UNIT 1 -

INTRODUCTION TO
CRIMINAL LAW
 Learning Outcomes
By the end of the lesson you should be able to:

1. Define a crime
2. Describe Criminal law
3. Appreciate the purpose and sources of criminal law
4. Identify the classification of offences
 What is Criminal law?

A series of rules aimed at controlling behaviour.

It functions to stipulate standard of behaviour regarded as
permissible – controls social behaviour
State has discretion in determining what action is to be
regarded as an offence.
What makes criminal law different from other branches of
law is because breaching rules of CL leads to the sanction –
punishment.
i.e. – unlawful killing of another leads to a conviction of death
or life imprisonment S201 PC
 What is Criminal Law
Factors considered in making a determination whether a
certain type of behaviour should be criminalised or not:
 Harm caused
 Harm risked
 Threat to economic & social stability posed by the activity ( for
instance offences against the public- Treason, unlawful
assembly)
 To a certain extent, CL is regarded as a reflection of society’s
moral values and principles ( Prohibition of same sex
relationships )
 Defining a Crime
Absence of an agreed definition of crime
Duty of defining a crime is vested in criminal law lawyers &
criminologists/academics to clarify the notion of crime by
providing a definition that is precise & can be used to identify
quality of an act or omission & what makes an act or omission
an crime (offence)
Main difficulty faced in defining a crime stems from the fact that
crimes incorporate different types of conduct & vary not only
from time to time but also from place to place
 Defining a Crime
Therefore defining a crime has proved not to be a
straightforward matter ; despite the difficulties academics
have come up with several propositions;
Example:-
Board of Trade v. Owen (1957) House of lords decision –
accordingly ‘a crime is an unlawful act or default which is an
offence against the public & renders the person guilty of the
act liable to legal punishment’
 Board of Trade v. Owen
1. ‘an unlawful act or default’
2. It is ‘an offence against the public’
3. A person who commits it will be subject to prosecution &
charged as ‘guilty’ – crime against society as a whole.
4. Convicted person would that suffer some sort of penalty.
5. Penalty is imposed as a legal requirement.
 Halsbury’s laws of England

‘A crime is a wrong which affects the security or well- being

of the public generally so that the public has an interest in its
suppression’

Conduct – crime – Public involvement – It is in public interest

to have a clampdown in crime.
 Nature of the concept of crime
Nullum crime sine lege - no crime without law
Nullum crime sine lege praevia – prohibits retrospective laws
In Zambia Article 18(8) of the Constitution of Zambia provides:

A person shall not be convicted of a criminal offence unless that

offence is defined and the penalty is prescribed in a written law.

Therefore in order for a conduct to be an offense/crime in

Zambia it must have a legal basis.
 Sources of Criminal Law (I)
1. The Constitution
2. Statutory law
3. Case law
4. Common law
5. Text books
 Classification of Offences
Felony – is defined by the Penal code as an offense which is declared by law to
be a felony,.(S.4b PC) Ordinary felony means wrongdoing. Note Under PC
felonies are considered to be more serious offences. Examples of felony incest,
murder, rape, robbery, theft)

Misdemeanour – any offense which is not a felony (PC s4b) - are considered as
less serious i.e. common assault.
 Classification of Offences Cont’d
1. Cognisable offences - ‘an offense for which a police may arrest without a
warrant ‘ sec 2 CPC, Cap 88.
2. Non- cognisable offences – are offences which the police officer may not
arrest without a warranty.
• Offenses triable by different courts for instance;
1. Offences triable by subordinate Courts under the direction of the High Court
( i.e. Magistrate) As a class of offences e.g. Common assault, defilement,
theft
2. 2. Offences triable by the High court serious offences (Treason- overthrow or
intention to overthrow the government by law established

.
 Conduct and Result Crimes
1. A conduct crime is where the conduct used is the offence, and there
is no required result element. For example theft, the conduct of
taking someone else's possession is the theft, there is no required
result such as the person realizing etc.
2. A result crime is a crime which has a result element and is where a
required result must happen for the offence to be committed. An
example is murder, if you attempt to murder but the person does
not die then you cannot be liable for murder, of course you would
be liable for other offences but since the other people did not die
(the required result) there is no murder.
 Standard of Proof
The accused in criminal Law is always granted the benefit of doubt –
presumption of innocence Article 18 (2) (a)
Therefore conviction only follows after it is established that the
accused is in fact of guilty.
 There are two different kinds of burden of proof;
1. Legal burden of proof – burden of the prosecution is required to be
beyond reasonable doubt – sometimes this burden of proof shifts
onto the defendant
2. Evidential (burden of) proof – can lay on either party but is
normally the accused’s burden to raise a defence and prove the
requisites of that defence
 Criminal Justice System

1. The law enforcement component – Prevention of crime, tracing &

arresting suspected offenders
2. The prosecution component- charging & prosecuting alleged offenders
3. The Courts Component – determines whether the offender is guilty or
innocent, responsibility of sentencing if suspect found guilty
4. Correctional component – responsible for executing the punishment
imposed. Treat offender with the view of positively changing his/her
behaviour for the purposes of protecting the community.
5. Welfare & remedial which would offer remedial services to the
released offender within the community
Read the following cases on Burden of Proof

• Woolmington v DPP [1935] AC 462

• Mwewa Murono v The People [2004] Z. R. 207
Courts Vested with Criminal Jurisdiction
Supreme Court
Court of Appeal
High Court
Subordinate Court
Local Court
 ELEMENTS OF THE CRIME

• 1st – actus reus- Prohibited conduct ( rape, murder)

• 2nd Mens Reus – guilty mind – The state of mind required or
fault which is required in the definition of the crime in question.

• The phases actus reus & mens rea derived from Latin maxim:
actus non facit reums mens sit rea – There cannot be a legal
guilt where there is no moral guilt.
END OF LECTURE
UNIT 2 - ACTUS REUS
1. CONDUCT MUST BE
VOULUNTARY
CONDUCT MUST BE
VOLUNTARY
• Meaning of Voluntary – “where the muscular movement of the
accused is under his or her control & under the direction of the
accused conscious mind” – Hill v Baxter (1958) QBD
Facts
The defendant (B) was charged with dangerous driving. He claimed to have no memory from an early
point in his journey to immediately after the incident. He contended that he had been overcome by a
sudden illness and was therefore not liable under criminal law.
Issue
At first instance, it was accepted that B was “unconscious” at the time of the accident and,
accordingly, the charges were dismissed. The prosecutor appealed and argued that having found that
B had exercised skill in driving immediately prior to the incident it could not also be found that he was
unconscious at the same time. B argued that whilst he was driving, he was driving in a state of
automatism and he lacked mens rea.
Held
The Court noted that the relevant offence in the Road Traffic Act 1930 contained an absolute
prohibition and raised no question of mens rea. The key question was whether the defence of
automatism applied. The onus of proving automatism rested with B given that it was a fact exclusively
within his knowledge. The defence of automatism, in effect, says that the accused did not know or
appreciate the nature or quality of his actions. In this sense, it gets very near to the defence of
insanity. There was no evidence in this case that B was suffering from a “black-out.” His own evidence
was consistent with falling asleep or not paying proper attention. Therefore, it was improper to find
that B was not fully responsible in law and the appeal was allowed.
 CONDUCT MUST BE
VOLUNTARY CONT’D

