical treatment does not
extend to improper treatment or negligent mistreatment – sec 42(c)
Still on medical treatment, consent may be given by a parent or guardian on behalf of a
child under 18yrs against the will of the child for the medical or surgical treatment or for
the benefit of the child – in such a situation, the child cannot revoke the consent – sec.
42(d)
- see Re W (A Minor)[1992] 4 All ER 627

Along the same lines, consent may be given by a prison authority on behalf of prisoner or
by a medical authority on behalf of an insane person for the use of force against that
person for the purposes of medical or surgical treatment or for his benefit – sec. 42(d)

In the case of an insane person, this provision makes perfect sense, but how do we justify
it in the case of an adult prisoner? Does the fact of incarceration extinguish all rights of
self-determination?

Still on medical treatment, force may, in good faith, be justifiably used on a person for
the purpose of medical or surgical treatment or for his benefit if that person is unable to
give or withhold consent by reason of
 intoxication, or
 insensibility – for instance PVS or coma
- section 42(e)

However, such consent may be revoked or given by a person authorized the intoxicated
or insensible person or by a person authorized by law

What about harm caused in the course of a fight? Does a person who engages in a fight
consent to being harmed?

Flowing from the rationale underlying the provision in sec. 42 (b), a person who engages
another in a fight cannot justify, on the grounds of consent of that other party, force
which he uses with intent to cause harm to the other party – sec. 42(f)

This is so whether the fight was lawful or unlawful

So under sec. 42(f), where the intent to cause harm is established, the consent to fight is
rendered ineffective in law as a matter of public policy whether the fight is lawful or
unlawful

35
Does this apply to boxing organized according to the Queensbury Rules?

It would be difficult to establish that a blow delivered in a boxing bout was intended to
cause harm, unless perhaps one boxer head butts the other of kicks him

Revocation of consent

Consent once given, may be revoked, and when it is revoked, it ceases to have effect or
justify force – sec. 42(g)

What is the consequence for relying on invalid consent?

- sec. 14(h)

Insanity

Insanity is more of a legal concept than a medical one – it is the law that determines
whether a person is insane based on his mental circumstances determined by medical
science

There is no legal definition of insanity – it is a combination of factors or states of affairs

from which the law draws a conclusion as to the sanity or otherwise of a person

At common law everyone is presumed to be sane

The genesis of the defence of insanity may be traced to the 1843 case of M’Naghten or
McNaghten – the spelling of the defendant’s name varies in the law report – 8 ER 718

Daniel McNaghten shot and killed Edward Drummond, the Secretary of Prime Minister
Sir Robert Peel, perhaps thinking it was Peel himself. McNaghten, who suffered from
what today would be called paranoia, was actuated by the morbid delusion that he was
being persecuted by “Tories”. He was acquitted on the ground of insanity.

The supposed leniency of the verdict caused a public outcry. The law of insanity was
debated in the House of Lords, and their Lordships decided to require the judges to advise
them on the relevant legal principles

Five questions in all were put to 14 judges. But because the questions were not referable
to any particular case, the response of the judges technically could not be regarded as
precedent. However, the response of the judges, which came to be known as the
McNaghten Rules have been so followed and cited that it is now authoritative.

The five questions posed by the House of Lords were the following:
 what is the law respecting alleged crimes committed by persons afflicted with
insane delusion in respect of one or more particular subjects or persons: as for
instance, where at the time of the commission of the alleged crime the accused
knew he was acting contrary to law, but did the act complained of with a view,

36
 under the influence of insane delusion, of redressing or revenging some supposed
grievance or injury, or of producing some supposed public benefit?
 What are the proper questions to be submitted to the jury, where a person alleged
to be afflicted with insane delusion respecting one or more particular subjects or
persons, is charged with the commission of a crime (murder, for example) and
insanity is set up as a defence?
 In what terms ought the question to be left to the jury as to the prisoner’s state of
mind of mind at the time when the act was committed?
 If a person under an insane delusion as to existing facts, commits an offence in
consequence thereof, is he thereby excused? and
 Can a medical man conversant with the disease of insanity, who never saw the
prisoner previously to the trial, but who was present during the whole trial and the
examination of all the witnesses, be asked his opinion as to the state of the
prisoner’s mind at the time of the commission of the alleged crime, or his opinion
whether the prisoner was conscious at the time of doing the act that he was acting
contrary to law, or whether he was labouring under any and what delusion at the
time?

The response of the judges was essentially as follows:

The jurors ought to be told in all cases that every man is to be presumed to be sane, and
to possess a sufficient degree of reason to be responsible for his crimes, until the contrary
be proved to their satisfaction; and that to establish a defence on the ground of insanity, it
must clearly be proved that:
a) At the time of the committing of the act, the party accused was labouring under
such a defect of reason, from disease of the mind,
b) As not to know
 the nature and quality of the act he was doing, or, if he did know it,
 that he did not know he was doing what was wrong

Act 29 retains the underlying principles of McNaughten but there are fundamental
differences

The rationale underlying the defence of insanity is that since we look at a person’s state
of mind to determine his criminal liability, if by some reason he had lost his mental
faculty at the time of engaging in a prohibited conduct, we would say that his mind was
absent or non-existent and therefore no purpose will be served to look at his non-existent
state of mind since he had no mind – and thus his moral blameworthiness is also absent

However, we do not proceed on the assumption that everyone is insane – so I said

previously that everyone is presumed to be sane

Owing to this presumption of sanity, it is the duty of the accused to lead evidence to
establish his insanity on a balance of probabilities

37
In Ghana, the presumption of sanity is rebutted where one of two situations is established,
namely
1. a defect in the mental faculty which renders the accused incapable of knowing
the nature and consequences of his actions; or
2. a mental delusion which renders the accused an unfit subject for punishment

The defence of insanity is a partial defence – that is – a successful plea of insanity does
not lead to an acquittal – it leads to the pronouncement of the verdict of “guilty but
insane” – this is known as the special verdict provided for under sec. 137 of Act 30 – see
the chapeau or opening paragraph of sec. 27 of Act 29

Under the special verdict, the insane convict is not treated like an ordinary convict – he is
kept away from society often in a mental institution “till the pleasure of the President be
known” – sec. 137 of Act 30

So we say that criminally insane are kept under the President’s pleasure

The rationale underlying sec. 137 of Act 30 and the chapeau of sec. 27 of Act 29 is that a
homicidal maniac cannot be let loose on society, so although we free the criminally
insane from punishment, at the same time we compel them to undergo treatment for their
own sake and for the sake of society

The special verdict of “guilty but insane” appears to be in conflict with the underlying
philosophy that an insane person is not morally responsible because his mind is non-
existent and so he cannot form mens rea – if he cannot form mens rea why do we say he
is guilty but insane? Why is he guilty if cannot form mens rea? – In England, they use
perhaps a more appropriate formulation – “not guilty by reason of insanity”

The first situation that upsets the presumption of sanity – that is – a defect in the mental
faculty which renders the accused incapable of knowing the nature and consequence of
his actions, is treated under sec. 27(a), which provides that:
Where a person is accused of a criminal offence, the special verdict provided
by Act 30 in the case of insanity is only applicable 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

So as the illustrations go:

 If a person by reason of idiocy is incapable of knowing that the act of that
person will cause death, the special verdict applies
 If a person commits homicide by reason of a paroxysm of madness which at
the time makes that person incapable of considering that murder is a
criminal offence, the special verdict applies
 The special verdict is not applicable merely because it is proved that by
reason of a mental derangement the accused has a propensity to homicide

38
Idiots and imbeciles are persons of defective mental faculties or feeble-minded persons or
persons of subnormal intelligence

It is not every idiot or imbecile or mentally deranged person or a person suffering from a
disease of the mind that can set up his condition as a defence upon his commission of a
crime

To set up such mental condition as a defence, the person must show that he was
prevented by that condition from knowing the nature or consequences of the act – so the
question is: did the person know what he was doing?

If it happens that despite the person’s mental condition, if he knew what he was doing at
the time of the commission of the crime, he will be held liable

So in R v. Windle [1952] 2 All ER 1 – case, the appellant was convicted of the murder of
his wife. He was a man of little resolution and weak character who was married to a
woman 18yrs older than himself. His married life was very unhappy. His wife, in the
opinion of the doctors, though they never saw her, must have been certifiable, and was
always talking about committing suicide. The appellant became obsessed with this and
discussed it with his workmates until they were tired of hearing him, and on one
occasion, one of them said “Give her a dozen aspirins”. On the day of the crime the
appellant seems to have given his wife 100 aspirin tablets, which was a fatal dose. Later,
he told the police that he supposed he would be hanged for it.

The defence at the trial was that he was insane. There was some evidence that the
appellant suffered from some defect of reason or disease of the mind. The doctor called
by the defence said it was a form of communicated insanity known as folie a deux which
arises when a person is in constant attendance on a person of unsound mind.

The appeal was dismissed. In delivering the judgment of the Court of Criminal Appeal,
Lord Goddard CJ observed:
The evidence that was given on the issue of insanity was that of the doctor called
by the appellant and that of the prison doctor who was called by the prosecution.
Both doctors expressed without hesitation the view that when the appellant was
administering this poison to his wife he knew was doing an act which the law
forbade…It may well be that in the misery in which he had been living with this
nagging and tiresome wife who constantly expressed the desire to commit suicide,
he thought she was better out of the world than in it. He may have thought it was
a kindly act to put her out of her sufferings or imagined sufferings, but the law
does not permit such an act as that…A man may be suffering from a defect of
reasoning, but, if he knows that what he is doing is wrong – and by ‘wrong’ is
meant contrary to law – he is responsible.

Flowing from this, the important consideration is the mental state of the accused at the
time he committed the act

39
This may be ascertained from medical history and the acts of the accused
contemporaneous to the event; his acts immediately before or at the time of the act, or
immediately after the act

A case in point is Williams – Mariama Williams was married to JB Lari. It appeared that
Mr. Lari had perhaps had a sexual connection with Mariama’s pre-marital daughter. It
also appeared that Mariama set fire to Mr. Lari and burnt him to death. She at first
admitted setting the fire but denied it at the trial. She set up insanity as a defence but the
medical witness who had attended her did not support her plea of insanity. She was
convicted of murder. She appealed. Although the appeal was allowed, her insanity
defence was rejected. The Court of Appeal held on this point that:
It is sufficient to state that the essence of a defence of insanity is that at the
material time of the act complained of the accused was suffering from such
disease of the mind that he could not be said to have known the nature and
consequence of the act committed by her. This state of mind, apart from evidence
of history, is often discovered by contemporaneous acts and behaviour of the
accused, that is the conduct of the accused immediately before or at the time or
immediately thereafter of the acts complained of. There was no evidence here of
any abnormal behaviour by the appellant in that respect…

On another score, a senseless killing lacking motive is not in itself an indication of a

deranged condition of the mind – other factors must add up to upset the presumption of
sanity

So in Collins alias Derby – in the early hours of June 28, 1984, a young woman left her
house to take breakfast to her father in his farm. She got there only to discover her
father’s battered body in a stream under a bridge that divided his two farms. In attempting
to drag her father out of the water, she discovered he had sustained extensive injuries.
Blood was oozing from his mouth and the side of his neck. His teeth had been knocked
out.

There was no eyewitness to the killing, which appeared a senseless one without motive.
The mystery would have remained complete but for circumstances that emerged later
which enmeshed the appellant in the drama. First, one witness saw him in the morning of
the killing with blood on his chest. She also identified a pair of sandals lying by the
deceased as belonging to the appellant. Another witness also saw him that morning
around 4.30am emerging “from the direction of the bush” path where the deceased was
killed.

A white torn blood-stained trousers was found in the appellant’s room. Similarly soiled
with blood was a pillow on the appellant’s bed and a piece of cloth in the room.

The appellant disappeared from the community and resurfaced 9 months later in March
1985. There was a big scar on his left arm which he claimed to have sustained when he
fell down on a bridge between Adiembra and Kweikuma on a bush-path. It was the same
bridge straddling the stream which bisected the deceased’s two farms.

40
At the commencement of the trial, defence counsel sought an order from the court for the
psychiatric observation of the appellant. Counsel complained that he could get no
meaningful instructions since the appellant conceived himself as Jesus being persecuted
by the Jews. The mother testified that the appellant’s mental state had interrupted his
nautical studies in England and Spain and caused his repatriation to Ghana and an
enforced residence at Ankaful.

The medical officer who testified, dwelt on his medical history and spoke of his
schizophrenic tendencies which reflected in his escape from hospital and the conception
the appellant entertained of grandeur as a ship owner, a ship’s captain, a monarch of all
he surveyed.

The medical officer observed that his madness had abated in December 1983 after a full
treatment but a favorable prognosis could not be given since it depended on regular
medication which unfortunately the appellant did not avail himself of because he did not
attend hospital. Accordingly, the appellant’s schizophrenic mental state would persist.

Francois JSC, who delivered the judgment of the SC, observed:

A senseless killing lacking motive is not by itself an index of a deranged
condition of the mind. Other ingredients must supply the doubt of mentality…But
where a history of schizophrenia obtains, it should point to a possible mental
defect.

The second situation which upsets the presumption of sanity – that is – insane delusion –
is treated under sec. 27(b) which provides that:
Where a person is accused of a criminal offence, the special verdict provided
by Act 30 in the case of insanity is only applicable 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.

So as the illustrations go:

 A kills B by reason of an insane delusion that B is attempting to kill A. Here
the jury will be justified in finding that A is not a fit subject for punishment
 A is subject to insane delusions. In an interval of freedom from these
delusions, A kills B. Here the jury ought to take into account the fact at other
times A was subject to delusions

The consideration here is that the accused lives in a world of his own and he is oblivious
of happenings in fact and in reality – thus, it is sufficient if the accused acts while in a
state of mind induced by mental disease, in which a false belief is held that cannot be
shaken by facts or reality

Such a state of mind may be temporal or permanent

41
Case in point is Moshie [1959] GLR 343. On the morning of December 23, 1958, for no
apparent reason, 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 and
was holding him with his left hand, bending over him and cutting him up with a cutlass
wielded in his right hand, when one of the villagers who had been attracted to the scene
by the alarms of women, shouted at him saying: “Is that a human 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 toward him, holding the cutlass in a threatening manner.

The man then pointed the gun at him hoping he would drop the cutlass. Moshie was not
in any way deterred, but pressed forward. The man then shot him in the knee. Moshie fell
down but got up and rushed toward the man. The man then fired a second shot, which
disabled Moshie.

His story was that his landlord had come from Kumasi with a number of men to take him
to the Asantehene to be killed. The men dragged him out of his room and were forcing
him into a vehicle. At that grave moment, he snatched his cutlass and slashed his way
through his assailants in order to save his life.

The court held, per Ollennu:

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
which all other people in the village, who witnessed the scene, were living…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…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 everyone else saw, and that he firmly
believed (in spite of what everyone else said) that what he was saying was the
truth.

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

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

A case in point is Abugiri Frafra alias Pini Frafra – on June 29, 1971, at Pokukrom in
BA, the appellant attacked the deceased with a cutlass for no apparent reason one
afternoon while the deceased sat talking with his wife. There was one fatal wound on the
neck which almost completely severed the head from the body. Death was instantaneous.

42
In his statement to the police, the appellant said he killed the deceased because the
deceased threatened to kill him for having an affair with his sister. However, in court he
narrated a completely different story of being in a fight with the deceased and during the
scuffle he was attempting to pick a cutlass from under the head of the deceased and the
fatal wound occurred.

The medical officer who testified indicated that the appellant suffered from paranoid
schizophrenia and that this form took the nature of persecutory delusions.

The trial judge directed the jury to consider whether the accused was in such high degree
of disorder that he was incapable of controlling his conduct.

In rejecting this direction, the CA held:

Our law on insanity does not require that the mental delusion should lead to an
incapacity to control conduct. The direction given by the judge is in effect that the
defence of insane delusion should succeed only if it led to an uncontrollable
impulse. That is not right. In our law it is sufficient if the accused acted while in a
state of mind, induced by mental disease, in which a false belief is held that
cannot be shaken by facts.

