THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW

NAME: MENEN CHANDA

COMPUTER NUMBER: 2020087411

LECTURER: DR LWATULA

COURSE: CRIMINAL LAW

COURSE CODE: LPU 2940

TASK: ASSAIGNMENT 1

DATE DUE: 16TH AUGUST, 2023

 Assessment of Mr. Evans’s Criminal liability
In order to properly assess the elements of the crimes committed, legal issues that arise and
their defences, we must properly understand the facts of the case. According to the facts, Mr.
Evans Kayombo, while drunk broke into Miss Mary Chanda house at night thinking it belonged
to his old girlfriend Miss Barbra Banda, then advanced to force her to the floor and had carnal
knowledge with her, punched her in the face and then later took her phone worth K5000.00
which the victim was holding and escaped the premises. Assessing the facts, there are four legal
issues that arise.

The first issue that arises is that of housebreaking and burglary. The Penal code under
section 303 defines breaking and entering as any breaking and entering any dwelling house with
intent to commit a felony therein; or having entered any dwelling house with intent to commit a
felony therein, or having committed a felony in any such dwelling house, breaks out thereof; is
guilty of the felony termed "housebreaking" and is liable to imprisonment for seven years. If the
offence is committed in the night, it is termed "burglary" and the offender is liable to
imprisonment for ten years. It has been clearly shown that the physical element (actus reus) of
the crime had been committed. Mr. Evans did indeed break into the house of Miss Mary at 05:59,
which in a way constitutes as day, though claiming without the intention to steal anything or
commit any other felony. Mr. Evans, though not proven, it could be said that he had the intention
to create an offence, which would attract the crime of burglary or he did not have the intention of
raping the victim at the time that he was breaking into the house would still be liable for burglary
because of the mens rea of intending to commit an offence whilst in the building, and an actus
rea of committing an offence of recklessness. In the case of Fatyela v The People1, it was stated
that according to S15 of the penal code, night is defined as being the interval between 7 o’clock
and 6’oclock in the morning hence Mr. Evans breaking in at 05:59 constitutes as burglary.

The second legal issue is that of forcing Miss Mary to have carnal Knowledge with Him (Mr.
Evans). The penal code of Zambia defines such an act as, any person who has unlawful carnal
knowledge of a woman or girl, without her consent, or with her consent, if the consent is
obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm,
or by means of false representations as to the nature of the act, or, in the case of a married
1
(1966) ZR 135 (HC)
woman, by personating her husband, is guilty of the felony termed "rape". The case of R v
Yohani2 (1939), it was established that actual penetration had to be present for the crime of rape
to be committed and by the fact that it had already been shown in the facts that Mr. Evans did
forcefully have carnal knowledge with her, he is liable for the crime and is liable to be
imprisoned for life or as the court chooses due to the circumstances. In Zambia, rape is
committed where the accused person, has carnal knowledge with a girl without her consent or
has carnal knowledge of a woman or girl with her consent because she feared the infliction of
bodily harm3. The crime of rape has little to no defences, because even if Miss Mary later

consented or not, in the case of Olugboja4, the victim did not struggle or resist when the

appellant had intercourse with her, he was convicted of rape and appealed it was established that
the test is not ‘was the act against her will?’ but ‘was it without her consent” It is therefore
wrong to assume that the woman must show signs of injury or that she must always physically
resist before there can be a conviction for rape. According to Tembo v. The people5, it was held
that there should be medical evidence to support the claim of rape.

The third legal issue is Battery and assault. Assault and battery are elated but distinct crimes,
battery being the unlawful application of physical force to another and assault being an attempt
to commit battery or an act that that causes another reasonably to fear imminent battery. No
minimum degree of force is necessary to constitute a battery. A mere touch is sufficient R v
Fagan 6 and force need not be applied directly. An accident or ordinary negligence that results in
injury is not criminally punishable as battery unless it occurred during the commission of another
unlawful offense. Generally, one does not commit battery unless one acts with intent to harm or
with gross criminal negligence involving a high degree of carelessness 7. In the situation of Mr.
Evans, it is clear that he battered Miss Mary by punching her in the face. In R v Miller 8 it as held
that any hurt or injury which interferes with the health or comfort of the victim. Which means
according to the penal code section 248, any person who commits an assault occasioning actual
2
(1939) 2 NRLR 152
3
Kalusika Criminal Law in Zambia: Doctrine and Practice (2020)
4
(1982) QB 320 (CA)
5
(1966) ZR 126 (HC)
6
(1969) 1 QB 439.
7
Britannica (2023)
8
[1954] 2 All ER 529
bodily harm is guilty of a misdemeanor & is liable to imprisonment for five years. Includes any
harm or injury whether physical or mental which interferes with health or comfort of the victim.
Under this, Mr. Evans is liable for battery and assault occasioning actual bodily harm.

The fourth legal issue is that of theft. For the crime of theft to be established, there must be
fraudulent intent, permanent deprivation and actually taking something that does not belong to
the victim. It has clearly been shown that Mr. Evans took the phone with an intention of keeping
it. Theft had been shown and according to the penal code, Mr. Evans is liable for 5 years’
imprisonment.

The possible defenses that can be used by Mr. Evans is that of intoxication and mistake. Under
intoxication, the penal code of Zambia, section 13, Intoxication shall be a defence to any
criminal charge if, by reason thereof, the person charged at the time of the act or omission
complained of did not know that such act or omission was wrong or did not know what he was
doing and the state of intoxication was caused without his consent by the malicious or negligent
act of another person. In the case of Lubendae v the people9, it was seen that evidence of heavy
drinking even to the extent of affecting co-ordination of reflexes is insufficient in itself to raise
the question of intent unless the accused person’s capacities were affected to the extent that he
may not have been able to form the necessary intent.. The accused person’s capacities have to
affect to the extent that he may not have been able to form necessary intent.

Under mistake, section 10 of the Zambian Penal code states that a person who does or omits to
do an act under an honest and reasonable, but mistaken, belief in the existence of any state of
things is not criminally responsible for the act or omission to any greater extent than if the real
state of things had been such as he believed to exist. The operation of this rule may be excluded
by the express or implied provisions of the law relating to the subject.

If Mr. Evans can prove beyond reasonable doubt that he actually did mistake Miss Mary for his
old girlfriend Miss Barbra Banda, it is possible for him to escape criminal liability.

9
(1983) Z.R. 54 (S.C.)
BIBLIOGRAPHY
1. Britannica (2023) Assault and Battery. Accessed on 13th August, 2023 at
https://www.britannica.com/topic/assault-and-battery
2. Simon Kalusika Criminal Law in Zambia: Doctrine and Practice (2020)

CASES
1. Fatyela v The People (1966) ZR 135 (HC)
2. Lubendae v the people (1983) Z.R. 54 (S.C.)
3. Olugboja (1982) QB 320 (CA)
4. R v Fagan (1969) 1 QB 439.
5. R v Miller [1954] 2 All ER 529
6. R v Yohani Mporokoso (1939) 2 NRLR 152
7. Tembo v. The people (1966) ZR 126 (HC

STATUTES
1. The Penal Code of Zambia