Involuntariness – A has not committed

the Actus Reus
Where the accused person has not
voluntarily engaged in actus reus, this
is termed as automatism and is a valid
defence under the law. See section 9 of
the Penal Code.
 AUTOMATISM
Bratty v AG for Northern Ireland (1963) AC 386:
Lord Denning : Automatism - an act done by
the muscles without any control by the mind
such as a spasm, a reflex action, or a convulsion;
or an act done by a person who is not conscious
of what he is doing such as an act done whilst
suffering from concussion or whilst
sleepwalking
 Further case readings on Automatism
Kazembe and Zebron V. The People (1969) ZR 22 (C.A)
R v Bell (1984) ALL ER 842
R v Bailey (1983) 1 WLR
 AUTOMATISM CONT’D -
ELEMENTS
1. Total destruction of voluntary control – Attorney General’s
Reference (No. 2 of 1992) [1994] QB 91 Court of Appeal
* “the defence of automatism is only available if the
defendant suffers a total destruction of voluntary control
and impaired, reduced or partial control is insufficient”.
 AUTOMATISM CONT’D -
ELEMENTS
2. Caused by an external factor –
 R v Quick [1973] 1 QB 910 Court of Appeal
 R v Bingham [1991] Crim LR 433
 R v Hennessy [1989] 1 WLR 287
 R v Lipman [1970] 1 QB 250
AUTOMATISM CONT’D -
ELEMENTS

3. The defendant is not responsible for his state

of mind
* R v sulivan compare with decisions in Quick
and Bailey ibid.
2. OMISSIONS
 2. Omissions
Most crimes are committed by a positive action (i.e.
murder, theft, rape etc)

However in certain circumstances, a failure to act may

result in the imposition of criminal liability
 Omissions CONT’D
 General rule - no liability for failure to act

Exceptions:
1. Where statute imposes a duty to act i.e. wilfully neglecting to provide for
a child (S169 PC)

2. Where a duty to act arises from a contract – Pittwood (1902) 19 TLR

37
 Omissions CONT’D
3. Assumption of responsibility - There is a need to establish that the
accused was in fact under an obligation to act – Instan (1893) 1 QB 450;
R v Stone and Dobinson [1977] 1 QB 354
 Omissions CONT’D

4. Creation of a danger and a failure to prevent the occurring harm:

*R v Miller (1983) 2 AC 161 - D was convicted of arson contrary to section 1(1) &
sec 1(3) of the Criminal Damage Act, 1971.
D appealed against conviction to court of appeal & HL, Both courts dismissed
the appeal on the basis that D had failed ‘to take measures that lie within his
power to counteract the danger that he himself had created’
DPP v Santana – Bermudez [2004] Crim CR 471
 Omissions CONT’D
5. Other Cases – Discretion of the court –did D act in the way a reasonable
person would act put in his/her position? – R v Speck [1977] 65 Cr
App R 151
3. CAUSATION
 Causation

The major question is whether the prohibited act of A caused the

resultant harm?
R v Kimsey [1996] Crim LR 830
R v Pagett [1983] 76 Cr App R 279

• There are two types of causation:

1. Legal
2. Factual causation
 FACTUAL CAUSATION
 factual causation is determined by the use of ‘but for test’
-R v White [1910] 2 KB 124 – established the but for test
-Haystead v Chief Constable of Derbyshire [2000] Crim LR 758
 Legal Causation

Prosecution needs to prove that D’s act was a substantial and

operating cause – R v Cheshire (1991) 3 ALLER 670

The Defendant need not be the sole cause of the death but the
act must be more than a minimal cause of the result.
-Read: Patson Simbaiula V The People (1991 - 1992) Z.R. 136 (S.C.)
-Refer to s207 of the Penal Code on Causation
Chain of causation may be broken by a novus actus interveniens (
a new act intervening)

This can be the act of a 3rd party, an act/ omission of the victim, or
an ‘act of God’

Question is whether the intervening act or event is so significant

as to become the new sole cause of the result
Look at – (Herring, 2008)
 Causation CONT’D
In Pagett (1983) 76 Cr. App. R. 279 Lord Goff said that the Latin
phrase means the intervening ‘act was so independent of the
act of the accused that it should be regarded in law as the cause
of the victim’s death to the exclusion of the act of the accused’
 NOVUS ACTUS INTERVENIENS –
ACTS BY 3RD PARTIES
1. Free and voluntary acts of 3rd parties
2. Lawful acts of 3rd parties
a. Lack of legal capacity- R v Micheal (1840) 173 ER 867 (PC – Zambia; Art
14 (1) (2)
b. Lack of mens reus
c. Defences (legally justified) – R v Pagett (1983) 76 Cr App R 279
 NOVUS ACTUS INTERVENIENS –
ACTS BY 3RD PARTIES

3. Medical treatment – accused tries to blame it on

medical treatment – S207 PC

- R v Malcherek and Steel (1981) 2 ALL ER 422. Court of Appeal

 NOVUS ACTUS INTERVENIENS –
ACTS BY 3RD PARTIES CONT’D
 R v Jordan (1956) 40 Cr App R 153 – wrong medication given to a recovering patient
 Raymond Mweetwa Banda v The People S.C.Z. Judgment No. 17 of 1984
 Kazembe And Zebron V The People (1969) Z.R. 22 (C.A.)
 People v Mwelwa [2011] ZMHC 100

 R v Cheshire (1991) 3 ALL ER 670 – Serious wound but medical treatment was done
negligently

 Court considers two issues generally:

I. How negligent or wrongful was the treatment?
II. Was the original wound still an operating and substantial cause?
NOVUS ACTUS INTERVENIENS –
ACTS/OMISSIONS BY THE VICTIM
1. Acts of the Victim
Roberts (1971) 56 Cr App R 95
reasonable person test applied
• Kennedy (No.2) (2005) 2 Cr App R 348
2. Omission of the Victim: Blaue (1975) 3 ALL ER 466
NOVUS ACTUS INTERVENIENS –
ACTS/OMISSIONS BY THE VICTIM
3. Condition of the victim – thin skull rule – Hayward (1908)
21 Cox CC 692
UNIT 3 - MENS REA:
 Learning Outcomes
a. Be able to explain the notion of mens rea (mental element)

b. Be familiar with the different elements of mens rea; intention/motive,

recklessness, negligence & knowledge.

c. Be able to distinguish the following concepts; Intention, Motive, Knowledge,

Negligence & Recklessness
 MENS REA; WHAT IS IT?
State of mind expressly/ impliedly required for the definition of an
offence charged

Varies from offence to offence

(Herring, 2008)
TYPICAL INSTANCES OF MENS REA

- intention

- recklessness

- knowledge ; and

- Negligence
 INTENTION
1. Intention - X intends a consequence where x acted (omission) with the
aim of bringing about that consequence.
• Intent: This is the explicit and conscious desire to commit a dangerous or
illegal act. For example, if a person targets and assaults someone with the
goal of inflicting harm on the victim, he is displaying criminal intent.