Still on insane delusion, there is no requirement of ascertainment of the effect of the facts
forming the delusion – all that is required is that the accused, by reason of an insane
delusion, is not a fit subject for punishment

A person is fit subject for punishment if he is morally blameable for the act – but here,
there is the absence of moral blameworthiness so it is pointless punishing him for it

Sec. 27(b) marks a change from the old McNaughten position which is to the effect
whether a person suffering from an insane delusion is punishable is dependent upon the
nature of the delusion – so that if the delusion is such that the accused would have been
justified if the imagined facts were true, there would be no liability – however, if the act
made the accused’s reaction unjustifiable even if the imagined facts were true, then there
would be liability

For some time, a line of Ghanaian courts unhappily followed this old McNaughten
position despite the clear wording of sec. 27(b)

The matter has been put to rest now in Akpawey where the court put things in their right
perspective that, there is no requirement that if the facts imagined by the accused were tr
ue, then his action would be justified and that it would not be justified otherwise

That is to say, the law merely looks at the delusion which is the product of a mind that is
in such a state as to be incapable of appreciating the difference between right or wrong

43
In other words, it is the degree or quality of the incapability of the mind that caused the
delusion and not the subject or substance of the particular delusion which decides the
issue – see Akpawey (discuss)

This point was also stressed in Moshie that the important consideration is whether the
insane delusion is of such a nature as to render punishment pointless – the law is not
concerned with the form the delusion takes

It has also been stressed that an important factor is that at the time of the incident the
accused was labouring under an insane delusion and not what it becomes subsequently –
see Manu [1965] GLR 149

Automatism
Automatism is a form of mental disorder which negates mens rea but does not amount to
insanity

Examples are somnambulism (sleepwalking); concussion; epileptic fits; hypoglycaemia

(a defect in blood-sugar); dissociation (classified as hysterical neuroses, in the absence of
organic brain disease – the extreme form of dissociation is the “split personality” of the
type of Jekyll and Hyde)

Automatism, in legal terms, is any abnormal state of consciousness that is regarded as

incompatible with the existence of mens rea, while not amounting to insanity – it is
sometimes called impaired consciousness

Automatism occurs when a person acts without his cognitive faculties

It is a common law defence in aid of a person who has done an act but without being
conscious of the fact – i.e. the person is purely an automaton – that is – a state in which
the body behaves like a machine or robot and the mind becomes a non-controlling
component of the body – that is – a state of doing an act without the doer’s awareness

So, in law, automatism is the state of a person who, though capable of action, is not
conscious of what he is doing – it is as if the person has had a blackout

It is a defence because the mind does not go with what is being done

- see Bratty v. A-G for Northern Ireland [1963] AC 401; and

- Burgess [1991] 2 WLR 1206

There is no provision in Act 29 concerning automatism, but a Ghanaian court will hold
that a temporary blackout during which a crime is committed would be considered as a
defence of automatism since the mind, at the time in question, was absent

44
So in Dogo Dagarti – the appellant killed his wife and claimed that he did so during an
epileptic fit and that he had no recollection of what happened.

The trial judge held that neither automaton nor hysterical amnesia is a defence in Ghana.
In dismissing the appeal, the Supreme Court held:

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

SECOND SEMESTER

Last semester, we looked at general principles of criminal liability

We looked at the definition, scope of crime, punishment, elements of crime, general

defenses etc

We have spent the first week of this semester discussing inchoate offenses

For the rest of the semester, we will discuss specific offences

1st and 2nd semesters are inextricably bound together because we are moving from the
general to the specific

So the specific offenses are a way of building on what we did last semester

So we see how the general principles apply in particular situations

General Observations

We are using a code, and there are rules for interpreting the provisions of the Code

Section 415 of Act 30 tells us that Act 30 is to be read and construed as one with Act 29

General rule of construction of Act 29 is found in section 4 (b): ‘in the construction of
this code a court shall not be bound by any judicial decision or opinion on the
construction of any other enactment, or of the common law, as to the definition of any
offence or the element of any offence’

This means look to the Code for the definition and elements of an offence.

45
So avoid glosses or interpolations derived from the law of England or some other place

This does not mean that English cases and cases from other common law jurisdictions are
of no relevance to particular cases under our code

Indeed, there have been cases where our criminal law coincides with that of the UK and
other common law countries and decisions of their courts constitute persuasive authority
for our courts

In certain cases, our law is a carbon copy of the law of England

In situations of divergence, reliance on English cases may hamper rather help the proper
interpretation of provisions of our code

We shall pay attention to the following as we discuss the various crimes:

 Actus reus:
act, event, circumstance, condition etc
 mens rea as the mental element-intention, knowledge, consent etc
 absence of a defense
 We will use illustrations of prosecution and defence for the purpose of
looking at the elements of specific crimes.

The Code is not to be construed strictly but interpreted amply and beneficially to give
effect to its purposes
- section 4(a)

It is instructive to note that the illustrations contained in the Code form part of the Code
- section 4(c)

END OF GENERAL OBSERVATIONS

NOW LET’S GET DOWN TO BUSINESS

SPECIFIC OFFENSES

OFFENCES AGAINST THE PERSON

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

This covers attempting to make unpermitted physical contact with a person up to

extinguishing the life of a person

46
Homicide

Homicide is not a crime per se. It is a term used to describe a state of affairs

Homicide is the killing of a person whether lawfully or unlawfully

So there is culpable homicide and non-culpable homicide

The act or acts constituting homicide must have been done intentionally, recklessly or as
a result of gross negligence
There are two(2) types of homicide:
i. murder – which is homicide caused intentionally by an
unlawful act; and
ii. manslaughter – which may be murder reduced to
manslaughter due to extenuating circumstances,
homicide from unlawful harm not accompanied by an
intention to kill, and homicide by negligence which is
of a nature of reckless disregard for human life

NB: The main factor that differentiates murder from manslaughter is “intention to kill”
associated with murder

Intentional Homicide

The Offence of Murder

Under our law, murder is punishable by death

- section 46

Before the advent of colonial rule, our forebears had their own notions of murder

Indeed, among the various ethnic groupings forming present day Ghana, rules had been
developed governing the intentional killing of one by another

For instance, Rattray’s studies, Ashanti Law & Constitution, revealed that the Asantes
had rules on murder akin to the common law of England but with one distinct difference

According to Rattray, the Asantes did not appear to make any fine distinction between
the actual commission of the deed, and an attempt to commit it

Guilty intention was assumed upon what, to our present thinking, were the most
inadequate of grounds

For e.g., for an Asante to proclaim in public mennidi bio (I shall not eat again) was
sufficient evidence to cause him to be arraigned before the chief on a murder charge

47
This is because such a person was contemplating murder – he had publicly declared his
intention in words and in olden times, was liable to, and probably would, be killed for
nnipa bone yenkora no – we do not treasure up or preserve a wicked man

Our law on murder has no such preemptive rules

On another score, we live in a society in which the belief in the supernatural is very
strong

We cannot ignore the strong belief in devils, spirits and demons

Who among you will readily pass through a cemetery at night?

Will you decline an invitation to pass through a cemetery at night out of reverence for the
dead or out of the fear of being chanced upon by an unruly ghost?
Now consider this:
A dark night – a cemetery in a bush – an imaginative local hunter with a gun – and a
drunkard dressed up in a white gown
Is it not possible that after the fatal shooting of the white gowned drunkard by the hunter,
the plea would be: “I thought he was a ghost.”

This shows the extent of the belief in the supernatural

Yet, under our law on murder, we can only regard the accused with sympathy because he
is the perfect convict for murder under our law

It is said that during the time of King James I of England in the 18 th century, the King
thought it perfectly proper to burn old women whom he believed to be witches

Would a black African, specifically a Ghanaian be justified to take a similar action on the
supposed witches at Gambaga?

As Lewis points out, in killing the witches at Gambaga, was our friend intending to kill a
person or a spirit?

If he had no intention to kill a person, can he then be guilty of murder?

As we learnt last semester, one cannot be held to have caused a person’s death through
supernatural means

Flowing from this, logically, one cannot seek a defense on a charge of murder on the
ground that the victim was a supernatural being

So what constitutes murder under our law?

48
Section 47 defines murder. It states that “whoever intentionally causes the death of
another person by any unlawful harm is guilty of murder, unless his crime is reduced to
manslaughter by reason of extreme provocation, or other partial excuse, as mentioned in
section 52.”

For the offence of murder of murder to be established, it must be proved that:

i. a death has occurred
ii. the death was by harm inflicted by the accused
iii. the harm was unlawful
iv. the accused had the intention to kill the victim

In Serechi v. The State [1963] 2 GLR 531

AGC employees were conveying firewood trucks on a locomotive train from Obuasi to a
village. Some non-employees jumped unto the trucks as the train started moving,
obviously to hitch a free ride.
The accused did not take kindly to this mode of “lift”. So they pushed a few of the non-
employees off the train. Unfortunately, they pushed the deceased off when the train was
moving very fast. He fell and he was run over by a falling truck.

The accused flatly denied their involvement in the incident.

They were convicted for murder.

On appeal, the Supreme Court held that was sufficient evidence of an intention to cause
death and the infliction of the unlawful harm. The essential elements of the offence of
murder being intent to cause death and the infliction of unlawful harm.

The element that death must be proved is usually problematic

But sometimes, it may happen that an accused may be charged for murder though the
victim’s body has not been recovered

In such a case, the prosecution has a tall order of proving that the supposed victim is in
fact dead

Unlawful Harm

We noted a short while ago that it must be established that the accused caused an
unlawful harm to the deceased, and that the deceased died as a result of the unlawful
harm
Section 1 defines “harm” as any bodily hurt, disease, or disorder, whether permanent or
temporary

Section 76 defines unlawful harm as harm which is caused intentionally or negligently,

without any of the justifications

49
So if the harm was caused with some justification, the accused will be exculpated from
liability for murder

Intention to Cause Death

We have said that it must also be established that the accused intended to cause the death
of the deceased

It is instructive to note that what is required under our law is intention and not motive

So unlike some states in the United States, in Ghana we do not ascertain whether the
accused acted out of spite or whether the act that caused death was premeditated either to
gain some advantage or otherwise

Therefore, in Ghana, an instantly conceived intention will render the killing as murder

There is no implied or constructive malice under our law

So it cannot be said that you used violent means in committing a felony so you take the
risk and if the violent means result in death even if inadvertently) then you are guilty of
murder

Therefore, under our law, it is not sufficient to establish murder by merely proving the
accused employed violent measures in committing a felony that resulted in death

It must also be shown that the accused really intended to cause the death of the victim

Intention is treated under section 11

By section 11(3) the test is an objective one, that is, using reasonable caution and
observation, it would appear to the accused his actions would probably cause or
contribute to cause the event, or that there will be great risk of his actions causing or
contributing to cause the event

It was also noted in Serechi, that in the particular circumstances of the case the learned
judge should have directed the jury that under section 11 (3) of the Criminal Code they
should presume, from the nature of the harm, that the appellants intended that it should
cause the death of the deceased, unless there was evidence from the appellants which
showed that they believed that the said harm would not cause or contribute to cause his
death. Since no such evidence was led by or for the appellants which could rebut that
presumption, the proper direction the judge should have given is that the jury should
presume intent to kill as a matter of law from the nature, manner and circumstances of the
harm.

This means that intention may also be inferred from the ferocity or brutality of the act

50
You would recall that in Sene v. The Republic it was explained that an intention to kill
may be inferred from the instrument or weapon used in killing or the manner in which the
harm from which death results is inflicted.

Still on the question of intent, where a person does an act in good faith, for the purposes
of medical or surgical treatment, an intent to cause death shall not be presumed from the
fact the act was or appeared likely to cause death
- section 67(1)

To amount to murder, death must have occurred within a year and a day of the infliction
of the unlawful harm
- section 64(e)

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

- see Serechi v. The State
- Akom v. The State
Manslaughter

We noted previously that the essential difference between murder and manslaughter is
that the former is associated with intent to kill, whereas the latter is associated with
killing simpliciter without any intent to do so

Manslaughter is a first degree felony

- section 50

Therefore, a person convicted of manslaughter is liable to imprisonment for life or any

lesser term
- section 296(1) of Act 30

Manslaughter is various kinds of unlawful killing short of murder

We have noted that there are three(3) types of manslaughter, namely:

- murder reduced to manslaughter by extenuating circumstances or
excuse
- homicide caused by unlawful harm without intention to kill, and
- homicide caused by negligence amounting to a reckless disregard for
human life

i. Murder Reduced to Manslaughter

Recap section 47

So it is murder reduced to manslaughter by reason of extreme provocation or other matter

of partial excuse

51
Cases in which murder is reduced to manslaughter are dealt with under section 52

These are:
- deprivation of the power of self-control by extreme provocation given
by the deceased – this is dealt with under section 53
- justifiable causing of harm to the deceased and that in causing this
justifiable harm he caused excess harm resulting from such terror of
immediate death or grievous harm as in fact deprived him for the time
being of the power of self-control
See Kontor v. The Republic [1987-88] 1 GLR 324

- acting in the belief, in good faith and on reasonable grounds, that one
is under a legal duty to cause the death or to do the act

This is normally in the case of the soldiers and the police

There is an illustration in the Code on this point:

A Soldier is ordered by his commanding officer to fire upon a mob, there being no
necessity for such an order to be given. Here, if the soldier in good faith believed himself
bound to obey the order, he is not guilty of murder, but of manslaughter

- a woman, causing the death of her child of less than 12 months old, at
a time when the balance of her mind was disturbed by reason of her
not having fully recovered from the effect of giving birth to the child
or by reason of the effect of lactation consequent upon the birth of the
child

See R. V. Chima

ii. Manslaughter caused by Negligence

Proviso to section 51

Section 12 deals with negligence. It provides that: “A person causes an event negligently
if, without intending to cause the event, he causes it by voluntary act, done without such
skill and care as are reasonably necessary under the circumstances.”

However, for an unlawful harm caused by negligence to amount to manslaughter, it must

amount to a reckless disregard for human life

This clearly suggests that in our criminal jurisprudence, there are degrees of negligence

This was stressed in The State v. Tsiba [1962] 2 GLR 109

52
In that case, the Appellant went to the Afofosu forest in the Central Region to hunt for
game. After an unsuccessful expedition, he decided to return home. On the homeward
journey, he claimed he saw a reddish light on the ground, which according to him looked
like the reflecting eyes of an animal. He dimmed his hunting light twice, flashed the lamp
once in an effort to satisfy himself as to the nature of the object. Out of abundance of
caution, he also whistled four times to attract the attention of any human beings who
might happen to be about, but heard nothing.

After all these precautionary measures, he shot at the object which was still in the same
position. To his dismay, he heard the agonizing cry of a human being who had obviously
been hit by pellets from his gun.
He was convicted for manslaughter. On appeal, the Supreme Court explained that:

“Negligence, whether it be a ground for a claim in a civil court for compensation or an

essential ingredient in the constitution of a crime, is the omission to take care where there
is a duty to take care, with this difference that whereas in a civil claim there are no
degrees of negligence, such degrees exist in a criminal court.”

Also, in R v. Bateman, it was explained that:

“…for purposes of the criminal law there are degrees of negligence: and a very high
degree of negligence is required to be proved before the felony [i.e. of manslaughter] is
established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers
the case…but it is probably not all-embracing, for ‘reckless’ suggests an indifference to
risk whereas the accused may have appreciated the risk and intended to avoid it and yet
shown a high degree of negligence in the means adopted to avoid the risk as would justify
a conviction.”

So we may have:
i. negligence short of reckless disregard for human life, but a little more in
degree than civil negligence, which is the province of section 12 and
ii. negligence amounting to a reckless disregard for human life, which is the
province of the proviso to section 51 and which is our focus here

Negligence, whether amounting to recklessness or otherwise may be constituted in two

ways, namely
i. inadvertence that causes injury; and
ii. acts done by professionals without the necessary skill required under those
particular circumstances

For a negligent conduct to amount to a reckless disregard for human life, it must connote
a lack of due care, heedlessness and even rashness
See Tsiba
Grunwald

The concept of recklessness has two denotations:

53
 i. either doing an act which amounts to the taking of unjustified risk, i.e. you
foresee there is risk of the consequence following but you unreasonably
decide to take the risk, or
ii. engaging in conduct which involves the taking of unjustified risk even though
the actor does not know of the risk

You have been told that the test of what constitutes recklessness is an objective one. The
question is:
“Would a reasonable person in the position of the accused have been conscious of the
risk?”

Now let us consider how the offence of manslaughter has been treated in the cases

Akom v. The State

It was not in doubt that Akom had killed his aunt, Akua Akyia. The question here was
whether Akom was guilty of murder or manslaughter.

The case for the prosecution was that after a funeral ceremony at Danso in Asante, the
appellant and other people, including the deceased, gathered at a house to witness a live
accordion performance. Suddenly and without any provocation, the Appellant, who sat
nearest to the deceased, was seen sitting on top of the deceased and cutting her throat or
neck with a razor blade which he had carried in the inside pocket of a pair of knickers he
wore on that day. According to the prosecution, relations between the appellant and the
deceased had not been cordial because the deceased was at one time opposed to the
appellant being installed as the odikro of the village.

But please hear the other side.

The defense was that as the Appellant was attempting to pour libation, the fourth
prosecution witness, one Dwumfuoh, pushed him down and assisted by other persons,
beat him up mercilessly.

Therefore, in order to free himself from the grip of his assailants, he managed to dip his
hand into his side pocket of his pair shorts and succeeded in producing a razor blade
which he mistakenly thought was a cigarette lighter, and brandished it in the air in order
to scare away his attackers. In doing so, the instrument which in fact turned out to be a
razor blade accidentally cut the deceased who stood nearby.

He was convicted for murder at the first instance. On appeal, it was contended, inter alia,
that:
i. the trial judge erred in directing the jury that to constitute murder, all that is
required is death by unlawful harm; and
ii. that the trial judge erred in not adequately directing the jury that death could
have been caused by the accused’s negligence

54
Indeed, the trial judge, after reading sections 46 and 47 of Act 29, explained to the jury
that: “This means that if you cause the death of another person by unlawful harm, you are
guilty of murder. Unlawful harm means an injury or hurt caused to a person against the
law of the land.”

What is wrong with this statement?

But what actually turned the case in favor of the Appellant was not this confused and
wrong statement of the law as to what constitutes murder

The Supreme Court was of the opinion that had the jury considered, by proper direction,
the surrounding circumstances of the case, including the probability that the killing could
have been done as a result of a sufficient provocation received by the appellant from
persons other than the deceased, having regard to section 56, they might possibly have
reached a different conclusion.

The Supreme Court, therefore, reduced the conviction from murder to manslaughter.

State v. Kwaku Nkyi

The accused was a good and well-behaved student nurse at the Central Hospital in
Kumasi. He was asked to treat a sick child and he agreed to do so. He took with him a
syringe and a drug, which he thought was mepacrine, but was in fact, arsenic.

The accused injected the child with the arsenic. The child’s condition took a turn for the
worse and he died not long after. The cause of death was established to be acute arsenic
poisoning.

He was acquitted on a charge of manslaughter. This is what Apaloo J. (as he then was)
said:

“The prosecution’s case if I understand it alright is that the [child’s] death was caused by
harm, which harm resulted from the accused’s negligence. The negligence consisted in
the fact that the accused who is not a qualified medical man took it upon himself to treat a
sick child. In doing so, he used a dangerous drug without skill with the result that the
patient died.”

“Although I feel no doubt that the accused mistook arsenic for mepacrine due to their
similarity in color, had he been more skilful than he in fact is, he could have
distinguished between the two. In my opinion, his voluntary assumption of the treatment
of [the child] without necessary skill, as he well knew, is itself evidence of negligence.”

His Lordship continued: “As I have said, the fact that the accused was negligent is plain
enough but I cannot find on the evidence that such negligence was gross or amounts to a
reckless disregard for human life. At least in one sense at any rate, the accused in

55
responding to …the invitation and proceeding [to the house where the child was] with a
view to attending to [him] showed anxious regard for human life.”

“In my judgment, it would not be right to hold that the accused’s negligence amounts to a
reckless disregard for human life simply because possibly out of inadvertence or want of
care, he mistook the drug that he intended to administer to the sick child.”
Do you agree with the reasoning of the judge and his conclusion?

As a student nurse, was the accused not engaging in an act which amounted to the
taking of unjustified risk?

At least, was he not engaging in conduct which involved the taking of unjustified
risk even though the he did not know of the risk?

Now let’s consider the holding by the judge that in his opinion the accused’s
acceptance of the invitation to attend the sick child showed anxious regard for
human life.

Is the judge, by this saying in effect, that a medical professional cannot be held to
have been negligent as to amount to a reckless disregard for human life by the mere
fact of his anxious response to an invitation to attend a sick person?

Then, there are circumstances under which the law imposes legal duties on certain
persons

For instance, section 78 imposes a duty on certain persons to give other persons access to
the necessaries of health and life or of doing any act for the purpose of averting harm
from a person

We will consider these situations in detail when we discuss Causing Harm

For our present purposes, it suffices to say that where a person is under a legal duty to
prevent harm to another person, that other person will be guilty of manslaughter if the
harm which he failed to prevent results in the death of the other person
See R v. Instan (1893) 1 QB 450

This is so as long as it is shown that the failure to perform the duty recognized by law
amounted to a reckless disregard for human life

Child as Object of Homicide

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

56
(physical process is anticipated-passage of child from the womb and out of the vagina)
- section 66(1)

Even if the child has not breathed or has its blood circulation dependant on that of the
mother or the umbilical cord has not been detached, it is still possible for the child to be
the object of homicide

This is where harm is caused to the child before it was birthed

- section 66(2)

Thus, if you cause unlawful harm to a child before it is born, you will be guilty of murder
or manslaughter, as the case may be

See the interesting English case of Attorney-General’s Reference (No. 3 of 1994)[1996]

QB 581

In that case, the Respondent stabbed his girlfriend in the abdomen, knowing her to be 5
months pregnant with his child. She received medical attention in hospital where a cut in
the wall of the uterus was found and sewn up. The fetus was mistakenly believed to be
uninjured. The stab to the uterus caused the mother to give birth to a grossly premature
girl, who received exemplary medical care but survived for only 120 days.

On the death of the child, the Respondent was charged with murder of the child. The trial
judged ruled, on a submission of no case, that even if the facts were established, they
could not in law result in conviction for either murder or manslaughter.

The A-G referred for the Court of Appeal’s opinion the questions whether the crimes of
murder or manslaughter could be committed where unlawful injury was deliberately
inflicted on a child in utero or on a mother carrying a child in utero where the child was
subsequently born alive but thereafter died and the injuries inflicted while in utero either
caused or made a substantial contribution to the death; and whether the fact that the death
of the child was caused solely as a consequence of the injury to the mother rather than as
a consequence of direct injury to the fetus could negative any liability for murder.

The Court returned the following answers:

i. Murder or manslaughter can be committed where unlawful injury is
deliberately inflicted either to a child in utero or to a mother carrying a child
in utero in the circumstances postulated in the question. The requisite intent to
be proved in the case of murder is an intention to kill or cause really serious
bodily injury to the mother. Such intention is appropriately modified in the
case of manslaughter; and
ii. The fact that the death of the child is caused solely in consequence of injury to
the mother rather than as a consequence of injury to the fetus does not

57
 negative any liability for murder and manslaughter provided causation is
proved.

The law appears to be admonishing us that to avoid a conviction for murder or

manslaughter of a child, ensure that the unlawful harm you inflict on it causes it to die
before it is birthed

Therefore, if your intention is to abort a pregnancy, make sure the life of the child is
effectively brought to an end en ventre sa mere i.e. in the mother’s womb. In that case, if
you are caught, you may be liable just for the offence of abortion

However, if your abortion attempt merely results in the child being expelled alive from
the mother’s womb and it dies after birth, then you will be staring a charge of murder or
manslaughter in the face

This is what happened in R v. West, where an attempted abortion led to premature

delivery and death of the child.

It was held that if the intention of causing an abortion a person does an act which causes
the child to be born earlier than the natural time and in a state much less capable of
living, and it later dies in consequence of its exposure, the person who put the child in
that situation is guilty of murder, notwithstanding the possibility of something being done
to prevent the death.

Apart from this, there are offenses relating of causing harm to child at birth and
concealment of birth or what we may term child destruction

In these circumstances, the act complained of may lead to the child’s death or otherwise

Thus, whoever intentionally and unlawfully causes harm to a living child during the time
of its birth shall be guilty of second degree felony
- section 60

The emphasis here is “during the time of the birth” of the child

The question then is: what period is “during the time of its birth”?

The time of birth includes the whole period from the commencement of labor until the
time when the child so becomes a person that it may be murder or manslaughter to cause
its death
- section 61(2)

When death occurs where harm is caused to a child during the time of its birth, or where,
upon the discovery of the concealed body or the child, harm is found to have been caused
to it, the law presumes that such harm was caused to the child before its death

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 - section 61(1)

Then there is interesting offence captured as Concealment of body of child at birth

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

This is not a strict liability offence

The mens rea is the intention to conceal the fact of birth, existence, or death, or the
manner or cause of the death

Section 62 must be read together with section 63

Therefore, in order to establish an offence under section 62, section 63 must be fully
considered

Section 62 creates the offence of concealment of body of child while section 63 explains
what may constitute concealment within the language of section 62, the nature of the
concealment and the kind of child in respect of which the offence may be committed
For a concealment to amount to an offence under section 62, it matters not that the
concealment was intended to be permanent or temporal
- section 63(1)

The abandonment of the body of a child in a public place is concealment if the purpose of
the abandonment is to conceal the fact of the child’s birth or existence
- section 63(2)

The offence does not arise where the child was less than six month’s old before its birth
- section 63(3)

This means that one may only be guilty of the offence if the child was more than six
months old in the mother’s womb before its birth

There must be an intention to conceal the birth, existence, or death of a child from the
whole world, other than the persons who abetted or consented to the concealment
- section 63(4)

Therefore, a concealment of the birth, death or existence of a child from a particular

person or persons only does not come under section 62

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For instance, as the illustration goes: A woman conceals from her father or mother the
body of her child. She is not guilty of concealment of birth unless she intended to conceal
it from persons generally

Donkor v. The Republic is the locus classicus on this offence

In that case, the Appellant, an 18 year old girl became pregnant by a man she claimed to
be her boyfriend. There was some interference with the pregnancy by this boyfriend. As a
result, the baby was expelled and it was found in a public latrine.

The Appellant explained that she went to the latrine and there, 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 of informing her of what had happened. The trial magistrate
found her guilty of the offence of concealment.

On appeal, Wiredu J., as he then was, held that the offence of concealment was not a
strict liability offence.

And that to succeed on the facts of the case, the prosecution needed to prove the
following:
i. that the Appellant was delivered of a baby,
ii. that she either secretly deposited it or abandoned it in the public latrine,
iii. that the fetus was six months or above, and
iv. that she deposited or abandoned the same with the view to concealing its birth,
death or existence from the whole world other than those who were
accomplices to the crime

What constitutes secret disposition and abandonment is a question of fact depending on

the circumstances

Genocide
Section 49A

Read and explain

Has anyone heard of eugenics?

Eugenics is a social philosophy that advocates the improvement of human hereditary

traits through various forms of intervention

The purported goals have variously been to create healthier, more intelligent people, save
society’s resources, and lessen human suffering

Earlier proposed means of achieving this end focused on selective breeding, while
modern ones focus on prenatal testing and screening, genetic counseling, birth control, in
vitro fertilization and genetic engineering

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Selective breeding of human beings was suggested as far back as least Plato

In its crudest form, eugenics involves racial cleansing, human experimentation and the
extermination of undesired population groups. These indices were associated with the
Nazi and other Regimes

Eugenics is not always associated with evil regimes

Eugenics is also an academic discipline

Indeed, the US Supreme Court upheld the constitutionality of Virginia Law allowing for
the compulsory sterilization of patients in state mental institutions in 1927

This was in the case of Buck v. Bell 274 US 200

The Appellant, a feeble minded daughter of a feeble minded woman, gave birth to a
feeble minded child. She was then sterilized under the direction of the superintendent of
the State Colony for Epileptics and Feeble Minded in Virginia. The operation was
performed by virtue of an Act which recites that the health of the patient and the welfare
of society may be promoted in certain cases by the sterilization of mental defectives. It
was argued that the Act was void under the Fourteenth Amendment as it denied the
Appellant due process of law and the equal protection of the law. Justice Holmes held
that:

We have seen more than once that the public welfare may call upon the best citizens for
their lives. It would be strange if it could not call upon those who already sap the strength
of the State for these lesser sacrifices, often not felt to be such by those concerned, in
order to prevent our being swamped with incompetence. It is better for all the world, if
instead of waiting to execute degenerate offspring for crime, or to let them starve for their
imbecility, society can prevent those manifestly unfit from continuing their kind. The
principle that sustains compulsory vaccination is broad enough to cover cutting the
Fallopian tubes…Three generations of imbeciles are enough.

This should not come to us as a surprise because this same judge had held in a previous
case that:

It is no sufficient condemnation of legislation that it favors one class at the expense of

another; for much or all legislation does that; and none the less when the bona fide object
is the greatest good of the greatest number. Why should the greatest number be
preferred? Why not the greatest good of the most intelligent and most highly developed?
The greatest good of a minority of our generation may be the greatest good of the
greatest number in the long run.

Under our law on Genocide, it is an offence punishable by death to resort to eugenics, i.e,
killing members of a group, deliberately inflicting conditions of life calculated to bring

61
physical destruction, imposing measures intended to prevent deaths, forcibly transferring
children of a group to another group

This means that a person may be guilty of the offence of genocide even if that person has
not actually killed a person

Does our Constitution sanction eugenics?

Suicide

There is no offence called suicide

For how do you punish a person who has successfully taken his own life?

What we have are two offences, namely:

i. abetment of suicide, and
ii. attempted suicide
- section 57

The abettor of suicide, whether or not the suicide is actually committed commits a greater
offence, first degree felony, than the attemptor of suicide, whose crime is a misdemeanor

So the abettor of suicide receives a stiffer punishment than the attemptor of suicide

Why is this so?

Why should this be so?

Abortion

The prohibition on abortion, like child destruction, is an area where the state uses its
police powers to protect the unborn

The provisions in the Code talk of abortion or miscarriage

Abortion used to be completely prohibited until the advent of PNDCL 102 that created
some exceptions as regards lawful abortion

So we now have lawful and unlawful abortion

What is abortion or miscarriage?

In medical science abortion is a term used to describe the event of the expelling the
developing ovum before the twelfth week of pregnancy; and miscarriage is applied to a

62
situation where the expulsion takes place between the twelfth and twenty-eighth week of
pregnancy

What then is abortion in law?

Under our code abortion or miscarriage is the premature expulsion or removal of

conception from the uterus or womb before the period of gestation is completed
- section 58(3)

Abortion or miscarriage may occur spontaneously – induced by natural causes, in which

case it is not the interest of criminal law

Or it may be deliberately induced – then it becomes a crime

This so where there is intentional destruction of the fetus in the womb, or an untimely
delivery brought

Section 58(1) creates the offence of abortion

Strangely, the law does not make the abortion itself a crime – the crime consists in an act
done with intent to procure or cause an abortion

The offence covers two cases or situations

- first, where a pregnant woman uses any means with intent to procure
her own miscarriage
- second, where anyone else unlawfully uses means, with such intent

In the second case, the offence is committed where the effort has been made for that
purpose even if the mother is not pregnant
R v. Titley

The drug or noxious substance administered to cause the abortion or miscarriage need not
be poisonous
R v. Hollis

Inducing a woman to cause an abortion is an offence

Inducing a woman to consent to causing an abortion is an offence

Aiding and abetting a woman to cause an abortion is an offence

Attempting to cause abortion is an offence

Obeng v. The Republic

Supplying or procuring any item or implement or drug knowing that it is intended to be

used to cause abortion is an offence

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The mens rea of the offence is intentional conduct

Lawful Abortion

For abortion to be lawful, the law specifies who may commit it, the circumstances under
which it may be committed and the location where it may be committed

Thus, by section 58(2) abortion is lawful if the person committing it is a registered

medical practitioner specializing in gyneacology or other registered medical practitioner
in a Government Hospital or a registered private hospital or clinic in the following
circumstances:

- where the pregnancy is the result of a crime – section 58(2)(a) – the

caveat here is that it must be requested by the victim or her next of kin
or the person in loco parentis – read together with section 42(d), this
provision implies that a 17 year old girl who wishes to undergo lawful
abortion may be prevented by the contrary wishes of her parents
- where the continuance of the pregnancy would result in injury to the
pregnant woman – section 58(2)(b) – the consideration here, as
Glanville Williams puts it, appears to be this: the woman is a
developed human being, sensitive to pain and anxiety. She is
established in the affections of her family, and upon her the welfare of
other children and of a husband may depend. Thus, it is far more
important to consider her life and health than that of a fetus,
representing only a child-to-be, which has not been fully formed,
cannot feel pain, cannot live outside the womb, and has not entered the
human community – the caveat here is that the woman must consent to
it, or if she lacks the capacity to consent, her guardian or next of kin
must consent to the abortion -
- where there is a substantial risk of abnormality or disease in the child
when born or later develop an abnormality – section 58(2)(c) – is this
not suggestive of eugenics, i.e. that abortion may lead to the
betterment of man’s genetic inheritance? Or is it a consideration for
the parents of the would be abnormal child so they would not be
blighted by having to rear a grossly defective child? Or is it a
consideration of the tax payer’s money that would be spent on it in
special health care and educational institutions? It should be noted that
the mere carrying of undesirable genes by the would be child will not
suffice – the abnormality or disease must be a serious one
- it should also be noted that any act which is done in good faith and
without negligence, for the purposes of medical or surgical treatment
of a pregnant woman is justifiable, although it causes or is intended to
cause abortion or miscarriage, or premature delivery, or the death of
the child – section 67(2)

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Talk about contraceptives and whether their effect is abortifacinet

If these birth control methods are abortifacient, are their application illegal?

Should we then provide expressly in our law that nothing done to a fetus is abortion if it
is done before implantation?