2. Oblique intention- Objective/subjective test?

 OBLIQUE INTENTION
TEST

Woollin (1999) AC 82 HL:

a. Consequence virtually certain result of the act

b. D appreciates it is a virtually certain consequence
 Recklessness
 Recklessness: Recklessness is the decision to commit a certain action despite knowing
about associated risks. For example, if a person causes injury while driving drunk, he
can be found guilty of recklessly causing harm. He did not intend to hurt anyone, and
did not expect it to happen, but he knew he was taking the risk of hurting someone by
driving while inebriated.
Test for recklessness: (Cunningham case)
a. foreseen a particular harm but goes on to take it
b. The risk must have been unreasonable for him to take it
See the following cases:
 The People v. Lawrence Mumanga (1985) ZR 35 High Court (I)
 Cunningham (1957) 2 QB 396 CCA
 Knowledge
Knowledge: This term applies if a person is aware that his or her actions will have
certain results, but does not seem to care. For example, if a person violently lashes out at
someone, inflicting harm may not be her primary goal. However, if she was aware that
harm would be a predictable result of her actions, then she is guilty of having criminal
knowledge.
Actual knowledge, Belief; Wilful blindness (look at PC 318)
Read: DICKSON SEMBAUKE v THE PEOPLE [1988 – 89] ZR 144 [SC]
 Negligence
Negligence: This is the mildest form of criminal culpability. A person commits
negligence when she fails to meet a reasonable standard of behavior for her
circumstances. For example, if a child is injured because his or her caretaker
failed to perform her duties, she may be guilty of criminal negligence.
Compares the act of D with a hypothetical reasonable man.
An act that falls below the expected standards of a reasonable prudent
ordinary person
Relevant in manslaughter cases – duty of care owed –
look at: R v Adomako [1994] 3 WLR 288
People v Muzungu (2011) ZMHC 54
The People v. Zulu (1968) ZR 88 HC
 Coincidence of mens rea and
acteus reus
Coincidence of mens rea and actus rea – both must occur at
the same time
Coincidence of actus reus and mens rea is the principle that both the
mental and physical element of the crime must be present in order for
someone to be liable for murder. This is often called the
contemporaneity rule.
Read:
• Thabo Meli v R (1954) 1 WLR 228
• R v Church [1965] 2 WLR 1220
 Transferred Malice
Transferred Malice –If the defendant, with the mens rea
of a particular crime, does an act, which causes the actus
reus of the same crime, he is guilty, although the result,
in some respects, is an unintended one
R v Latimer (1886) 17 QBD 359
Kalenga v the People (2012) ZMHC 70
R v Mitchell [1983] QB 741 Court of Appeal
UNIT 4 - STRICT
LIABILITY
 WHAT IS A STRICT
LIABILITY OFFENCE?

 crimes in which the D is held liable for a criminal offense he committed, even if mens
rea is absent

 D might not intend the harm nor even be aware that his actions are forbidden
 (Kulusika, 2006)
 STRICT LIABILITY CONT’D
 Most cases of strict liability are minor misdemeanours – NOT AS SERIOUS AS
FELONIES

 do not require blameworthiness thus court does not require the prosecution to
prove D’s mens rea beyond reasonable doubt.
 STRICT LIABILITY CONT’D

Applies to regulatory offences mostly thus they are not purely criminal
offences

Sale of food, alcohol and drugs; prevention of pollution; safety at work

 EXAMPLES
 Over speeding

 Drunken driving

 Driving past a stop sign

 STRICT LIABILITY CONT’D

Patel’s Bazaar Limited v The People (Court of Appeal for Zambia, 1965)

Contravention of S79 (1) of the Public Health Ordinance (Cap 126):

 No person shall sell..without reasonable excuse any food for man in
an..unwholesome state.
 STRICT LIABILITY CONT’D

The following are useful considerations in ascertaining the intention of the

legislature:
1. The reasonableness of holding that mens rea is not an ingredient of the
offence;
2. The object & scope of the prohibition
3. The ease with which the purposes of the statute could be evaded if the
defence of absence of mens rea were to succeed
4. The nature & extent of penalty
(Kalusika, 2006)
 DEFENCES TO STRICT
LIABILITY OFFENCES

 Copperfields Cold Storage Co Ltd v R. 5 NRLR 248:

 “the onus is on the accused of establishing that he had reasonable excuse and is
not on the prosecution to show that he had not”.
 DEFENCES TO STRICT
LIABILITY OFFENCES

 Possible for D to plead a general defence if the defence is not a denial of mens rea –

 Insanity, intoxication can’t be used as defences

 Herring, 2008)
Read the following cases:

 Cundy v. Le CoCQ (1884) QB Division 207

 Sweet v Parsley [1970] AC 132 House of Lords
 Monga V The People (1973) Z.R. 188 (H.C.)
 Whitehead V The People (1968) Z.R. 9 (H.C.)
UNIT 5 - HOMICIDE
 Homicide
• In practical terms the accused is alleged to have committed one of the
following serious offences; murder, manslaughter, infanticide,
genocide, causing death by reckless or dangerous driving. This form of
causing death to another is referred to as unlawful Homicide
• In CL persons who cause the death of another person are not charged
with Homicide – they are charged with murder or a lesser offence
manslaughter
• Murder & manslaughter – have the same unlawful conduct – causing
death (AR)
• However state of mind (MR) of the accused (A) at the time of killing is
different
• Murder A intends to kill or cause grievous harm
• Manslaughter A might have been reckless or negligent in causing
death of the victim
Murder- Definition - Institutes of the Laws of England, 1797):

- Absence of definition of murder in the PC

Chief Justice Coke defines murder as follows;

Murder is when a man of sound memory & the age of discretion

unlawfully killeth… any reasonable creature in rerum natura under the
king or queen’s peace with malice aforethought,….so as the party
wounded or hurt etc., die of the wound or hurt etc….
Features of Coke’s definition of Murder
(i) Sound memory & age – excludes insane persons, persons below the
age of eight & those between the age of 8 & 12 in exceptional
circumstances
(ii) reasonable creature – human being
(iii) rerum natura – ‘in being’ raises issues in relation to the fetus – such
as at what stage do we treat an unborn child as a human being?
A child becomes a person capable of being killed when it has
completely proceeded in a living state from the body of its mother -
S208 PC
(iv) Under the king or queen’s peace – refers to protection of a
sovereign state, excludes those who kill in the military force if operating
under duty or kill enemy in an armed conflict that the sovereign state is
involved. (i.e. prisoners of war whether combatant or non combatant
- However excludes the killings of rebels or terrorists fighting a
government established by law
- Under the PC death must occur within a year & a day or else the
person is deemed not to have killed another s. 209 PC
(v) unlawfully killeth – The killing must be unlawful – therefore the
killing of a human being in self defence or prevention of crime is
accepted