NON-FATAL OFFENCES AGAINST THE PERSON

Assault

Historically speaking, the object of the law, in giving a remedy for assault, is to offer the
victim some means of vindicating his own dignity and security without recourse to
fighting

However, presently offenders are rarely prosecuted for this offense if no great harm is
done. It appears that assault is now treated as an everyday occurrence and so the
prosecutors do not bother themselves with it if no serious harm has been done

Assault in criminal law is wider than in civil law where assault is merely descriptive of
psychological discomfort by an apprehension of unpermitted contact

Criminal assault includes assault simpliciter, battery, and unlawful detention

So under our Code, assault may be one of three things:

 assault and battery
 assault without actual battery; and
 imprisonment – false imprisonment
 section 85(1)

Assault is lawful if it is justified on any of the grounds in Chapter 1 of Part II of the Code
- section 85(2)

The required mental element, mens rea, is intentional conduct – in the case of assault of
battery, it must be with the intention of causing harm, pain, or fear, or annoyance to the
person assaulted or exciting him to anger – section 86(1) – in the case of assault without
actual battery, it must be intentionally putting the person assaulted in fear of an instant
assault and battery – section 87(1) – in the case of imprisonment, it must be with the
intention of detaining the person assaulted in a particular place – section 88(1)

Since the actus reus is unpermitted contact, proof of consent may undermine the actus
reus – the reason is that if the contact is permitted then more likely than not, nothing
wrong has been done

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The prosecution need not specify the specific assault – i.e. whether assault and battery,
assault without actual battery or imprisonment – the nature of the assault may be deduced
from the facts of each case

Assault and Battery

To constitute assault and battery it must be established by the prosecution that without the
consent of the other person, and with the intention of causing harm, pain, or fear or
annoyance to the other person exciting him to anger, the accused forcibly touched that
other person or caused any person, animal, or matter to touch that other person
- section 86(1)

So the contact may be direct or indirect through an involuntary agent

On the latter point, the case of DPP v. K (A Minor) [1990] 1 WLR 1067 is very
instructive. It was in the context of a chemistry class. One boy went to the lavatory to
wash some acid off his hand. He took with him, very foolishly, a boiling tube of
concentrated acid. He wanted to test the reaction of the acid with toilet paper, but then he
heard footsteps outside. In a panic he poured the acid, or what remained of it, into the
upturned nozzle of the hand drying machine in the lavatory and went back to the class.
Another boy went to the lavatory to wash his hands. He turned on the dryer and the acid
was injected into his face, leaving him permanently scarred.

It was held that it was clear that the first boy knew full well that he had created a
dangerous situation and the inescapable inference was that he decided to take the risk of
someone using the machine before he could return and render it harmless or that he gave
no thought to that risk.

The mens rea requirement is very important – and as we said previously, in this
circumstance, the mens rea consists of intentional conduct – the contact must be
intentional – the absence of the element of intention may lead to the acquittal of the
accused on the charge

There appears to be two degrees of intention here – both of which must be present

The contact must be intentional and this intentional direct contact or indirect contact
through an involuntary agent must be with the intention of causing harm, fear, pain or
annoyance or exciting to anger

Therefore, a forcible touch alone, without proof of intention on the part of the accused to
cause harm, pain or fear or annoyance to the victim or exciting the victim to anger,
cannot support a charge of assault and battery

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In the other words, the accused must touch the victim hostilely – for example, if A
forcibly kisses B without B’s consent the presumption would be that A intended to annoy
B or force him to anger unless A can rebut the presumption

What if A. aims at B. but accidentally hits C. Is A. liable for an assault on C.?

The rule is that A. is guilty to the same extent as if he had purposed to hit C.
- refer to section 11(5) and the illustration

But what if a man aims at an animal and hits a man instead. Will he be guilty of an
assault of the man?

The requirement of “forcible touching” in section 86(1) does not mean that the contact
should have been done vigorously or violently

“Forcible touching” looks to the lack of consent

Therefore, as long as the contact is against the integrity of a person, it is enough to found
liability in the perpetrator

The use of any degree of force against the person will suffice. Thus, the acts of spitting
on a person and kissing without consent amount to assault and battery

In other words, once the contact is unpermitted, there is notional forcibility

The element of consent is therefore important

Thus, if the contact was consensual, the accused may be exculpated from liability

On this point, see the case of Comfort v. The Republic

In that case, the prosecution's case, in a nutshell, disclosed that the complainants, Peter
Adjei and Abena Frema had attended a spiritualist meeting which the first appellant had
conducted at her house to exorcise evil spirits and that in the course of the meeting the
first appellant, who is acknowledged by the group as a prophetess and was therefore the
chief actress in the drama, had hit the head of Abena Frema several times with a stick in
her effort to exorcise Abena Frema of her evil spirit. Peter Adjei, went and held the stick
and the second appellant hit him on the chest and first appellant hit him on the head.

The evidence of the first appellant showed that she had no knowledge of what happened
that particular night of the alleged assault. It was also evident from her testimony that
when she conducts her prayer meetings she at times falls into a trance and she does not
realize what she does or says.

The trial magistrate convicted the appellants on a charge of assault. On appeal, the High
Court observed that the evident established that the complainant voluntarily attended the

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first appellant's prayer meeting so that the evil spirit in her would be exorcised. She
willingly submitted herself to stand in the nude before the crowd. She offered no
resistance when, in the process of casting away the evil spirit, the first appellant had to hit
her with the stick. If she had any objection to raise the only sensible thing she could have
done was to have withdrawn herself away from the meeting.

Therefore, Osei Hwere J., concluded that: by section 86 (1) of Act 29, a person commits
an assault and battery when, essentially, there does not exist the other person's consent.
Consent, therefore, generally negatives any offence of assault. I say "generally" because
I concede that the victim's consent cannot be a defense for an assault if the blows inflicted
are, in the opinion of the court likely to cause bodily harm. "Bodily harm," of course,
includes, any hurt or injury calculated to interfere with the health or comfort of the victim
and, although it need not be permanent, it must be more than merely transient and trifling.

Therefore, the principle is that the consent of the victim to an assault will inure to the
benefit of the perpetrator if it is transient and trifling

Thus, the accused will be held liable for assault, even if the victim consented, if the
assault caused bodily harm

The rule then is that one cannot consent to being harmed

The authority for this proposition is section 42(b) of Act 29 which provides that: “The
use of force against a person may be justified on the ground of his consent, but 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”

Thus, in R v. Donovan (1934-39) 30 Cox CC 187, the appellant, for the purpose of
gratifying a perverted sexual passion, administered a severe caning to his partner. He was
prosecuted for assault and he pleaded consent. It was held that consent can never be an
available defense to an unlawful act, and that to beat another person with such degree of
violence that the infliction of bodily harm is a probable consequence, is an unlawful act

However, it is a sufficient defense to a charge of assault that the accused and the victim
were engaged in a game or sport that is authorized by law and is conducted in a way not
serious or dangerous to life

Thus, if the game or sport is dangerous to life there can be no defense to any act of
assault involving grievous harm on the grounds of consent – see the case of R v. Coney
(1882) 8 QBD 534 @ 539 and 549

This is also inherent in section 42 itself

Therefore, where two persons agree o fight for any purpose unauthorized by law and one
of them injures the other by sheer use of superior force or strength, the stronger party

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may properly be charged with assaulting the weaker party and consent cannot afford a
defense because consent to do what is unlawful is itself void
- see section 38

It is important to note that the general rule set out in section 86(1) is qualified by or
subject to the provisions in section 86(2)

Therefore, where consent has been obtained by deceit, an intention will be inferred, to
make the act of assault a criminal assault – section 86(2)(a)

Thus, where for instance a medical officer, by means of a false pretence that he was
giving medical treatment to a girl of 14, had sexual intercourse with her, the latter
believing in good faith that the medical man was thereby treating her of her complaint
and therefore offered no resistance to the act, this was held to be clear evidence of an
intention to commit assault and battery and in fact rape on the part of the medical man –
see the cases of R v. Case (1850) 1 Den. 850 and R v. Flattery (1877) 2 QBD 410

And you also remember the celebrated case of R v. Williams

A person who is insensible or unconscious or lacks the capacity to give consent will be
deemed to be a victim of assault
- section 86(2)(b)

We have said that the prosecution need not prove that the unpermitted contact was violent

Thus, the slightest touch suffices for an assault and battery, if the intention is such as is
required
- section 86(2)(c)

So as the illustration goes, if A pushes B so as to cause him to fall into water. ‘A’ is
guilty of an assault and battery although the push is so slight as not of itself to be
material

The whole basis of assault and battery is unpermitted contact or touch – what then
amounts to being touched?

A person is touched if her body is touched, or if any clothes or other thing in contact with
her body or with the clothes upon her body are or is touched, although her body is not
actually touched
- section 86(2)(d)

Therefore, the mere fact of causing damage to the complainant’s skirt or blouse or
trousers or shirt is sufficient to support a charge of assault and battery

The rationale is that clothes are so intimately connected with the wearer that offensive
conduct against clothes is likely to be taken as an affront to the wearer

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The basis of the offence is the desire of the law to preserve the peace

With respect to the question of intent, a person will be held liable not only for
intentionally causing harm, pain or fear, or annoyance by the force or manner of the
touch itself, but also for forcibly exposing the victim or causing the victim to be exposed,
to harm, pain, fear, or annoyance from any other cause
- section 86(2)(e)

Assault without Actual Battery

Assault without actual battery is perhaps the only crime in which the evil of the act
consists merely in creating fear or apprehension in the mind of the victim

A person commits an assault without actual battery on another person, if by an act

apparently done in commencement of an assault and battery, he intentionally puts the
other person in fear of an instant assault and battery
- section 87(1)

The essence of the offence is that by his act or conduct the accused person intentionally
puts the other person in present fear of assault and battery

There are two separate states of mind to be considered: that of the victim, and that of the
actor
1. the victim must expect that force is about to be applied to him, and
2. the actor must intend to create that expectation

No blow need be struck

The actor need only do something inducing the victim to believe that he will instantly
receive a blow or other application of force unless he does something to avoid it

In Bruce-Konuah v. The Republic [1967] GLR 611, a quarrel ensued between the
Appellant and his neighbors over a hedge bounding their respective lands. The appellant
was a medical doctor. At a point in the quarrel, the neighbor’s wife, according to the
prosecution, said to the appellant that certain nurses had said that he had been
misbehaving at the hospital. This apparently was too much for the appellant to bear
because upon hearing it, he jumped over to the neighbor’s side of the hedge and chased
the neighbor’s wife

The neighbor’s wife alleged that the appellant slapped her. This was denied by the
appellant. The story of the neighbor’s wife appeared to have been accepted by the trial
magistrate because he convicted the appellant for assault and battery.

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On appeal, it was held that y Act 29, s. 85, "assault" covered assault with battery and
assault without battery. On his own showing the appellant was guilty of assault without
battery and his conduct in rushing at the complainant with apparent intention to cause her
harm and intending to put her in fear of danger, fell squarely within the illustration of
assault in Act 29, s. 87 (2)(b)

This is the principle that a person can make an assault without actual battery by moving,
or causing any person, animal or matter to move, towards another person, although he, or
such person, animal, or matter, is not yet within such a distance from the other person as
that an assault and battery can be made
- section 87(2)(b)

This is illustrated in the Code as follows:

A. at a distance of 10 yards from B. runs at B., with the aim of apparent intention of
striking him, and intending to put B. in fear of an immediate beating. Here A. is guilty of
an assault, although he never comes within reach of B.

In a case of assault without actual battery, the apprehension of an instant assault and
battery must be reasonable although, as we said previously, the victim need not be in
striking distance

Thus, from all the circumstances, it must be apparent to the other person that the accused
has the ability or means to carry out the assault and battery

Therefore, 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 such a kind or
in such a condition as that an assault and battery could be made by means of them
- section 87(2)(a)

Hence, as the illustration goes, if A. points a gun at B. with intent to put B in fear of
being shot instantly, A. is guilty of assault without actual battery even though to A’s
knowledge the gun is unloaded or that he in fact has no intention to shoot at B.

Also, an assault without actual battery can be made on a person although he can avoid
actual assault and battery by retreating, or by consenting to do, or to abstain from doing,
an act
- section 87(2)(c)

This means that if a person does any act in commencement of an assault and battery on
another person, the fact the person utters words indicating that he can avoid actual battery
does not unmake the assault

Therefore, a conditional threat amounts to assault – “If you don’t move I’ll break your
neck”

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As the illustration goes: A. being near B., lifts a stick and threatens that he will at once
strike B., unless B. will immediately apologize. Here, A. has committed assault

Finally, it would appear that mere words alone cannot suffice as assault without actual
battery, unless the words are accompanied by some action apparently indicating an
intention to commit an assault and battery

This appears to be effect of the phrase “if by any act apparently done” in section 87(1)

Thus an insult, even if it is an insult by conduct, does not amount to an assault

Nothing short of a threat is sufficient

Imprisonment

A person imprisons another person if, intentionally and without the other person’s
consent, he detains the other person in a particular place, of whatever extent or character
and whether enclosed or not, or compels him to move or be carried in any particular
direction
- section 88(1)

This is subject to the circumstances enumerated in section 88(2)

It is unnecessary for the prosecution to prove actual violence

Cruel customs or practices in relation to bereaved spouses

Section 88A is intended to halt cruel customs like “kunayo”

Thus, any such practice is cruel in nature and attracts criminal sanctions if it amounts to
assault and battery, assault without actual battery or imprisonment

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Criminal Harm to the Person

Causing Harm

Section 69

Since assault is merely making contact with the person’s body, it is characterized as a
misdemeanor

However, the offence of causing harm is a second degree felony – making its penalty
graver than assault – meaning that by section 296(2) and (6) of Act 30, the punishment
for Causing Harm is a term of imprisonment not exceeding ten years with hard labor

This is because making contact with a person’s body is deemed less serious than breaking
his skin

So like any rational legal system, our criminal law grades attacks upon the person (not
resulting in death) in categories

At a low order of gravity are assaults in which bodily harm is not an element – these are
what we treated last week

And then we have crimes of intentionally causing injury – which we will discuss today

Before we determine the scope of the offence of causing harm, we must first discuss what
constitutes harm – and for this we go to the definition of harm under section 1

Section 1 provides that “harm” means a bodily hurt, disease, or disorder whether
permanent or temporary

So, with respect to causing harm, the skin of the victim must be broken – but this need
not amount to grievous bodily harm –

It also appears from the definition of harm in section 1 that inflicting a disease or disorder
on the victim will fix the accused with liability

So what will be the position of the law in the following scenario:

Kofi, knowing fully well that he suffers from a highly contagious disease, say HIV or
Gonorrhea, transmits it to Akua by having unprotected sex with her. Is Kofi liable for
causing harm?

There is no Ghanaian case law on his question

The English courts have, however, battled with this question

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The leading case is the decision of the Court for Crown Cases Reserved in Clarence 22
QBD 23; [1886] All ER 133

In that case, Clarence, who had communicated venereal disease to his wife, was indicted
under section 20 of the English Offences Against the Person Act. It was held that he was
not guilty because an infliction under the section could only be by way of an assault.
Stephen J opined that: “The words appear to me to mean the direct causing of some
grievous injury to the body itself…I think the words imply an assault and battery of
which a wound or grievous bodily harm is the manifest immediate and obvious result.”
Here there was assault, because an assault presupposes lack of consent, and the wife had
consented.

What you should bear in mind is that the English Act has two sections on this point –
sections 20 and 47

Section 47 on its face requires an assault while section 20 does not require an assault –
however, in this case their Lordships read section 20 as requiring an assault

Perhaps their Lordships just disliked the idea of bringing the marital bed into the criminal
law

Whatever it was worth, the legal position taken by their Lordships in Clarence has been
overruled by the English Court of Appeal in subsequent case decided in 1983

A careful reading of our section 69 appears to suggest that it does not require anything
further than the infliction of harm

But what about a possible contributory negligence on the part of Akua for having
unprotected sex?

This may not inure to the benefit of Kofi since it is arguable that Ama’s ignorance or
mistake was as to the consequences of the unprotected sex, and not the act of unprotected
sex itself

Surely, one can communicate a disease to another person without assaulting them

Policy problems may arise where a person is charged with causing harm as a result of his
intentional transmission of a disease to another

In England, it is said that the charge against Clarence was unprecedented since millions
of men and women infect their consorts yearly with venereal diseases without being
prosecuted

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The policy in England appears to be against prosecuting for infectious disease, because of
the risk that prosecutions may inhibit people from seeking advice or reporting contacts.
This policy is especially strong in the case of husband and wife

What about the infliction of psychological harm?

The case of R v. Ireland (1997) Crim LR 434 suggests that psychological harm is
sufficient

However, it appears from the definition of harm in section 1 that mental distress alone
may not be sufficient unless accompanied by a mental disorder

On this point section 81(b) is even more instructive – it provides that: disease or disorder
which a person suffers as the inward effect of grief, terror, or any other emotion is not
harm caused by another person, although such grief, terror, or emotion has been caused
by that other person, whether with intent to cause harm otherwise

So, under our law, psychological harm will not do

Generally, harm involves a wound, but by the tenor of the definition in section 1, it need
not always be the case

The harm must have been caused intentionally and unlawfully

This means that all the prosecution need to prove is to adduce evidence to bring the act
that caused harm within any of the provisions of section 11, which deals with intention
and also establish that the act was done without any justification recognized under our
criminal law
- see section 76

A case in point is Brobbey v. The Republic

In that case, four policemen went to the complainant’s store and accused him of selling
pall mall cigarettes above the controlled price.

Even though he denied the alleged offence one of them held him and asked him to
accompany him to the police station and when he resisted, the other three joined the first
in beating him up, tearing his knickers and pants and stealing an amount of money he had
on him. When his wife came to his rescue, she was bitten by the first policeman.

It also appeared that the complainant attempted refused the invitation to accompany the
policemen to the police station, and he forcibly attempted to forcibly retrieve the pack of
cigarettes that had been picked up. In the process, the complainant ripped the ID card of
the first policeman.

The medical report tendered by the prosecution showed that both the complainant and his

75
wife had sustained abrasions in their confrontation with the police. The trial magistrate
found that, (i) the force used by the police was excessive and (ii) they tore the
complainant’s knickers and stole his money. He therefore sentenced each of them to one
month's prison term with hard labor.

On appeal, Twumasi J., (as he then was) observed that an essential element for the
constitution of the crime of causing harm contrary to section 69 is that the harm or
damage must not only be intentional but also unlawful. Mere harm or damage without
more is insufficient.

Twumasi J., continued: To say the least, the learned magistrate's conclusions bordered on
the perverse. Speaking for myself, I am unable to infer from the evidence that the
appellants employed excessive force to overcome what I consider as unwarranted
resistance offered by the [complainant] and his wife. The wife's intervention was an
obtrusive venture calculated to interfere with the appellants in the execution of their
lawful duty to arrest the [complainant]

The range of harm has been extended to cover female circumcision or female genital
mutilation (FGM) by the passage of Act 484

Until the advent of Act 484, it was not ordinarily considered that FGM could found a
basis for criminal liability

But now, a person who performs FGM commits a second felony and liable to
imprisonment of not less than three years
- section 69A

Read the extract

Then again, if you intentionally hinder a person from escaping from a wrecked vessel, or
from lawful personal protection or from another person against harm, you will be deemed
to have intentionally caused harm to him if he suffers any harm – section 83

Where you use an offensive implement or weapon to cause harm, the degree of
culpability is raised to a first degree felony
- section 70

So the law views causing harm by such means with greater seriousness than merely
causing harm simpliciter

Proof that the weapon is offensive is essential because it is the only distinguishing feature
between sections 69 and 70

If the weapon is offensive the fact the injury caused by it is slight does not inure to the
benefit of the accused

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There is no statutory definition of “offensive weapon”

The offensiveness of a any weapon depends on the circumstances

Some weapons are on the face of it or intrinsically offensive – these include knives, guns,
clubs and things of that character

Some implements are not so intrinsically offensive and it will depend on the manner in
which they were employed

So it is not every object used against another person that may properly be described as
offensive and therefore the offence of causing harm with the use of an offensive weapon
is not committed merely because the accused used, instead of using his hand, used an
object in committing the act

The culpability of the accused depends on the nature of the object or the manner in which
it was used

One test for determining whether an object is offensive is whether it can be used for an
aggressive purpose

In the State v. Yaw Pramang it was held that a cutlass is an offensive weapon inasmuch
as it can be used for an aggressive purpose

The law also criminalizes mere threats to cause harm or death to another person

To be culpable for threat of harm, it must be established that the accused intended to put
the victim in fear of an unlawful harm
- section 74

To be culpable for threat of death, it must be established that the accused intended to put
the victim in fear of death
- section 75

By virtue of section 17(2), an expression referring to a threat includes an offer to abstain

from doing, or to procure any other person to abstain from doing, anything the threat of
which is a threat of criminal force or harm

So, one text writer explains that if, A. is holding firmly to a ladder in order to enable B.
climb safely to the roof of a building and the circumstances are such that the inevitable
result of A’s abstention from holding on to the ladder would be physical harm to B. if he
falls, it amounts to threat if A., with intent to put B. in fear of criminal harm, threatens to
abstain from holding to the ladder

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Under sections 69, 69A and 70, the requirement is that the accused must have engaged in
an overt or positive act

Yet under our law, harm may also be caused by a negative act or omission – so lets turn
to

Causing Harm by Omission

Unlike harm caused by acts of commission, a person is only culpable for harm caused by
omission if he is under a duty to act - so if the accused was not under a duty to act, no
liability arises
- section 77

So, the law does not require us to be “Good Samaritans” if we are not under a duty to act

A duty to act may arise by imposition of law, or by voluntary assumption, or under a

contract, or by virtue of a position, or by a lawful order of a court, or by a lawful order of
a person
- section 78

So, under what circumstances would a person be under a duty to give another person
access to the necessaries of life? We turn to section 79

See section 80 for explanations with respect to office

We have discussed causing harm by overt acts and also causing harm by omission – lets
turn to:

Negligently Causing Harm

Section 72

If you negligently and unlawfully cause harm, the punishment is lesser than if you
intentionally cause harm

All the prosecution need to establish is that although the accused did not intend to cause
harm, yet he caused the harm by a voluntary act, done without the skill and care that are
reasonably necessary under the circumstances and that the accused did so cause the harm
without any justification recognized under our criminal law
- sections 12 and 76

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

78
See section 73 for negligently causing harm while operating or engaged in a dangerous
thing

By virtue of section 82 where a person acts in good faith in respect of the provision of
medical or surgical treatment, but intentionally causes harm to the person under
treatment, which is due to a lack of the exercise of reasonable skill and care, or the person
knows or ought to have known that his action was plainly improper, he will be deemed to
have negligently caused the harm but not intentionally – the effect is to reduce the
offence from a second degree felony to a misdemeanor

It is also an offence if you unlawfully abandon or expose a child of under twelve years to
danger

Or if you unlawfully expose a physically or mentally handicapped child to danger or you

abandon a physically or mentally handicapped child in a manner that is likely to cause
harm to the child
- section 71(1)

It appears that under section 71(1)(b), the child should be under eighteen years

See section 81 for exceptions to causing an event

Kidnapping

Kidnapping is punishable as a second degree felony – section 89

The ingredients are spelt out under section 90, namely:

- imprisoning a person and taking him out of the jurisdiction of the court
without his consent – jurisdiction means a law district, in this instance
it appears to refer to taking the person out of the country
- or unlawfully imprisoning a person within the jurisdiction in such a
manner that prevents him from applying to the 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

It should be noted that no specific intent or motive is required

It should also be noted that there is no specification of the age or sex of the victim – so a
person of any age or gender may be the victim of kidnapping

In R v. D it was held that a father could be liable for kidnapping his own son if there is a
court order granting custody to the mother

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Then, in R v. Reid, the appellant was convicted of kidnapping and maltreating his wife
although they had cohabited for many years

Abduction

Originally, the creation of the offence was intended to protect females under age 18 –
however, by virtue of Act 554, the protection has been extended to males under age 18

Thus, whoever abducts a child under the 18 years of age commits a misdemeanor
- section 91

The law views abduction as a lesser offence than kidnapping

The age requirement is an important factor to found liability

See Denyo v. The State

The actus reus of the offence consists of one of two things

1. either unlawfully taking the child from the lawful possession, care or charge of a
person, or
2. detaining the child and preventing him or her from returning to the lawful
possession, care or charge of a person
- section 92(1)

The mens rea of the offence consists of one of three elements, namely:
1. intent to deprive a person entitled to the possession or control of the child, or
2. intent to cause the child to be carnally known by any other person, or
3. intent to cause the child to be unnaturally carnally known by any other person
- chapeau of section 92(1)

In all these instances of the act and the accompanying criminal intent, it must also be
established that accused knew, or had grounds to for believing that the child was in the
possession, control, care, or charge for the time being
- section 92(3)

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

In most cases of abduction, it is the accused that takes the initiative – yet it would not
inure to the benefit of the accused where the victim goes to the accused willingly and the
accused keeps or prevents him/her from leaving

This implies that the consent of the victim is wholely immaterial

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Mistaken belief concerning the age of the victim is immaterial

In 2005, Parliament passed an act, the Human Trafficking Act, Act 694

This Act seeks to prevent and reduce the occurrence of human trafficking

By section 1(1), human trafficking means, inter alia, the recruitment, transportation,
transfer, harbouring, trading or receipt of a persons within and across national borders by
the use of abduction

The act prohibits human trafficking and sets the penalty at not less than five years –
section 2

Also under Act 694, if you provide a person for the purpose of trafficking, you have
committed an offence
- section 3

Indeed, you are under a duty to inform the authorities if you have information concerning
trafficking

Failure to inform makes you liable for a fine of not less than 250 penalty units or a term
of imprisonment not less than 12 months or both

Child Stealing

Initially, the offence of child stealing sought to protect children below the age of twelve –
But now, by virtue of Act 554, a person who steals a person under fourteen years,
whether with or without his/her consent commits a second degree felony
- section 93

It must be borne in mind that the gender of the victim of child stealing is immaterial

It should also be noted that it is no defense for the accused to assert that the victim
consented to being stolen

What then amounts to child stealing?

- sec 94 read

Therefore, for a person charged with child stealing to be convicted, it must be proved
strictly, that the victim was under fourteen years

Indeed, it does not matter that the victim deceived the accused as to his/her age – the
accused will still be liable
- see the dictum of Erle, CJ in R v. Timmins

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So, if it is proved that the victim was fourteen years of age or more, the accused is
entitled to an acquittal

But if the victim was indeed under fourteen years, it is no defense for the accused to
assert that he did not know or believe the victim to be under fourteen years or that he had
no means of knowing his age
- see R v. Robins

Apart from the age requirement, in order to convict the accused, it must also be
established, that:
- the accused unlawfully took or detained the victim with intent to
deprive the victim of the possession or control to which another person
is entitled, or
- that the accused unlawfully took or detained the victim with intent to
steal anything on or about the body of the victim, or
- that the accused unlawfully took or detained the victim with intent to
cause harm to the victim

The again, if it is shown that some person, other than the accused, was entitled to the
possession or control of the person stolen, it is not necessary for the prosecution to prove
that the person stolen had been taken from the possession, care or a charge of a person
- section 94(2)

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

The question that must be answered is this:

"Do the circumstances in which the accused was found with the child point necessarily to
his guilt, and to no other logical conclusion."
- R v. Djomoh [1960] GLR193

In that case, it was stressed that the explanation which had repeatedly been given by the
appellant – that the child was showing him to a certain house – 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. Therefore, the conviction was quashed

Special Provisions with respect to the offences of Abduction and Child Stealing

As we said previously, on a charge of abduction or child stealing, it is no defense for the

accused to assert that the victim consented – it also suffices if the accused persuaded,
aided, or encouraged the victim to depart or not to return
- section 95(1)(a)
- see also R v. Robbins

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An intention merely to temporarily deprive a person of the possession or control of the
person taken or denied, for however short a time is enough to fix the accused with
liability for abduction or child stealing, as the case may be
- section 95(1)(b)
- see also R v. Baillie

On the other hand, it is a good defense, on a charge of abduction or child stealing, that the
accused took the child in the belief that he was entitled by law as a parent or guardian or
by virtue of any legal right, to take or detain the child for the purposes of which he took
or detained the child
- section 95(1)(e)

So as the illustration goes, 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. The mother has not committed the criminal offence of abduction, although the
agreement is invalid

On another score, on a charge abduction or child stealing, it is no defense for the accused
to assert that he did not know or believe, or had the means of knowing that the age of the
victim was under 18 or 14, as the case may be
- section 95(2) – which is the second part of section 95(1)(e) of what
you have

Whatever be the case, the accused is not exempted from liability for abduction or child
stealing as long as he took or detained the victim for an immoral purpose
- section 95(2)

Child Abandonment

Section 96

There are two situations under which a person may be liable for the offence of
abandonment of infant
1. where the person is bound by law, or an agreement or employment to keep charge
of the infant, and
2. where the person is unlawfully in possession of the infant

In the first situation, the person is liable, if being bound by law, an agreement or
employment to keep charge of or maintain a child under five years, abandons the child

In the second situation, the person is liable if being in unlawful possession of the child, he
abandons it

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It should be noted that section 96 has been reformulated by the deletion of the phrase
“any such” – discuss the possible change in meaning

There is not duty on the prosecution to prove any intent on the part of the accused – thus,
mere act of abandonment is enough
It has been explained that “abandon” is to leave the child to its fate
- R v. Boulden

In the situation where a person is bound by law to keep charge of or to maintain the child,
the law appears to be that the accused need not be the one who initially left the child to its
fate – but that if he becomes aware that the child has been left to its fate, he is duty bound
to retrieve the child from that state – and that, liability arises for failure so to retrieve the
child from that state
- the authority for this proposition is R v. White

In that case, a mother of a child under two years of age brought it and left it outside the
father’s house (she not living with her husband, the father of the child). He was inside the
house, and she called out:
“Bill, here’s your child; I can’t keep it. I am gone.”
The father some time afterwards came out, stepped over the child, and went out away.
About an hour and a half afterwards the father’s attention was again called to the child
still lying in the road. His answer was:
“It must bide there for what I know, and then the mother ought to be taken up for the
murder of it.”
When his attention was called to it again, he said:
“I will not touch it; those that put it there must come and take it.”
Later, the child was found by the police in the road, cold and stiff.

The father contended that he did not abandon the child.

The Court of Crown Cases Reserved convicted him for child abandonment. Bovill, C.J.
expressed himself thus:
Now, the father was entitled to the custody and possession of the child and he was
bound to maintain and provide for it, and to protect it, both morally and legally.
The prisoner was aware that the child was lying at his door, and there was clear
evidence that he knew it was there, and therefore he had the opportunity of
protecting it…The relationship of a father as regards his duty to his child is
different from that of any other person…

SEXUAL OFFENCES

Rape

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Initially the offence of rape carried a sentence of three years imprisonment or half a
million cedis fine

Presently, with the advent of Act 554, the offence of rape is a first degree felony carrying
a sentence of not less than five years and not more than twenty-five years
- section 97

So what is rape?

By section 98, “rape is the carnal knowledge of a female of sixteen years or above
without her consent”

This implies that as long as a person is sixteen years or above, you can have sexual
intercourse with them

It should be noted from the onset that in Ghana the offence of rape is gender specific i.e.
– a man cannot be raped, nay not even by his fellow man – that comes under unnatural
carnal knowledge that carries the same sentence as rape – and more importantly, a
woman cannot be the perpetrator of rape – a woman cannot rape a man

Why should it be so?

Is it not physically possible for a woman to rape a man?

In some jurisdictions, the definition of rape has been amended by the substitution of
“female” by “person” to render the offence gender neutral

The possibility of a man being raped by a woman does not lend itself to easy acceptance
because it is largely because it is thought that a man cannot be overpowered and ravished
by a woman or that as long as the man maintains an erection he is signifying his consent
to be bound the sexual act with the woman

However, the problem associated with these two excuses is that the arguments
presuppose that the lack of consent is always manifested by the use of force and also that
consent once given – in this case – by the erection of the man’s sexual organ – cannot be
subsequently revoked

But this is not the effect of our law on rape – for as we will discuss later, consent need
not vitiated by the use of force alone – consent may be vitiated by fraud, where the other
person obtained the consent by the resort to fraudulent means

Then again, as we shall see soon, under our law consent that has been given initially, may
be subsequently be revoked before sexual intercourse is over

So is it not possible for the man’s consent to sexual intercourse with the woman to have
been obtained by fraudulent means and that if the man knew of the actual state of affairs
he would not have engaged in the sexual intercourse with the woman?

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Consider also the following scenario:

Kofi and Ama are engaged in sexual intercourse. To make the act more interesting, Kofi
agrees to be tied to the bed by Ama. Ama at all material times lies on top of Kofi, who is
facing up, hands tied. After a while, Kofi feels a sharp pain in his lower abdomen and
tells Ama to get off him and untie him. Ama refuses and continues with the sexual act till
she attains an organism

Is this not a clear case of Kofi revoking his consent to the sexual encounter with Ama?

On another score, if you are to ask Kofi why he still maintained an erection when he
clearly did not want to continue with the sexual intercourse with Ama, is this not a
simplistic and an unhelpful way of approaching the issue since it amounts to asking a
female rape victim why she was and remained lubricated if she was not a consenting
party to the act?

The tragedy of a man who alleges that he has been raped by a woman is compounded by
the position of our law that the least degree of penetration is enough to constitute rape.
This is because in his case, the alleged female rapist did not penetrate him. He did the
penetration although unwillingly.

So it will mean that since she is not physically capable of penetrating him and in fact did
not penetrate him, she cannot be guilty of rape

But should we not be realistic and take into consideration the biological shape of the
sexual organs of the two sexes – that is, that while the male organ is designed to
penetrate, the female organ is designed to receive?

In that case, would it then not be prudent to say that where a man alleges that he has been
raped by a woman, the consideration should not be penetration, but that the least degree
of reception by the woman of the man’s sexual organ suffices?