Killing undertaken by an officer when they are lawfully executing their

duty, killing as a result of medical operation – provided that set
procedures/requirements are met.
The Law of murder
• S200 PC – under the section murder is committed when a human
being kills another being with the most blameworthy state of mind
• S201 PC – punishment for murder is stipulated as (i) death or
• (ii) any sentence other than death (extenuating circumstances would
be considered based on applying the reasonable man test – standard
of behaviour of an ordinary person of the community which the
convicted person belongs)
Murder- Actus reus (AR)
• S200 death of another person has to be as a result of an unlawful act
or omission
• AR - unlawful act or omission - causes death
• The homicide in the unlawful killing of a human being by another
human being death needs to occur within a year & a day of D’s acts
(S209(i)) PC

A person is not deemed to have killed another if the death of that

person does not take place within a year & a day of the cause of death
Mens rea of Murder - I
• Malice aforethought- most blameworthy state of mind or the intent to
cause grievous bodily harm
• Malice aforethought according to the case The people v. Njovu as per
Chief Justice Blagden ‘relates to the state of mind of the accused
person at the time he caused the death of the deceased’
• S200 PC a person can only be convicted of murder if there is the
existence of malice aforethought
Mens rea of Murder - II
• MR of murder – S204 PC sets out three kinds of malice aforethought & proof of any
one or a combination will satisfy the requirements of proving mens rea beyond
reasonable doubt leading to a conviction of the accused

(I) Express malice – s204(a) – intention to cause death or do grievous harm

(II) Implied malice - s204(b) knowledge that act or omission is causing death or led to
death or grievous harm – ( see Mbomena Moola case)

(III) Constructive malice - s204(c) intent to commit a felony – involves statutory

interpretation leading to establishing a causal link - It is present if the D causes
death while committing or attempting to commit a felony - Chitenge v. The people
(1966) ZR 37
The Definition Of Malice Aforethought
• The people v. Njovu (1968) ZR 132 (HC)
• In order for the D to be charged of murder three factors had to be
established:
(i) That the D caused the death of the deceased
(ii) By an unlawful act &
(iii) With malice aforethought
• In order for malice aforethought to be established in this case the
prosecution had to prove that the D either had actual intention to kill or
cause grievous harm to the deceased
• Or that he was doing what was likely to cause death or grievous harm
• Look at the following cases:
• THE PEOPLE V KAUMBA (2012) ZMHC 12 – theft case –stabbed victim who died – d
denied the charge
• GREEN MUSHEKE KUYEWA V THE PEOPLE (1996) S.J. 8 (S.C.) – murdering a young
girl – certain parts removed – d tried to run away, was identified by a 13 year old
girl, took the police where the body was – liable for murder – maliceaforethought
established
• THE PEOPLE V EVERISTO BUNDA, ZABRON MUMBA AND EVERINE KAMWATE
(1992) S.J.
• MATTHEW NYIRENDA V THE PEOPLE (1977) Z.R. 425 (S.C.) – struck grandfather on
the neck with an axe
• JUSTIN MUMBI V THE PEOPLE (2004) Z.R. 106 (S.C.)
• DICKSON SEMBAUKE CHANGWE AND IFELLOW HAMUCHANJE V THE PEOPLE (1988
- 1989) Z.R. 144 (S.C.) –(knowledge)
• Jack Chanda and Kennedy Chanda v the people SCZ 29 of 2002 – extenuating
circumstances: witchcraft, intoxication, failed defence of provocation
Manslaughter - I
• AR for Manslaughter & murder is the same (ref s200 PC)
• S199 any person who causes death of another person by an unlawful
act or omission is guilty of a felony termed manslaughter
• AR- unlawful act or omission - causes death
• For an act to be regarded as unlawful both actus reus & any necessary
mens rea must be present
• In manslaughter of every kind there must be a guilty mind without it
the A must be acquitted (R v. Lamb)
Manslaughter- II
• S199 provides an explanation as to when the offence of manslaughter is said
to have been committed.
• No definition of manslaughter
• Manslaughter is a felony
• S199 – accordingly ‘an unlawful omission is an omission amounting to culpable
negligence to discharge a duty of preserving life or health’
• It is based on failure to perform with due care in order not to endanger a life
or health
• It is intended to cover professional cases where there is a failure to discharge a
duty due to carelessness or recklessness
• S202 – penalty of manslaughter is stipulated – maximum life imprisonment
Manslaughter - III
• There are two types of Manslaughter; Voluntary Manslaughter &
Involuntary Manslaughter
(i) Voluntary Manslaughter – This is where the A kills another person
with the MR of murder but is not guilty of murder because A killed
under provocation or DR which operates to reduce
blameworthiness to manslaughter
Example of Voluntary Manslaughter

• Where an accused kills under provocation

• i.e. The people v. Njovu (1968) ZR 132 (HC)
• A killed with MR for murder
• But was not guilty of murder because he was provoked to kill
• Provocation – mitigation circumstances which operates to reduce
criminal liability to manslaughter.
Provocation
• S.205, 206 PC
• Essence of provocation
• A kills a person in heat of passion (moment) after having lost his or her self-
control.
• Provocation need to be sudden.
• The A must have no time for passion (no moment) to cool down.
• A’s loss of control is judged against a ordinary person (reasonable) –s.206
• An average person in a similar situation.
• Concept of ordinary person is broad takes into account background,
traditions, beliefs of person.
• Contrary to common law concept of reasonable man.
Provocation
• Liyumbi v The People (1978) Z.R. 25 – slit man’s throat for moving his
box
• three elements of provocation:
1. the act of provocation;
2. the loss of self-control; both actual and reasonable,
3. and the retaliation proportionate to the provocation.
• People v Phiri and Another [2012] ZMHC 75 – Daudi Phiri Case – self
defence and provocation
Provocation
If a man kills another in consequence of reacting to sudden provocation and he so
kills in the heat of passion and before there is time for his passion to cool his guilt of
manslaughter only.