Well, as it stands now, under Ghanaian law, a woman cannot be charged with rape

Now lets discuss the elements of the offence of rape

It should be noted that rape has to do with carnal knowledge of a female – this implies
that the sexual act must be per vaginam – hence forcible buggery will not do – fellatio
(oral sex) too will not do – these acts fall under unnatural carnal knowledge
It is essential for the prosecution to prove penetration in order to succeed on a charge of
rape

However, the degree of penetration by the male organ of the female organ is irrelevant –
therefore the least degree of penetration suffices for the accused to be fixed with liability
- section 99

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So the accused is liable as long as the prosecution show that any part of the virile organ
of the accused was within the labia of the woman

Then again, there is no need for the prosecution to prove the emission of semen by the
accused – that is, the fact that the accused did not ejaculate does not mean he is
exculpated from liability
- see R v. Marsden

A very important factor in rape cases is the element of consent since consent or the lack
of it forms the basis of the offence of murder

The issue of consent in rape cases can be very problematic – some complaints of rape are
false, since they woman may in fact have consented

For instance, an adolescent girl who consents to intercourse may, to placate her parents,
assert that she did not consent – the parents may then complain to the police and the girl
feels compelled to keep her lie

There is also the danger of a false allegation being made out of spite, when the man was
in fact a lover who jilted the woman, or who slighted her in some way

Consent is a complete defense to a charge of rape – so the prosecution must prove

absence of consent on the part of the female alleged to have been ravished

Where it is clear that consent was lacking, the task of the prosecution is not great

However, the prosecution’s task to prove lack of consent becomes daunting where it is
not so clear whether the female consented

In such cases, the prosecution may prove any of the situations under section 14, which
vitiates consent

Sometimes it is difficult to distinguish between consent in the ordinary sense on one hand
and mere submission on the other hand

So for instance, when the complainant was asked in a recent English case, Barbour v.
HMA, whether she consented, she replied: “It depends what you mean by consent.”

Smith and Hogan note that the distinction between consent and submission is ‘so vague
that both judges and juries may have quite different ideas as to its application’

Under Ghanaian law, consent is void it is obtained by means of deceit or of duress

- section 14(b)
Consent is obtained by deceit or duress if it would have been refused but for the deceit of
duress

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 - section 14(f)

In the case of consent obtained by deceit the overriding question is: “would the victim
have agreed to sexual intercourse if the facts were truly known to her?”

If the answer is negative, the accused will be liable

- see R v. Williams
- The Queen v. Flattery

So it is rape if a man impersonates the husband of the victim and induces her to consent
to having carnal knowledge of her – a case in point is R v. Young

In the case of consent obtained by duress, the overriding question is: “would the victim
have withheld her consent but for the threat”?

If the answer is positive the accused is liable

So, it is rape if the accused induced the victim to consent to sexual intercourse by threats
– that is – submission by the victim where she is overpowered or cowed into submission
by the accused is no valid consent in law – therefore, reluctant acquiescence is no consent
– see R v. Olugboja

Then again, consent is void if the victim was under a permanent or temporal incapacity
resulting from intoxication or any other cause, as to render her incapable of
understanding the nature or consequences of the sexual intercourse to which she has
consented
- section 14(a)

Thus, it is rape if the accused obtained the consent of the victim by administering
stupefying drugs or alcohol to her

It is also rape if the accused knows the victim is asleep and therefore does not resist
because she is, in that condition, incapable of resisting – see R v. Mayers
In all these cases, it is immaterial whether the accused applied force – see R v. Olugboja

A person who has given her consent may also revoke it – section 42(g)

Therefore, though sexual intercourse is a complete upon penetration, yet it is a continuing

act ending only withdrawal – therefore, the accused is guilty of rape if he remains in the
female after she has stopped consenting
- see Kaitamaki v. The Queen

Still on the issue of consent, a burning question that has raged in our jurisprudence is
whether a husband can be convicted of raping his wife

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At common law, male chauvinism is the order – so the general rules is that a husband is
legally incapable of perpetrating rape on his wife, unless the parties are judicially
separated or unless the court has issued an injunction forbidding the husband to interfere
with his wife, or the husband has given an undertaking to the court in order to avoid the
issue of injunction

The reason traditionally given for this general rule is the very unhappy one that the wife’s
consent to be ravished by her husband is given on marriage, and she cannot revoke it

The common law position is encapsulated in R v. Miller

Under Ghana law, section 42(g) by the formulation you have, provides 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 a 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.

Section 100 also provides that:

Where a female is compelled to marry another person by duress as to make the
marriage void or voidable, the marriage does not have the effect for the purpose
of Part One with respect to consent

This implies that as long as the a female has not been compelled to marry by duress,
section 42(g) applies in its full force
Thus, in Ghana the combined effect of sections 42(g) and 100 is an affirmation of the
common law position that there can be no marital rape

The only possible situation under which there may be marital rape is where the marriage
is void or voidable by reason of the fact that the female was compelled to marry by
duress

Thus, by the formulation of section 42(g) as you have it in your Code, a husband cannot
be guilty of rape upon his wife because, by their voluntary coming together by law as
man 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
extrajudicially

Hence, during the subsistence of the marriage, the wife cannot raise any complaint in
respect of sexual intercourse against the husband except the act is unnatural – that is,
where the husband sodomizes her

However, there is a very very important development, which you must note

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This is that, under the new formulation of the Criminal Offences Act, the part of section
42(g) which appears to permit so-called marital rape has been deleted

So now, section 42(g) simply reads:

A person may revoke consent which that party has given to the use of force
against that person, and the consent when so revoked shall not have effect or
justify force

The reason given for the deletion of the saving provision in respect of marital rape is that
the saving provision is unconstitutional

So, the effect is that, as it stands now, marriage can no longer be cited as the consent of a
woman to a sexual encounter that will ordinarily be rape

In short, there is now marital rape in Ghana – so a husband may be convicted for raping
his wife!!

It should also be noted that it is no defense to a charge of rape for the accused to assert
that the victim took part in heavy petting before refusing consent

Defilement

The ordinary meaning of defilement is to violate the chastity of a person

Therefore, it would appear that the aim of the law is to protect the chastity of the object
of the offence from being violated

Under our law, defilement is the natural or unnatural carnal knowledge of a child under
sixteen years
- section 101

Unnatural carnal knowledge is sexual intercourse with a person in an unnatural way

- section 104(2)

Clearly, the aim of the legislature is to discourage sexual intercourse, be it natural or

unnatural, with children under the age of sixteen years even if they give their consent to
the act

The offence of defilement is gender neutral – that is to say unlike the offence of rape in
which the victim can only be female, under defilement, the victim may be male or female

This implies that means that a woman who has sexual intercourse with a boy under
sixteen years is guilty of the offence of defilement

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However, in the English case of R v. Mason (1968) 53 Cr App Rep 12, a married man
had sex with about six boys aged between 14 and 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 made a contact with their person. Since
they had done the penetration and her consent, no offence had been committed

However, it should be noted that the Ghanaian position is different from the English
position since in Ghana, the gender of a victim of defilement is immaterial - therefore
making it very likely that a woman may be successfully prosecuted for defilement

This should be understood in light of the fact that until the advent of Act 554 that
amended the entire chapter on sexual offenses, the offence of defilement only protected
female children below a certain age

The position then was clear that a woman, under law, could not be charged with a
defiling a boy – but now the gender of the victim is wholly immaterial – this strongly
suggests that a woman may be successfully charged with defiling a boy under sixteen

This is even more so because of these considerations:

 having natural or unnatural carnal knowledge with a boy under sixteen years is
defilement
 a man cannot have natural carnal knowledge of boy – a sexual encounter
between a man a boy can only be unnatural
 it is only a woman that can have natural carnal knowledge of a boy
 therefore, it appears that the offence of having natural carnal knowledge of a boy
under sixteen years can only be referable to a woman perpetrator

The most important consideration is the age of the victim – he or she must be under
sixteen years of age – so if the victim is sixteen years or more, the accused cannot be
charged with defilement

Therefore, if the victim, being female, is sixteen years or more, the proper charge to
prefer against the accused is rape

On the other hand, if the victim, being male, is sixteen years or more, and the accused is
male, the proper charge to prefer against the accused is unnatural carnal knowledge
simpliciter

Defilement arises in one of two circumstances, namely:

1. where the act is done without the consent of the victim in circumstances which
will amount to rape if the victim were sixteen years or more, and
2. where the act is done with the consent of the victim
- section 101(2)

Therefore, the element of consent is irrelevant under a charge of defilement – the accused
is still liable even if the victim consented to the carnal knowledge or unnatural carnal

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knowledge – that is, it will lie ill in the mouth of the accused for him to assert that the
victim consented to the act

This is why the offence of defilement is often referred to as statutory rape – that is – the
consent of the victim does not inure to the benefit of the accused – since in law, such
consent is void – see section 14(a)

All that the prosecution need to prove is that the victim was under sixteen years when the
accused carnally knew him or her or unnaturally carnally knew him or her
- see The Republic v. Yeboah

In that case, the victim, a nine year old girl, who was alleged to have been defiled the
accused. In the victim’s own words:
The accused raised me up on to his thighs as he was seated on a chair…Before the
accused put me on his thighs he took off my cover cloth and also my drawers or
pants. He put me on his thighs with my face towards him. My legs were hanging
and could not touch the ground…The accused then put his penis inside or into my
vagina, and I cried as I was feeling pains. He pushed his penis into my vagina.
[After that] I just put on my pants and as I was going home the accused gave me a
two and a half new pesewas piece saying I should buy some food with it.

The accused flatly denied ever having sexual intercourse with the child. However, it was
found as a fact that he did.

It was held that even though he victim failed to report or complain to her mother or
anyone until about a week later, it merely showed perhaps that she was a willing victim;
but her consent was no defense in such a charge.

But see C.O.P. v. Sem or a different fact pattern and the conclusion of the court based on
the peculiar circumstances of that case

The punishment for defilement is a term of imprisonment of not less than seven years and
not more than twenty-five years

Related to the offence of defilement is another offence that seeks to discourage

householders from permitting defilement of children in their premises
- section 106

Carnal Knowledge of Idiot

Section 102
The elements of the offence are as follows:
- carnal knowledge or unnatural carnal knowledge of an idiot, imbecile
or a mental patient

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 - who is in or under the care of a mental hospital – does this mean that a
person may freely help himself to an idiot, imbecile or Looney if the
Looney is not in or under the care of a mental hospital?
- with or without the consent of the victim – that is – the consent of the
victim is immaterial – the accused will still be liable – here, the law is
taking the position that persons of defective mental faculties cannot
give consent to a sexual act – so the consent of such a person to any
form of sexual intercourse is no defense - see section 14(a) and its
illustration which is to the effect that A. induces a person in a state of
incapacity from idiocy to consent to an act – the consent is void
- the mental element here is important – thus, it must be shown that the
accused knew at the time sexual intercourse that the victim has a
mental incapacity
- the age of the victim is immaterial

So in R v. Pressy 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

Clearly, the intention of the legislature is to strongly discourage sexual intercourse with
persons with defective mental faculties

Unnatural Carnal Knowledge

Ghanaian law takes the view that heterosexual life is the normal thing for human beings –
that is – a normal connection between a male and a female – that is sex per vaginam

Therefore, any other formula is cast by the law as unnatural – hence section 104(2)
provides that:
Unnatural carnal knowledge is sexual intercourse with a person in an unnatural
manner or, with an animal

Thus, sodomy is unnatural – bestiality i.e. carnally knowing an animal or permitting an

animal to carnally know you is unnatural – lesbianism is a little controversial since the
definition of unnatural carnal knowledge revolves around sexual intercourse – it may be
stretching the issue a bit too far to say that two females are engaged in sexual intercourse
even if they are using sex toys to gratify each other

A person may be guilty of unnatural carnal knowledge in one of three ways, namely
1. having unnatural carnal knowledge with a person of sixteen years or
above without his or her consent – because of the lack of consent, this
instance is equated to rape – hence it is a first degree felony and the
accused is liable to suffer imprisonment of not less than five years and not
more than twenty-five years – section 104(1)(a)

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 2. Or, having unnatural carnal knowledge with a person of sixteen years or
more with his or her consent – this instance is a misdemeanor because of
the existence of the other person’s consent – section 104(1)(b)
3. Or, having unnatural carnal knowledge of an animal – this instance is a
misdemeanor – section 104(1)(c)

Section 104(1)(b) is a frontal assault on the gay and lesbian community in Ghana. The
question remains whether section 104(1)(b) is unconstitutional

Incest

Incest is sexual intercourse between close family members

Incest is considered a taboo in many cultures – but the familial sexual relationship that is
frowned upon depends on the society in question

So, some societies prohibit sexual intercourse between people related by birth – some
societies prohibit sexual relations between people related by adoption or marriage – yet
other societies prohibit sexual relations between people who grew up in the same
household or related households

Ghana’s criminal law seeks to prohibit sexual intercourse between members of the
opposite sex within defined degrees of consanguinity – that is – within defined degrees of
blood relations

The law does not prohibit sexual relations between members of the opposite sex within
any degree of affinity – that is – relation by marriage

Now lets discuss the degrees of consanguinity within which sexual relations are
prohibited: section 105
- It is incest, if being a male of not less than sixteen years, you have
carnal knowledge of your granddaughter, daughter, sister, half-
sister, mother or grandmother
- It is incest if, being a male of not less than sixteen years of age,
you permit grandmother, mother, sister, half-sister or daughter to
have carnal knowledge of you
- It is also incest if, being a female of not less than sixteen years, you
have carnal knowledge of your grandson, son, brother, half-
brother, father or grandfather
- Then, it is incest if, being female of not less than sixteen years, you
permit your grandfather, father, brother, half-brother or son to have
carnal knowledge of you

It is very important to note that for an accused to be guilty of the offence of incest, he or
she must know that the other party to sexual conduct was within the prohibited degrees of

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consanguinity – if the prosecution does not prove that the accused knew this as a fact, he
or she is entitled to an acquittal
- see the various permutations under section 105(1)-(4)
- see also R v. Carmichael

It should also be noted that it is immaterial that the relationship between the accused and
the other person is not traced through lawful wedlock – even in this case, the accused will
still be culpable
- section 105(5)

Indecent Assault

This is the criminal version of sexual harassment

Indecent assault is a misdemeanor punishable by a term of imprisonment of not less than

six months
- section 103(1)

A person may be guilty of indecent assault in one of two situations, namely:

- forcibly making a sexual body contact with the other person in a
manner that does not amount to carnal or unnatural carnal knowledge
without the person’s consent – this situation of culpability stresses the
element of force – in most cases, the absence of consent suggests a
forcible touching – section 103(2)(a)
- Or, sexually violating the body of the other person in a manner not
amounting to carnal or unnatural carnal knowledge without the
person’s consent – section 103(2)(b)

Some of the decided English cases suggest that there must be physical contact with the
victim before a prosecution for indecent assault may well lie – an example is DPP v.
Rogers [1953] 2 All ER 644

Surely, physical contact is required under section 103(2)(a)

However, it appears that physical contact is not an essential element under section 103(2)
(b) – thus, under section 103(2)(b) forcing a person under threat of harm or any other
mode to perform acts that sexually violates that person’s body may render the accused
liable although he may not have had any physical contact with the victim
- see R v. Sargeant (1997) Crim LR 50

In Alawusa v. Osudote, the Appellant forcibly shaved the public hair of his wife. It was
held that since a husband could not be guilty of rape upon his wife, he could not be guilty
of indecent assault upon her either. This was because acts that would ordinarily be
considered indecent when occurring between a man and any other woman could not be so
regarded, as between a man and his wife

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It should be noted that this case was decided under the old regime that set store that a
man could not be charge for raping his wife – yet we have seen that this situation has now
changed and it is possible for a man to be convicted of raping his wife – so the ratio in
Alawusa may not hold sway today
Procuration

I suppose you are familiar with the term pimp

A pimp is a person who finds and manages clients for prostitutes and engages them in
prostitution in order to profit from their earnings

A pimp may also offer to protect his whores from rival pimps and whores or from
abusive clients

The criminal law seeks to prohibit pimping under the offence of procuration

Section 107(1) – read and explain

See the cases of Drury v. R and R v. de Munck (1918-12) 26 Cox CC 302

It is important to note that the accused cannot be convicted of the offence of procuration
on the evidence of only one witness – there must be corroboration in a material particular
of that witness’ testimony by evidence that implicates the accused
- section 107(2)

Corroboration consists of evidence from which a reasonable inference can be drawn

which confirms in a material particular the evidence to be corroborated and connects the
accused with the crime
- section 7(1) of the Evidence Decree, 1975 (NRCD 323)

Seduction or Prostitution of a child under sixteen

Section 108

OFFENCES AGAINST RIGHTS OF PROPERTY

Offences against property rights may be categorized in two main ways

There are the acquisitive offences – that is – offences involving dishonesty

Then there are offences involving damage or destruction

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Offences Involving Dishonesty

Stealing

Stealing is a second degree felony – section 124

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

By definition, a “person steals if he dishonestly appropriates a thing of which he is not

the owner”
- section 125

To establish the offence of stealing we look at two main ingredients, namely:

i. asportation, and
ii. animus furandi

Asportation is the actus reus and it may involve taking, moving, obtaining carrying away,
or dealing with an item etc

And animus furandi is the mens rea – that is – intention to steal

Both elements must be present

To establish these elements, the prosecution must prove three requirements, namely:
1. that the accused is not the owner of the thing allegedly stolen
2. that the accused appropriated the thing alleged to have been stolen, and
3. that the appropriation was dishonest
- see Republic v. Halm; Ampah v. The Republic; Lucien v. The
Republic

Now let’s expand on the various elements

i. that the accused is not the owner of the thing allegedly stolen

It is not necessary for the prosecution to prove who actually owns the thing allegedly
stolen – section 123(3)

All that is needed is for the prosecution to show that the accused is not the owner of the
thing allegedly stolen
- Republic v. Halm

In that case, it was explained that a charge of stealing is not founded on a relationship
between the accused and an identified owner of the thing allegedly stolen, but rather on
the relationship between the accused and the thing alleged to have been stolen

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So, the fact that the owner is not known does not make a difference – the accused will
still be culpable

ii. that the accused appropriated the thing alleged to have been stolen

What amounts to appropriation?