His mode of resentment must bear a reasonable relationship to the provocation. If

the mode is out of proportion to the provocation, then the principle in (1) above is
not available to him; and

A wrongful act or insult is not provocation unless it is such as would deprive an

ordinary person (of the community to which the man who kills belongs) of the
power of self-control and induce him to assault the person who does the wrongful
act or utters the insult.
 Cases
• People v Phiri and Another [2012] ZMHC 75 – Daudi Phiri Case – self defence and
provocation.
• Zulu v The People (1977) Z.R. 151 –
It is therefore incumbent on a trial judge that he should guard against drawing
wrong inferences from circumstantial evidence at his disposal before he can feel safe
to convict. The judge in our view must, in order to feel safe to convict be satisfied that
the circumstantial evidence has taken the case out of the realm of conjecture so that
it attains such degree of cogency which can permit only an inference of guilty.”
• Kalinda v The People (1966) Z.R. 29 - a confession of adultery or intention to commit
it in future, is a serious as being found fragrante delicto; thus forming the basis of a
valid defence to murder
• Simutenda v the people (1975) Z.R 294 (S.C) –axed a man he saw wearing his coat –
proportionality test
 Provocation
• Mwiimbe v The People (1986) Z.R. 15 - held that evidence of cumulative provocation
in the absence of immediate provocation cannot suffice to establish the three vital
elements of the defence to stand
• Holmes v Director of Public Prosecutions [1946] A.C. 588 - where the provocation
inspires an actual intention to kill or to inflict grievous bodily harm, the doctrine that
provocation may reduce murder to manslaughter seldom applies. Only one very
exception has been recognised, viz, the actual finding of a spouse in an act of
adultery. This has always been treated as an exception to the general rule.” - Kalinda
v The People (1966) Z.R. 29 – cheating wife, heard rumors, admitted, church elder,
told him shes leaving him to marry the boyfriend
• Makomela v The People (1974) Z.R. 254. stealing, warned if he stole again he would
be killed, discovered coming out of the house, money missing – provocation allowed
but supreme court rejected it.
Provocation
• Munkala v The People (1966) Z.R, 12 - for provocation to reduce
murder to manslaughter, it must be sudden
• Simusokwe v People [2002] ZMSC 37 – killed his boss (GF) would
pretend she's still alive and lie about her whereabouts
• (i) If a man and woman who are not married are nonetheless in a
stable relationship of intimacy, they will be treated on the same
footing as married persons.
• (ii) In a claim of provocation the reaction of the accused person must
be proportionate with the result that any evidence of excessive force
defeats the defence.
• (iii) A failed defence of provocation affords extenuation for a charge of
murder – death sentence quashed - 20 years with hard labor
Cases
• Mulenga V The People (1966) Z.R. 118 (C.A.) –
• that the appellant could have grappled with the deceased or struck
him with the gun and that he had used unnecessarry force to effect
the arrest;
• (b) that the appellant's intention was to maim the deceased;
• (c) that the appellant's intention was to do serious harm to the
deceased;
• (d) that the appellant knew that shooting deceased at short range
with the shotgun would probably cause grievous harm;
• (e) that the appellant had no intention of killing deceased.
• The appeal has been directed to three issues:
• (a) that the appellant had no malice aforethought;
• (b) that the appellant was entitled to arrest deceased and used
only necessary or at least excusable force;
• (c) that even if unnecessary force was used, the offence only
amounted to manslaughter.
Where defendant is motivated not by a revengeful desire to cause
grievous harm but rather by a lawful intention to arrest the deceased,
excessive force in the course of this attempted arrest is manslaughter,
not murder.
 Diminished Responsibility
Defence of Diminished Responsibility is introduced
under sec 12A of PC
However a successful defence of diminished
responsibility does not lead to an acquittal
It reduces murder to manslaughter
Defence is only available to the offence of murder
Diminished Responsibility cont’d
• Defence of diminished responsibility is intended to provide a
partial excuse for offenders with mental disorders who could
not rely on sec 12
• In order for defence to be accepted by Crt, three elements
must be proved (under S12A)
1. X must be suffering from an abnormality of mind
2. This must be due to one of the causes enclosed under sec
12A(1) PC – Thus (i) condition of arrested development of
mind or (ii) a condition of retarded development of mind or (iii)
any inherent, or induced by disease or (v) induced by injury.
3. Any one of these causes or conditions has substantially
impaired D mental responsibility.
 ‘Abnormality of Mind’
• In order to establish Abnormality of Mind medical evidence is
required ( R v. Byrne [1960] 3 ALL ER 1.
• Abnormality of mind Lord Packer, in R v Byrne (1960) ……
‘Abnormality of mind… means a state of mind so different from
the ordinary Human beings that the reasonable man would term
it abnormal.
• Abnormality of mind could include depression, jealousy & other
conditions which have the capacity of reducing the A’s will
power to control actions.
 ‘Substantial impairment of
responsibility
• substantially impairment of responsibility suggests at least two
requirements must be met
1. The abnormality of the mind had substantial effect on the
accused capacity of judgement & understanding or control
2. Such a condition reduces in a substantial way, the accused
responsibility with the result that the accused’s criminal liability
is reduced
• What constitutes ‘Substantial impairment’ is a matter of fact
which must be proved in Court.
MVULA v THE PEOPLE (1990 - 1992) Z.R. 54 (S.C.) - For the
defence of diminished responsibility to succeed, the defence must
prove, on a balance of probabilities, that the accused's mental
responsibility for his acts or omissions in doing, or being a party to,
the killing of another was substantially impaired
Mwabuka v The People [2014] ZMSC 29
Ahluwalia, R v [1993] – depression can fall under diminshed
responsibility
R v Dietschmann [2003] UKHL 10
Involuntary Manslaughter
(i) This is where the A killed without the fault elements required for
the particular offence
- absence of malice aforethought – involuntary manslaughter
- There is two types of Involuntary Manslaughter
(i) Unlawful act (constructive) manslaughter
(ii) Gross negligence manslaughter
Example of Involuntary Manslaughter
• Subjective (reckless) manslaughter – The People v. Lawrence
Mumanga (1985) ZR 35 HC
• Despite prosecution having established beyond all reasonable doubt
that the accused shot & Killed the deceased who was in the other
hunting party
• Seeking to rely on a case of reasonable mistake of fact that the A
honestly thought he was killing an animal called Chisongo
• Crt dismissed the idea of an inevitable accident on the following basis;
 Involuntary Manslaughter – (I) Unlawful act
(constructive) Manslaughter

• Victim must have died as a result of the unlawful criminal act

• Criminal liability is said to be constructive
• The unlawful act has to be intentionally or recklessly committed by the A which
the reasonable man would foresee as liable to cause harm
• In Att-Gen’s Reference (No. 3 of 1994) (1998) it stated that in the determination of
criminal liability established on the doctrine of manslaughter Four requirements
are considered;
1 That the criminal act was intentionally or recklessly committed
2 That the act was unlawful
3 That the act was dangerous
4 That the unlawful & dangerous act caused the death
 cases
• Constain Hamwenda v The People (1980) Z.R. 63 (S.C.) - a soldier in
the Defence Forces, had discharged what he thought was an unloaded
pistol at the deceased
• People v Muzungu (2011) ZMHC 54 – reckless and negligent
• John Mpande v the people (1977) Z.R 440
• Kambarage Mpundu Kaunda v the People (1990/92) Z.R 215
Gross negligence manslaughter
• Death which is as a result of negligence & that which is as a result of
gross negligence will result to two different responses of the law. The
former under tort & the latter under criminal law.
Cicuto v Davidson & Oliver (1968) ZR 149 HC

• The plaintiff of the decreased child claimed damages against the D

alleging negligence in that
(a) They failed to take any or adequate step to diagnose the child’s
illness intussusceptions of the large bowel;
(b) They failed to obtain an X-ray on the child ‘s stomach which the
plaintiff claimed would have revealed the child’s complaint
(c) They failed to accede to the father’s request for an X-ray;
Cicuto v Davidson & Oliver (1968) - II

(d) They failed to take any steps to remove or cure the

intussusceptions which was readily & easily curable by surgery; &
(e) They allowed the child to remain without any proper diagnostic or
remedial treatment from the day the child was admitted till the death
• Crt in deciding the case referred to L. J. Denning’s comments in Roe v.
Ministry of Heath where the L justice said where people suffer such
terrible consequences there is a natural feeling that they should be
compensated.
Cicuto v Davidson & Oliver - III
• However imposing liability on hospitals & doctors for everything that
goes wrong would constitute a disservice to the community at large
• Doctors would be led to think more of their own safety than the good
of their patients
• Confidence would be stifled & confidence shaken
• Must insist on due care for patients at all times & we must not
condemn as negligence that which is only a misadventure
Cicuto v Davidson & Oliver - IV
• As a result crt concluded that it was unfortunate that the parents in
instance case had suffered a bereavement in circumstances which
deserved their deepest sympathy But
• The misadventure could not be condemned as negligence
• However the above case on negligence is to be contrasted with the
decision in R v. Adomako [1995] 1 AC 171 HL where the defendant
was convicted for killing by gross negligence
R v. Adomako [1995] 1 AC 171 HL
• A an anaesthetist took over from another anaesthetist during the course of an operation
• Whilst he was in charge the tube which supplies oxygen (endotracheal) to the patient
become disconnected
• A will become aware of this 4 1/2 minutes later when blood pressure monitor alarm
sounded
• A carried out various checks of the equipment & administered atropine to raise the
patient’s pulse
• Patient died approximately 9 mins after the disconnection patient suffered from a
cardiac arrest which he died from
• It was only at this point when A discovered the disconnection
• A was convicted of manslaughter ( guilty of gross negligence) & appealed – appeal
dismissed
R v. Adomako
• A was guilty of gross negligence for failing to notice or respond
appropriately to obvious signs that a disconnection had occurred &
that the patient had ceased to breath
• A doctor can only be convicted of causing death by negligence if the
crt thinks that he did something no reasonably skilled doctor should
have done
2nd Example of Gross Negligence
Manslaughter
• The People v. Zulu (1968) ZR 88 HC
• Accused (A) a 28yr old was charged with manslaughter particulars
being he unlawfully killed a sixteen month old child (deceased)
• Deceased was poorly suffering from vomiting & diarrhoea
• Parents obtained medicine from a chemist in Lusaka
• Condition of the child improved but parents decided to have child
injected.
• There was evidence of the practice of giving injections by people
without medical qualification
The People v. Zulu (1968)
• Deceased’s mother made arrangements for the accused to give the deceased
some unspecified injection, presumably a drug of his choice
• A injected deceased with 10 cubic centimetres of chloroquine
• Within minutes of receiving the injection deceased died cause of death cardiac
arrest, acute heart failure following an overdose of chloroquine
• Since the A undertook to administer medical treatment by way of injection to the
deceased crt held he was therefore under a duty in law to have reasonable skill &
care in administering it
• A in breach of the duty since he possessed no skill, or training & no duty the said
omission which caused the death amounted to ‘culpable negligence’ & therefore
unlawful. A convicted of manslaughter.
• Distinguish Zulu from the case of Lungu v the People (1985) ZMSC 13 - tetanus
Therefore;
• Cases involving medical negligence fall within the jurisdiction of civil
courts – Tort law
• Cases involving gross negligence would be subject the medical
practitioners to the rigours of criminal law.
• The law requires gross (extreme) negligence for medical negligence to
become a subject of litigation where the result of medical negligence
was either death or grievous harm
 In order for a D to be convicted for killing by gross
negligence the following requirements must be
satisfied;

(i) Breach of a duty of care owed by the D to the victim

(ii) That breach ( which was grossly negligent) caused the death of the
victim ( or caused grievous bodily harm); &
(iii) That breach was more than serious to constitute gross negligence
Above is regarded as the principle of Bateman but was endorsed on
Andrews v. DPP & in Adomako.
Infanticide - I
• S.203 PC cap 87
• Where a woman causes the death of her child by a wilful act or
omission
• Child needs to be under the age of twelve months
• At the time of act or omission balance of her mind must have been
disturbed by reason of her not having fully recovered from effect of
child birth or lactation
• Such a woman is guilty of a felony infanticide
• Liable to be punished as if it were the offence of manslaughter
Infanticide- II
• Need evidence to establish that birth of the child has affected the
balance of mind of the mother or due to lactation that she causes the
death of child
• If there is evidence of serious emotional disturbance at the time of
the commission then a community sentence would be appropriate
Rosemary Chilufya V The People (1986) Z.R. 32 (S.C.)
• See S221 – Child destruction – any act not done in good faith for the
purpose of preserving the life of the mother
• Woman has to be pregnant twenty eight weeks or more
 UNIT 6 - NON FATAL
OFFENCES AGAINST THE
PERSON
1. COMMON ASSAULT
2. BATTERY
3. CAUSING BODILY HARM
4. ADMINISTERING POISON
 1. ASSAULT
 Assault - Placing someone in fear of immediate unlawful force or violence (technical’ assault).
 Actus Reus - any act including words spoken by X which causes Z to apprehend immediate &
unlawful personal violence. (shaking fist, brandishing a knife)
 Mens Rea - intentionally or recklessly causing a person to apprehend the possibility of
imminent violence
 No assault if the victim does not apprehend immediate fear – back turned to the brandishing of
the knife/ sleeping – see R v Logdon (1976) Crim LR 121 – toy gun case – common assault is
about apprehension of immediate violence.
Case: Logdon Case [1976] Crim LR 121

Facts:
he defendant pointed an imitation gun at a woman in jest. She was terrified. The defendant then told her
it wasn't real.

Held:

An assault had been committed as the victim had apprehended immediate unlawful personal violence
and the defendant was reckless as to whether she would apprehend such violence.
2. BATTERY
• Battery - actual infliction of unlawful force or violence on a person (physical
assault). There need not be an injury, merely touching is enough. R v Fagan
(1969) 1 QB 439.
Facts: (Fagan was sat in his car when he was approached by a police officer who told him
to move the vehicle. Fagan did so, reversed his car and rolled it on to the foot of the police
officer. The officer forcefully told him to move the car off his foot at which point Fagan
swore at him and refused to move vehicle and turned the engine off)
Held: It was agreed that an omission cannot establish an assault. The court held that:
• ‘Although assault is an independent crime and is to be treated as such, for practical
purposes today, assault is generally synonymous with battery.’ (at page 433)
• On this basis, it was held that Fagan’s crime was not the refusal to move the car but that
having driven on to the foot of the officer and decided not to cease the act, he had
established a continual act of battery. This meant that actus reus and mens rea were
present and as such, an assault was committed. Fagan’s conviction was upheld.
 Actus Reus – infliction of force or violence
 Mens Rea – Intentionally or recklessly inflicting force or violence on another.
 COMMON ASSAULT

Sec. 247

What is common assault?