By section 122(2), an appropriation of a thing means any

- moving
- taking
- obtaining
- carrying away or
- dealing with a thing

It is clear that the law does not require a carrying away of an item before a person be
convicted of the offence of stealing

The requirement is satisfied as long as it is shown that the object has been moved from its
original setting

Therefore, merely removing the item from the place in which the accused found it is
sufficient to fix him liability
- Anin v. The Republic

So, as the illustration goes, it is sufficient appropriation if A., intending to steal a horse,
disguises it by cutting its mane and tail

However, the mental element is very important here

It must be shown that the accused committed the act with the intention that some person
may be deprived of
- the benefit of his ownership, or
- the benefit of his right or interest in the thing, or
- in its value or proceeds, or
- any part thereof

In the absence of the mental element, there can be no appropriation

- Antwi v. The Republic

However, the intention need not be to deprive any person permanently of his benefit of
ownership etc

It is enough if the intention is to deprive some person temporarily of his benefit or right
or interest in the thing appropriated

It also suffices if the appropriation is merely for a particular use – section 122(3)

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This is so if the intent is to use or deal with the thing that it will probably 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 some other thing to which he is otherwise entitled, or if it is pledged or
pawned

So, under Ghanaian law, temporary use or appropriation satisfies the requirement as long
as it is accompanied by the requisite proscribed mental element

Therefore, a cashier at a bank who makes use of the bank’s money in his keeping with the
intention of replacing it later, may be guilty of stealing

Also, as the illustration goes, let us suppose A. is a workman and that he is paid
according to the quantity of metal which he obtains from ore. If A. fraudulently puts into
the furnace some metal belonging to his employer instead of ore, with the purpose of
increasing his wages, A. may be guilty of stealing the metal, although he does not mean
to deprive his employer of it permanently

Then also, if A. borrows a horse without the consent of its owner, intending to keep it
until it is worn out before returning it; A. is guilty of stealing the horse

It should be noted that under Ghanaian law, it is immaterial whether the act by which a
thing is taken, obtained, or dealt with amounts to trespass or conversion or not – section
122(4)

The non-requirement of trespass or conversion is very important in this highly

computerized age where stealing or theft may be perpetrated through electronic mail,
facsimile and wire transfers, without any physical trespass

iii. the appropriation must be dishonest

We have discussed what amounts to appropriation – we will now discuss what amounts
to dishonest appropriation – that is – what will make an appropriation dishonest so as to
elevate it to the offence of stealing

Dishonest appropriation arises in one of three ways, namely:

i. where the appropriation is made with an intent to defraud; or
ii. where the appropriation is made without a claim of right, and with the
knowledge or belief that the appropriation is without the consent of some
person who is the owner of the thing; or
iii. where the appropriation, if known by the owner of the thing, would be without
his consent

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 - section 120(1)
- see also Ampah v. The Republic

We will next expand on these points

i. appropriation done with intent to defraud

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

In terms of section 16, an intent to defraud is an intent to cause, by means of the

asportation, any gain capable of being measured in money, or the possibility of any such
gain, to any person at the expense or the loss of any other person

The essential element in an intent to defraud, is an intent to deprive the other person of
something of value, whether money or a chattel, and thus causing economic loss

The illustration goes that: A., a commercial traveler, is directed to collect moneys for his
employer. If he is at liberty to spend or dispose of the particular moneys which he
collects, and is only bound to account for the balance in his hands at particular times or
when called upon, he does not commit stealing merely by spending any or all of the
moneys collected by him, unless there is an intent to defraud

That is, the mere fact that the commercial traveler spends any or all of the money
collected by him does not amount to stealing – other factors must be proved to show that
at the time he spent any of or all the money, he had the intent to cause some economic
loss to his employer and thereby benefit or get an advantage from such spending at the
expense of the employer

ii. appropriation without claim of right

As we said earlier, appropriation without a claim of right must be with the knowledge or
belief that the appropriation is without the consent of some person who is the owner of
the thing

Therefore, as the illustration goes, A., being the guest of B., writes a letter on B.’s paper.
Here A. is not guilty of stealing, because, although he does not use the paper under any
claim of right, yet he believes that B., as a reasonable person, would not object to his
doing so

So what is claim of right?

A claim of right is a claim right made in good faith

- section 15
- see also Brempong II v. The Republic

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So, as the illustration goes, A., during a lawsuit with B., as to the right to certain goods,
uses or sells some of the goods. Here A. is not guilty of stealing, because, although A.
believes that B. would object, yet A. acts under a claim of right

Therefore, a claim that is made without good faith – in other words – a claim that is
tainted with mala fides or ill or bad faith will render the appropriation dishonest

iii. where the appropriation, if known by the owner of the thing, would be without his
consent

This point is self-explanatory

However, it is important to note there is no requirement that the accused should know
who is the owner of the thing

It suffices if the accused has reason to know or believe that some other person, whether
certain or uncertain, is interested in the thing or entitled to it
- section 120(2)

Therefore, 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
- see the illustration to section 120(2)
However, it has been held that although ownership need not be proved, where the defense
alleges consent on the part of one of the disputed owners, then proof of ownership
becomes material, since consent to appropriation by the owner negatives stealing
- Dramanu v. The Republic

The provisions relating to consent under section 14 apply here

The consent of the owner to the taking of a thing is a complete defense to a charge of
stealing

On this point, consent may be actual or implied

Implied consent may be deduced from the relationship between the parties – so in law,
ordinarily, marriage operates as implied consent to the taking of property belonging to the
other spouse

So, a wife has implied consent of the husband to take and use his property, just as he has
the implied consent of his wife to the use of her property

Therefore, by section 126(1), if it is proved, on behalf of the accused under a charge of

stealing, that the wife of the owner of the thing consented to its appropriation by the
accused, the accused will be exculpated from liability unless it is shown that he had
notice that the wife had no authority to consent to the appropriation
- see also R v. Creamer

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The accused will be deemed to have had notice that the wife of the owner of the thing had
no authority to consent to the appropriation if it appears that he had committed adultery
with the owner’s wife or he designed to commit adultery with the owner’s wife
- section 126(2)
- see also R v. Flatman

However, in this case, the accused shall not be convicted of stealing by reason only of the
appropriation, with the consent of the wife
- section 126(2) (a)

It should be noted that a co-owner of a thing can be guilty of stealing the thing
irrespective of the fact that the thing is jointly owned by the accused and another person
or persons
- section 121
- see also R v. Maywhort

So a member of a partnership, or of any association, or corporation can be guilty of

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

And a servant or officer of a partnership, association, or corporation can be guilty of

stealing its property, although he is a member of it

So what are the things in respect of which stealing can be committed?

The list of things that can be stolen are inexhaustible

Section 123 regulates this matter – and by this section, anything, whether living or dead,
and whether fixed to anything or not, and whether the thing be a mineral or water, or gas,
or electricity, or any other nature can be stolen

The intrinsic value of the thing is immaterial – so in Sam v. The State, the appellant was
convicted for stealing a human skull

It should be noted that dominion or possession is critical – property which is not subject
to the dominion of any person such as animals in the wild or fish in a river, lake or sea
cannot be the subject-matter of stealing, unless brought to effective possession or
dominion of another or regulated by game reserve laws

Now let’s discuss the issue of stealing by finding or the circumstances under which a
person may be held to have stolen a thing that has been lost by another person

By section 127, the rule is that a person will not be held to have stolen a thing if the thing
appears to have been lost by another person, except in the following circumstances:

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 - if at the time of appropriating the thing, he knows the owner of the
thing or by whom it has been lost
- if the character or situation of the thing, or the marks upon it, or any
other circumstances is or such as to indicate the owner of the thing or
the person by whom it has been lost – so, for instance A. finds a ring in
the highway. If the ring has an owner’s or makers’ name or motto
engraved upon it or it is of grave value, A. will be guilty of stealing it
if he appropriates it without making reasonable enquiry
- if the character or situation of the thing, or the marks upon it, or any
other circumstances is or are such that the person who has lost the
thing appears likely to be able to recover it by reasonable search and
enquiry, if it were not removed or concealed by any other person
- see Kramo Wala v. The Rep
- and Ali & Ors v. The Rep

But for section 127, anyone who found and kept a lost item under any circumstances
would have been guilty of stealing

From the foregoing, the defenses to a charge of stealing may be recapped as follows:
1. consent
2. claim of right
3. found object

Robbery

Robbery is stealing with the use of force, or causing of harm, or threat of criminal assault
or harm
- see R v. Dawson

So, by section 150, a person who steals a thing is guilty of robbery if, in and for the
purpose of stealing the thing, he uses any force or causes any harm to the person, or if he
uses any threat of criminal assault of harm to any person, with the intent thereby to
prevent or overcome the resistance of that or of any other person to the stealing of the
thing

Thus, on a charge of robbery, the prosecution must prove all the elements of stealing and
also show:
 that the accused used force or caused harm or used threat of criminal assault or
harm to any person in and for the purpose of stealing a thing; and
 that the accused did so with the intent of preventing or overcoming the resistance
of that or any other person to the stealing of the thing
- see Behome v. The Republic

The mental elemental is crucial – merely using force or causing harm or resort to threats
is not robbery

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The mental element here involves two aspects:
- first, it must be shown that the accused intended to steal something and
- second, that he used force or caused harm or threatened to cause harm
or assault with intent to prevent or overcome the resistance of that
person to the stealing of the thing

It is not necessary that physical harm must be caused in relation to robbery

It is enough if a person is threatened with criminal assault or harm with intent to put him
with intent to put him in fear of such criminal assault or harm
See section 17 for explanations with respect to the use of threat

It should be noted that the force or threat need not be directed solely at the person being
robbed – so it suffices if the force or threat is directed at some other person if the
intention is to prevent overcome the resistance of that person to the stealing of the thing

Since the threat of criminal assault or harm must be directed at a person, the charge of
robbery cannot be sustained if the accused merely threatens to damage the property of the
victim

However, if the threat to damage property is coupled with the use of force, harm, threat
of criminal assault or harm to a person, the charge of robbery may well be founded

Ordinarily, if you commit robbery, you are liable to imprisonment for not less than ten
years

However, if you commit robbery by the use of an offensive weapon or offensive missile,
you will be liable to imprisonment for not less than fifteen years
- section 149(1)

Offensive weapon for this purpose is defined as any article made or adapted for use to
cause injury to the person or damage to property or intended by the person who has the
weapon to use it to cause injury or damage

And offensive missile is defined to include a stone, brick, or any article or thing likely to
cause harm, damage or injury if thrown
- section 149(3)

Extortion

Extortion is a second degree felony and it involves obtaining property from a person by
resort to threat
- section 151

By this definition, it would appear that extortion is a form of robbery – but it is not

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Although, extortion, like robbery, involves the use of threat to make another person part
with property, the basic difference between the two is that “threat” in the case of
extortion does not include a threat of criminal assault or harm to the person threatened

The threat may be in the nature of a blackmail or libel or slander – see section 17

So, as the illustration goes, if A. obtains money from B. by threat of violence to B., he is
guilty of robbery and not of extortion

The essence of the offence of extortion is not merely demanding or obtaining but doing
so with threats

If you make a demand for money from another person accompanied by threats not
amounting to violence, you may be liable for extortion unless you can show that you had
a reasonable and probable cause for making the demand – that is – the demand was
justifiable

Thus, a genuine belief in the existence of facts constituting reasonable and probable cause
is a sufficient defense even though the belief may be ill-founded – CSP v. N’jie & Gaye

Related to the offence of extortion is the offence of extortion by a public officer – which
is created by section 239 and explained in section 247

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

The difference between extortion simpliciter and extortion by a public officer is that
while the essence of the demand in the former is the use of threats, the essence of the
demand in the latter is “under the color of office”
- see Yeboah v. The Republic

Fraudulent Breach of Trust

The offence of fraudulent breach is a second degree felony – section 128

The purpose of the creation of the offense is to discourage trustees from dishonestly
exploiting their position of trust as regards the trust property and the beneficiaries of the
trust property

Thus, a person is guilty of fraudulent breach of trust if he dishonestly appropriates a thing

the ownership of which is vested in him as trustee or on behalf of any other person
- section 129

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The prosecution must prove three essential ingredients to succeed on a charge of
fraudulent breach of trust, namely:
1. that the ownership of the thing is vested in him as trustee for on behalf of
some other person;
2. that the trustee appropriated the thing while it was so vested in him; and
3. that the appropriation was dishonest

So what amounts to appropriation by a trustee?

For this, we turn to section 122(1), which provides that:

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

What, then, amounts to dishonest appropriation by a trustee?

- see section 120

It should be noted that the circumstances under which the ownership of the thing became
vested in the accused as trustee must be proved

However, a gratuitous trustee cannot be guilty of the offence of fraudulent breach of trust

A gratuitous trustee is one that being the owner of a thing in his own right and for his
own benefit, undertakes to hold or apply the thing as trustee for another person

However, such a person is a trustee within the meaning of section 129, if he constitutes
himself as such a trustee, in respect of a thing he owns in his own right, by an instrument
in writing executed by him and specifying the nature of the trust and the person to be
benefited thereby
- section 130

Therefore, if A., on the marriage of his daughter, verbally promises to hold certain
moneys of his own in trust for her and her children, A. is not a trustee within the meaning
of section 129 – but if the moneys were entrusted to A. by his son-in-law for the wife, A.
would be a trustee within the meaning of section 129

Fraud by False Pretences

Defrauding by false pretence is a second degree felony – section 131(1)

By section 131(2), a person who by means of a false pretence or by personation obtains

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

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

To succeed on a charge of defrauding by false pretences, the prosecution must prove the
following essential conditions:
1. that the accused made a false pretence or impersonated another person
2. that by means of the false pretence or personation, the accused obtained the
consent of another person to part with or transfer the ownership of a thing

Clearly then, it must be proved that the person who parted with or transferred the
ownership of the thing in question would not have done so but for the false pretence or
impersonation

Thus, the element of inducement is very important – the victim must have been
persuaded to accept the false pretence of or impersonation by the accused as true and to
have acted upon it to his detriment

So, if it is shown that the complainant was not induced by the false pretence or
impersonation by the accused, the accused is entitled to an acquittal

Also, if it is shown that the complainant had knowledge of the falsity of the
representation by the accused, but still acted on it to his detriment, the accused is entitled
to an acquittal – this is because a person who acts upon a representation which he knows
to be false cannot be a victim of that representation
- Rabbles v. The State

However, it does not matter that had the complainant used ordinary care and judgment
the false pretence would not have induced him – the accused is liable as long as the false
pretence influenced the decision of the complainant – section 133(2)(d)

Still on the issue of consent, what is the position of the law where consent is obtained by
a false representation as to the quality of thing?

In this case, the law is that the consent will be deemed to have been obtained by a false
representation only where the thing is substantially worthless in comparison to what it
was represented to be, or the thing is substantially different from what it was represented
to be
- section 133(2)(c)

So what then amounts to false pretence and what amounts to personation?

Under the Code, false pretence is defined separately from personation

However, false pretence is a wider term that embraces personation – that is – personation
is a species of false pretence

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Lets discuss first, false pretence – it is defined by section 133
By section 133(1), false pretence is a representation of the existence of a state of facts
made by a person, either with the knowledge that such representation is false or without
the belief that it is true, and made with the intent

The representation may be made in writing or verbally, or by personation, or b any other

conduct, or sign, or means – section 133(2)(a)

Now, lets expand on the important elements of false pretence

The first point is that the false pretence must relate to the existence of a state of facts

So the question to ask is: is any existing fact alleged as an inducement to part with a thing
or transfer the ownership of a thing, while the accused was aware that the alleged existing
fact was untrue?