Does common assault include battery?

See Kabika v. the People (1973) ZLR 352

 Assault
• Absence of a definition of the meaning of the terms ‘common
assault’, ‘assault’ or ‘battery’ in the PC
• Therefore the analysis of AR & MR depends on principles developed
by Crts.
 Actus reus - Assault
• Actus reus of assault is any act including words spoken by X which
causes Z to apprehend immediate & unlawful personal violence ( note
that this definition has been clarified by the decision of an English
criminal crt R v. Savage (1992) 1 AC 699
• Ist requirement is the conduct- act (Fagan v MPC (1969) 1 QB 439
• Secondly the conduct must be unlawful hence consent may lead to the
offender escaping criminal liability
• Thirdly, the threat of the application of force or violence must be
imminent
 Mens rea
• Of technical assault is the intentional or reckless causing to
apprehend the possibility of imminent violence ( R v. Savage)
• Reckless referred to is the Cunningham recklessness (Subjective)
 Battery (Physical Assault)- Actus reus
• Actus reus of battery is the act of infliction of force or violence on a
victim by the defendant
• Classic example an unwanted kiss would constitute a battery [ Dungey
(1866) 4 F & F 1066 , 176 ER 910]
• Spiting on somebody would also constitute a battery provided that it
was not accidental [Smith (1866) F & F 1066, 176 ER 910]
• Battery (Physical Assault)- Mens rea
• Is that the D intends to inflict unlawful violence (or force) on the victim
• Or it is done so recklessly (subjective recklessness)
 Assault Occasioning Actual
Bodily Harm
Sec. 248 of the PC

Actus Reus of assault Occasioning Bodily Harm from Sec. 248?

Assault Occasioning Actual Bodily Harm- any hurt or injury which

interferes with the health or comfort of the victim (R v Miller [1954]
2 All ER 529)
Mens rea?
Maxwell Chanda v the People (1971) Z.R 34 (H.C)
 Causing Bodily Harm
1. Assault Occasioning (causing) Actual Bodily Harm (AOABH)
• The law is as set out PC, Cap 87, Section 248
‘Any person who commits an assault occasioning actual bodily harm is guilty of a
misdemeanour & is liable to imprisonment for five years’
• However the section fails to define the phrase an assault occasioning actual
bodily harm
• No details or guideline as to what this might mean
• Includes any harm or injury whether physical or mental which interferes with
health or comfort of the victim.
• However section classifies the offence as a misdemeanour
• Details of nature of punishment – maximum of five years imprisonment
 Actus reus of AOABH
• The following factors are essential
1. There must be an assault
2. Which must then cause actual bodily harm
• occasioning - Causing or resulting to
• actual bodily harm – any hurt or injury which interferes with the
health or comfort of the victim [ R v. Miller (1954) 2 QB 282
• Injury need neither be major nor trivial
 Mens rea of AOABH
• Mens rea for S248 is the mens rea for assault or battery -Violence or
force caused intentional or reckless
• No need to prove any mental elements in establishing that
‘occasioning actual bodily harm (R v. Miller)
Assault Occasioning Actual Bodily Harm
• Kampangila v. The People (1969) ZR 59 (HC)
• Appellant Depson Kampangila a 26 yr old farmer was convicted of the offence of
unlawful wounding contrary to S.208(1) PC on the basis that he unlawfully wounded
his victim with a knife
• Was sentenced to 12 months imprisonment he now appeals against his conviction &
sentence
• Decision highlighted the fact that the offence of unlawful wounding was regarded as
a felony punishable with 3 years imprisonment
• The offence of assault occasioning actual bodily harm said to be a misdemeanour
liable to punishment for 5 years imprisonment
• The offence of assault occasioning actual bodily harm carries a heavier maximum
penalty
Kampangila v. The People (1969)
• But since it is a misdemeanour implies that a fine could be imposed
• Therefore it is regarded as a less offence to wounding
• On that basis the conviction of the appellant for unlawful wounding
was set aside & substituted with the conviction of assault occasioning
actual bodily harm contrary to the then section 220 PC
• Sentence imposed was on that basis reduced to 8 months
• Medical evidence to be adduced where necessary
GRIEVOUS HARM
Sec. 229 of the PC

Definition in Sec. 4 of the PC

Actus Reus? Mens Rea?

See – Television Chibuye v the people (1978) Z.R 43 (H.C)

jack chanda and kennedy chanda v the people (SCZ Judgment
29 of 2002)
 Grievous Harm
• The law set out S.229 Any person who unlawfully does grievous harm to
another is guilty of a felony & is liable to imprisonment for seven years
• Grievous harm is defined under S4 PC

• Means any harm which endangers life or which amounts to maim or

which serious or permanently injuries health or which is likely so to injure
health, or which extends to permanent disfigurement, or any permanent
or serious injury to any external or internal organ, member or sense;

• Penalty imposed is higher than that imposed under s.248

 Exceptions of Grievous Harm
• Term in under s.229 pardons a person who causes grievous harm on the
basis of being a parent or guardian
• Grievous harm caused by a person with the capacity to consent having
consent
• Person acting in self-defence provided the requirements of SD are met
• S 229mentions ‘grievous harm’ as opposed to ‘grievous bodily harm’
• Reasoning ‘grievous harm’ board term includes psychological harm
hence focus is not restricted to harm caused to body.
 Actus reus & mens rea of Grievous Harm-
S229
• Actus reus - Doing of grievous harm- serious harm (inflicting)
• Grievous harm- defined under s. 4 PC.
• mens rea – prosecution must prove either intention to do grievous
harm or recklessness
Grievous Harm: TV Chibuye v. The people
(1978) ZR 43 (HC)
• Appellant was convicted of doing grievous harm
• Was sentenced to two & a half years imprisonment with hard labour
• Complainant suffered harm to the extent that the appellant butted her with his
head in the face
• Causing her to lose two teeth
• Crt had to consider whether the lose of two teeth constituted ‘permanent
disfigurement’ such as cosmetically the teeth could be replaced.
• On that basis was held not to constitute a permanent or serious injury to any
external or internal organ membrane or sense as specified in S4 of PC.
• Crt reached the conclusion based on the fact it was unlikely that the legislature
ever intended a strained interpretation to the the term ‘grievous harm’
UNLAWFUL WOUNDING OR
POISONING
Sec. 232 – PC

Look at Sec. 4 of the PC

Need for a piercing of both the outer and inner skin -Juma
Zakalia v the people (1978) Z.R. 149 (S.C.)