On this point, a representation of the existence of a state of facts includes a representation

as to the non-existence of a thing or condition of things
- section 133(b)

So from the illustrations, the following are false pretences

- A. goes into a shop dressed as an officer in the army (which) he is not.
If he does this in order to gain credit which he would not otherwise
get, he is guilty of a false pretence, although he does not actually say
that he is an officer
- A. represents that a picture which he is selling, once belonged to a
particular collector
- A. represents that a picture which he is selling was painted by a
particular painter, for instance Picasso or da Vinci
- A. represents that a picture which he is selling belongs to him when in
fact it does not
- A. represents that he is entitled to a legacy under a will of a deceased
relative

It must be emphasized that a distinction is made between a representation as to the

existence of a state of facts and a representation and a representation as to the occurrence
of a future event

A representation as to existence of a state of facts renders the accused liable but a

representation as to the occurrence of a future event does not render the accused culpable

So, a representation as to the existence of a state of facts does not include a mere
representation of any intention or state of mind of the accused

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Therefore, a mere representation or promise that anything will happen or will be done, or
is likely to happen or is likely to be done, will not do
- section 133(2)(b)
- Kuma v. The Republic

Thus, from the illustrations, the following acts by A. do not amount to defrauding by
false pretences:
- that a picture he is selling is a valuable work of art
- that in five years the picture will have doubled in value
- that he expects to receive a legacy when a relative dies

However, a false representation as to future conduct or the promise of an event in the

future coupled with a false representation as to the existence of a state of facts could
found liability
- see CSP v. Cessay

As the definition of false pretence in section 133 shows, it is not sufficient to prove that
the accused made a representation of the existence of a state of facts with the knowledge
of its falsity of without belief in its truth

It must also be shown that the accused had an intention to defraud

For this purpose, section 16 defines intent to defraud as an intent to cause any gain
capable of being measured in money, or the possibility of any such gain, to any person at
the expense or to the loss of any other person by the means of a false pretence

We come to the issue of what amounts to personation

Personation involves either

- a false representation or false pretence by a person that he is a different
person – it does not matter whether the person he purports to be is
dead or alive or is a fictitious person; or
- he gives or uses his own name with the intention that he may be
believed to be a different person of the same or similar name – section
135

We will next discuss a form of defrauding by false pretences that is known as Fictitious
Trading and dealt with under section 135

This is where a person orders or makes a bargain for the purchase of goods by way of
sale or exchange and after obtaining the goods he defaults in paying the purchase money
or defaults in supplying the goods

Here, such a person is guilty of defrauding by false pretences in one of two situations:
1. if at the time of placing the order or making the bargain, he intended to default in
paying for or supplying the goods ; or

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 2. if the order was placed, or the bargain was made with intent to defraud and not in
the course of any trade carried on in good faith
- see Republic v. Director of Prisons; Ex P. Allotey and Darkurugu v.
The Republic

Distinction between Stealing and False Pretences

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

So where the owner of a thing or person having authority to part with ownership of the
thing, gives his consent to the appropriation of the thing by the accused, the accused will
not be deemed to be guilty of stealing the thing, even if the consent was obtained by
deceit – in such a case, the accused may be held guilty of defrauding by false pretences
- section 136(1)

So as the illustration goes, A. intending fraudulently to appropriate a horse belonging to

B., obtains it from B., under the pretence that he wants it for a day. Here, A. is guilty of
stealing

On the other hand, A., intending to defraud B. of a horse without paying him induces B.
to sell and deliver it to him without present payment, by a false pretence that he has
500,000 cedis in his account. Here, A. is guilty of obtaining by false pretences, but is not
guilty of stealing

Falsification of Accounts

Falsification of accounts is a second degree felony

This offence was created because of the difficulties that occur in an attempt to charge
persons who doctor books with stealing

The person has doctored books but he may not actually have appropriated a thing though
his intention may to facilitate the appropriation of a thing

The offense of falsification of accounts, therefore, ensures that these difficulties are
prevented so an accused will not be acquitted on technicalities

So who may be guilty of the offense of falsification of accounts?

By the chapeau of section 140, the following persons may be guilty of falsification of
accounts:
 clerks
 servants

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  public officers
 officers of partnerships
 officers of companies or corporations

So, the offence may be committed by practically any person who handles the accounts or
books of an entity

The actus reus of the offence of falsification of accounts consists of an act of

 concealing, or
 injuring, or
 altering, or
 falsifying a book, paper or account, or
 omitting to make a full and true entry in an account, or
 publishing a false account, statement or prospectus
- section 140

The mental element here is also very crucial – it must not merely be shown that the
accused concealed, injured, falsified etc. a book or account – the mens rea must also be
established

The requisite mens rea for this offense may be one of the following:
- intent to cause a person to be defrauded – consider this in relation to
section 16, or
- intent to enable a person to be defrauded – consider this too in relation
to section 16, or
- intent to commit to a crime, or
- intent to facilitate the commission by himself, or
- intent to facilitate the commission of a crime by another person –
consider this in relation to section 18
- for the mens rea requirement, see the chapeau of section 140

Intent to defraud is very difficult of direct proof so it may implied from the actions of the
accused

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

Dishonest Receiving

This is where a person takes possession or control of goods obtained by a crime – the
typical case is where a thief sells stolen goods to another person

The rationale behind this offence appears to be that dishonest receiving is notionally a
fresh theft by reason of the dishonest appropriation

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By section 146 of Act 29, it is an offence for a person to receive property, which that
person knows to have been obtained or appropriated by stealing, fraudulent breach of
trust, defrauding by false pretences, robbery, extortion or unlawful entry

A person who dishonestly receives property obtained or appropriated by any of these

offences is liable to the same punishment as if that person had committed had that
offence

For, instance, if A. obtains goods from B. by false pretences and C., knowing that A.
obtained the goods by this means, dishonestly receives the same, he will be guilty of
dishonestly receiving the goods and liable to be punished for defrauding by false
pretences

On another score, by section 148(1) of Act 29, where a person is under a charge of
dishonestly receiving property, is shown to have had in his possession or under his
control, anything which is reasonably suspected of having been stolen or unlawfully
obtained, and that person does not give an account, to the satisfaction of Court, as to the
possession or control, the Court may presume that the thing has been stolen or unlawfully
obtained, and that person may be convicted of dishonestly receiving in the absence of
evidence to the contrary
- see also Santuoh v. The Republic

This is an aspect of what is known in the common law as the concept of recent
possession – this concept posits that if a person is found to be in possession of any
property which has been recently stolen and he is unable to give satisfactory explanation
as to how he came by the property, he will be presumed to have dishonestly received it,
unless he gives a reasonable explanation as to how he came by it

Still on this point, it should be noted that the possession or control of a carrier, an agent,
or a servant is deemed to be the possession or control of the person who employed the
carrier, agent or servant
- section 148(2)

This is what is termed, “constructive possession”

To succeed on a charge of dishonest receiving, the prosecution must satisfy the following
requirements:
1. that the accused received property which he knew to have been obtained or
appropriated by stealing, or fraudulent breach of trust, or defrauding by false
pretences, or robbery, or extortion or unlawful entry – this is the actus reus, and
2. that the receipt by the accused of the property was dishonest – this is the mens rea

The actus reus consists of receiving, buying, or assisting in the disposal of the property
otherwise than with a purpose of restoring it to the owner
- section 147(2)

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Still on the actus reus, it must be established that the accused either physically received
the goods or that the goods were in the possession of a person over whom he had control
- R v. Amissah

Therefore, in the case of a person who buys property which he knows has been obtained
or appropriated by a crime, it is not necessary to prove that the buyer has actually
collected the goods – it suffices as long as he has paid for the goods, though he is yet to
collect them

Another aspect of the actus reus is the knowledge on the part of the accused that the
property was obtained or appropriated by a crime – merely proving that the accused
received property obtained or appropriated by a crime is not sufficient to establish the
actus reus

On this point, knowledge may be inferred from the circumstances of the case – for
instance, where the accused secrets the property in very unlikely places
- see R v. Boateng

Knowledge may also be inferred, for instance, where goods are offered for sale at “any
price” of where the goods are offered for sale at a ridiculously low price - in situations
such as these, knowledge may be imputed to the accused since the circumstances are such
as to put him on reasonable enquiry – that is the accused ought to have known that the
property was obtained or appropriated by a crime

The mens rea of the offence consists of a dishonest intent – therefore, it is not enough
merely to show that the accused received property with the knowledge that it was
obtained or appropriated by a crime

So for instance, a thief’s wife is not guilty of dishonest receiving merely because she
keeps at home goodies brought to her husband unless she knows that the goods were
stolen by her thieving husband

Thus, where a person receives goods which he knows to have obtained or appropriated by
a crime with the object of restoring it the owner, there is no dishonest intent thus, he
cannot be convicted of the crime

However, where the intention of the accused is otherwise than to restore the property to
the owner, liability arises
- section 147(1)

It does not matter that the offence by which the property was obtained or appropriated,
was not committed within the jurisdiction of the Court – section 147(2)

Forgery

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The things in respect of which the offence may forgery may be committed include:
 judicial or official documents
 any document
 hallmarks on gold or silver plate or bullion
 trade-mark
 stamps of any description
 currency notes

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

Thus, it is a second degree felony to forge a judicial or an official document with intent to
deceive another person
- section 158

To this end, an official document is a document purporting to be made, used or issued by

a public officer for a purpose relating to that public office
- section 163(3)

It is a misdemeanor to forge any other document with the intent to defraud or injure
another person; or with the intent to evade the requirements of the law; or with the intent
to commit, or to facilitate the commission of, a criminal offence
- section 159

Clearly, Ghanaian law draws a distinction between public and private documents – the
punishment for forging a public document is stiffer than that for forging a private
document

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

What then is a document?

- see Williams, “What is a Document?”

It is a misdemeanor to forge or counterfeit a hall-mark or mark appointed, under the

authority of a law, by a public corporation or public officer to denote the weight,
fineness, age, or place of manufacture of gold or silver-plate or bullion with the intention
to defraud
- section 160

It should be noted that the mens rea requirement of an intent to deceive under section 158
is distinct from the mens rea requirement of an intent to defraud or injure under sections
159 and 160
- see Yirenkyi v. The Republic

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“Intent to defraud” is dealt with under section 16, wherein by means of forgery, a person
intends to cause a gain or the possibility of a gain to himself at the expense or to the loss
of another person

It has been held that “intent defraud” is implies obtaining by false representations some
material or financial gain from someone; while intent to injure may simply mean that
some person may act to his detriment or loss
- Okyere v. The Republic

In both instances, the victim of the forgery must have acted upon the forged document to
his detriment

With respect to “intent to deceive”, the law does not require the person deceived to have
been deprived of anything – obtaining of his mere consent to be deprived is all that is
necessary to complete the offence

By section 161, it is a misdemeanor to forge or counterfeit a trademark in relation to

goods or the sale of goods or sell or offer for sale any goods or thing so marked or have
in your possession, custody or control the goods or a thing so marked, or the materials
contrived or means prepared or contrived for the forging or counterfeiting a trademark,
or for the marking of goods or a thing with the intention of fraudulently passing off, or to
enable another person to fraudulently pass off, the goods as having been lawfully marked
with the trade-mark or as being a character signified by the trademark
- see section 163(1) for the definition of “trade-mark”

Counterfeiting is an offence on its own – thus, by section 168(2) the offence of

counterfeiting consists of making anything, which is intended to serve as a specimen, or
pattern or trial of a process for counterfeiting a stamp or mark

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

Counterfeiting is defined by section 168(1) as the making of an imitation of a stamp or

mark, or anything which is intended to pass or which may pass as that stamp or mark or
thing

Then there is the offence of forgery and other offences in relation to stamps – these carry
a penalty of a fine not exceeding fifty penalty units
- section 162

By section 165, it is a misdemeanor to possess a means of forging – that is having in

your possession, without lawful excuse, an instrument or a thing specifically contrived or
adapted for the purposes of forgery
- see Olujomoye

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By section 166, it is an offence to possess a forged, counterfeited or falsified document or
stamp with the requisite mens rea
The accused must know that the document is forged, or that it is counterfeited, or that it is
false or not genuine
- Okpara v. C.O.P.

The mere possession of a forged document is not an offence – the intent with which a
possesses a forged document is the crucial factor
- Bawa alias Issahaque

See section 167 for what constitutes possession for this purpose

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

For this purpose, to utter a document or stamp is to use it or deal with it – so for instance,
it is uttering to present a forged check at a bank

Now lets consider the ingredients of the offence of forgery

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

When may we say that a person has forged a document?

By section 164(1), a person forges a document if he actually makes or alters the

document, with intent to cause it be believed:
- that the document has been made or altered by a person who did not in
fact make it or alter it – it is immaterial if the person is dead or alive or
is a fictitious person; or
- that the document has been made or altered with the authority or
consent of a person who did not in fact give the authority or consent –
it is immaterial if the person is dead or alive or a fictitious person; or
- that the document has been so made or altered at a different time from
that at which it was in fact made or altered

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In short, the document must be made to tell a lie of itself – that is, the document must
pretend to be what it is not
- see Antwi v. The Republic

Then also, it is forgery to issue or use a document, which is exhausted or cancelled, with
the intent that it may pass or have the effect as if it were not exhausted or cancelled
- section 164(2)
- see also R v. Ritson

So, for instance, if A. being the owner of an automobile insured with Donewell
Insurance, alters the date of expiry of the insurance policy to enable him make a claim in
respect of his automobile, he will be guilty of forgery

It is also forgery if a person makes or alters a document in his own name if he does so
with the requisite mens rea of the offence of forgery
- section 164(3)

However, it is not forgery if a person makes or alters a document in a name which is not
his real or ordinary name unless he does so with the requisite men rea of the offence of
forgery
- section 164(4)

Thus, if a person lives under an assumed name, it is not forgery if he executes a

document in that assumed name, unless he does so with the requisite mens rea of the
offence of forgery – it is the intent that matters most

Making a document is different from altering it

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

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

Unlawful Entry

By section 152, the offence of unlawful entry is a second degree felony

The offence is committed only in relation to buildings

The building need not be dwelling house or a completed one

The area enclosed by a wall around a building is not a building

Thus, if the accused is arrested after scaling the wall around a building, he ma be charged
with being on premises for unlawful purpose and not unlawful entry

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To constitute entry, it must be shown that either the whole or some part of the body of the
accused or an involuntary agent entered the building

To avoid a charge of unlawful entry, a person must ensure that no part of his body or any
part of his involuntary agent enters the building

Thus, where in breaking a window with the intent of stealing property in a house, the
accused’s finger went within the building, it was held to be sufficient entry
- R v. Davis

We know that the effect of section 13(1) is that a person who intentionally causes an
involuntary agent to cause an event is deemed to have caused the event

And we also know that an involuntary agent may be an animal or anything

Thus, a person who with intent to steal, pushes into a building, a stick or iron or any
instrument adapted to be able to take from an object from a building without actually
physically entering the building, will still be guilty of unlawful entry

So much for entry – but what makes the entry unlawful

The answer to this lies in section 153

Entry is unlawful if a person enters a building where he has no lawful right to do so or

where a person enters a building without the consent of the person who is able to give
consent for the purpose for which the person enters

It may be a defense if the accused entered the building under a mistake or ignorance of
fact in good faith

Unlawful entry is not a strict liability offence – prove of the mens rea is essential

Therefore, merely entering a building without the lawful right to do so or without the
consent of a person who is able to give consent will not do
It must be established that the accused so entered the building with the intention of
committing a crime
- section 152

The absence of this factor inures to the benefit of the accused

- Kanjarga v. The State

However, where the accused, without lawful excuse, is in possession of a tool or an

implement adapted or intended for use in unlawfully entering a building, he will be held
to have committed a misdemeanor
- section 154

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Being on Premises for Unlawful Purpose

This offence is a misdemeanor

The actus reus of the offence is that you are found in or about a market, wharf, jetty,
landing place, vessel, verandah, outhouse, building, premises, gateway, yard, garden, or
an enclosed piece of land

The mens rea is that your presence in or about such premises must be for an unlawful
purpose
- section 155
- see also Amoah v. The State

The phrase “in or about” appears to suggest that the accused need not have actually
entered the premises or building

Therefore, it seems that it is sufficient if the accused is found or seen loitering or

wandering about the premises for an unlawful purpose

Trespass

Section 157 deals with trespass

Trespass to land under Act 29 are of two types – the first type is entering upon land
unlawfully and the second type is entering upon land lawfully but subsequently engaging
in conduct which renders the continued stay of the person on the land as trespass

The first type of trespass include:

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

The second type of trespass include:

- having lawfully entered on a land but acts in an insulting, annoying or
threatening manner
- having lawfully entered on land and remains on same after having
been lawfully required to depart from the land

In all these case, it must be shown that the accused is not the owner or occupier of the
land – therefore, the offence may not lie if the accused is a tenant or lessee or attorney or
agent of an owner or occupier
- see section 156

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Offences Involving Damage to Property

Unlawful Damage

This is what is usually referred to as arson

Read sections 172 – 175

The important consideration here is that the accused caused the damage intentionally –
thus, accidental or negligent damage will not suffice

The damage must also be unlawful – that is, the accused had no legal justification for
damaging the property

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