There must be wounding which occurred in an unlawful manner

- N’gambi v. The people (1975) ZR 97
UNIT 7 - SEXUAL OFFENCES
“Offences against morality”
 RAPE
S.132 PC - Rape is unlawful carnal knowledge of a woman or girl
without her consent or with ‘consent’ if consent is obtained by:
Force,
threats or intimidation,
By fear of bodily harm,
False representation as to the nature of the act
personating a woman’s husband.
 RAPE CONT’D
 Actus reus for rape?

 1. there should be penetration

 2. without the consent of the woman or girl

 RAPE CONT’D
1. PENETRATION
R v. Yohani Mporokoso (1939) 2 NRLR 152 – held that the victim
has to prove penetration or partial penetration

Kaitamaki v. R (1985) AC 147 – where the woman revokes consent

but D still continues with the intercourse, it is rape.

Tembo v. The people (1966) ZR 126 (HC) – there should be

medical evidence to support the claim (corroborated evidence).
 Yohani Mporokoso (1939)2 NRLR 152
• The complainant claimed that on one particular night, she woke up and
found the appellant on top of her. The appellant was convicted of rape
but he appealed. According to the law, you cannot have sex with a person
who is asleep or who is so intoxicated. ‘If a man has or attempts to have a
connection with a woman while she is asleep, it is not defence that she
did not resist as she is incapable of resisting. The man can therefore be
found guilty of rape or attempted rape. Held; however, I am not satisfied
that the proof here of rape is sufficient. To prove a rape it is necessary to
prove penetration or partial penetration. The only evidence here is that of
the complainant where she says ‘I woke up and found Yohani on top of
me…he had actually a connection with me. He was therefore convicted of
attempted rape.
 What were the facts in Tembo v. The people (1966) ZR 126 (HC)
• The facts were that Joyce Tembo with the baby on her back went to look for firewood. She
met the appellant who greeted her, which she answered to and continued. According to her,
he then came from behind and grabbed her pushing her to the ground. She fell on her back
and he had a connection with her. She shouted for her and her friend came in answer to her
shouts. One of her friends, who came testified that when arrived, Joyce complained to her
that someone had had a connection with her. Joyce was pointing to the appellant who was
walking away from the scene. They then shouted for him to stop, which he did and he was
taken to an office where he was locked up. She noticed that Joyce had dust on her side and
the baby also had dust on it. The complainant was medically examined but there was nothing
abnormal about her. Corroboration is looked for, and the jury should be warned of acting
without it, in all cases of sexual offences, irrespective of the age or sex of the complainant or
other party involved. In this case, there was corroboration as to the identity of the appellant
in the friend saw him walking away; as to the assault, in that there was dust on Joyce’s side,
and as to the lack of consent that she had shouted for help. There was, however, no
corroboration of the sexual element of the offence; and at this stage of the trial, the
magistrate was apparently not sufficiently satisfied with Joyce’s evidence to convict on it
without corroboration. He substituted the charge of rape for assault with intent to commit a
felony, s 222 of the PC.
 RAPE CONT’D
2. LACK OF CONSENT
Emmanuel Phiri v. The People (1982) ZR 77 (SC) –no consent – rape
– corroboration if not then special and compelling reasons

R v. Lineker (1995) 3 ALL ER 70 (CA) – Sexual intercourse

without consent is rape
 RAPE CONT’D
Butembo v. The people (1976) ZR 193 – gave a lift to a young lady
and raped her. Said he gave her money (consent).
Mweemba & Another v. The people (1973) ZR 127 – court warned
of the dangers of convicting on uncorroborated evidence of the
victim- emphasis on corroborated evidence

ACKSON ZIMBA v THE PEOPLE (1980) Z.R. 259 (S.C.)

The case of Olugboja (1982) QB 320 (CA),
• In the case of Olugboja (1982) QB 320 (CA), it was held that
submission is not consent. According to this case, it was stated that
whenever there is consent, there is always submission but there can
be submission without consent. What were the facts of Olugboja? L
raped V, and then took her companion K into an adjoining room in
order to rape her. L’s companion O told V that he was going to have
intercourse with her and asked her to remove her trousers, which she
did because she was frightened. She did not struggle or resist when O
had intercourse with her. O was convicted of rape and appealed. 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. Appeal dismissed.
What were the facts in Butembo (1976) ZR 193?
• Butembo gave a lift to a woman and while on their way he pulled off
the road into a secluded place and had intercourse with her using
force which resulted in bruising of her face and other minor injuries.
After that, they went back into the car.
• On the basis of these findings there was overwhelming corroboration
of the evidence of the complainant, and we have no hesitation in
holding that in spite of the failure of the magistrate to warn himself as
to the desirability of corroboration, he did in fact consider all the
matters which were corroboration and found the evidence in this
regard to be true. Had he warned himself as to the desirability of
corroboration we are satisfied that he must inevitably have convicted
in any event and that the test laid down has been met. Appeal
therefore dismissed.
 RAPE CONT’D
R v. Mwila (1935) NRLR 77 - consent obtained through
intimidation is not consent – conviction quashed, no
corroboration for rape.

R v Mporokoso (1939) High Crt for Northern Rhodesia –

misrepresentation or impersonation of the woman’s husband
 RAPE CONT’D

Look at the following cases on misrepresentation:-

R v. Elbekkay (1994) LT, 12 September 1994

R v. Flattey (1877) 2 QB 410

R v. Williams (1923) 1 KB 340

The People v Mugala [2012] ZMHC 9

 RAPE CONT’D
Mens rea:

Intention –

Recklessness - DPP v. Morgan (1976) AC 182 HL

 RAPE CONT’D

The offence of attempted rape is considered to be as

grave as the offence of Rape – life imprisonment (PC
133);(PC 134)
Robert Kalimukwa V The People (1971) Z.R. 85
(H.C.) – police officers in the office failed to pull down
her underwear but would have had unlawful
intercourse with her if he had managed to. D was
Convicted of attempted rape.
 INDECENT ASSAULT
Look at S137 PC

Claim that a girl/boy under the age of 12 consented to the act of

indecency cannot be a valid defence (S137(2)
 INDECENT ASSAULT
Actus Rea –
a. Assault or battery or both
b. Circumstances of indecency

Mwanza v The people (1976) ZR 154

Miloslav v The People [2014] ZMSC 142 – elements of indecent assault – indecent
assault, by complainant , no consent –from 15 to 20 years. It is a defence to D who
reasonably believed that the Victim was consenting to the act.
Kabwita v The People [2014] ZMSC 32 – initially charged with child defilement but
turned into indecent assault – no penetration

The prosecution must prove the absence of consent

Mens rea: Intention; Recklessness

Look at the following on indecent assault:
Kabwita v The People [2014] ZMSC 32
Habeenzu v The People [2012] ZMSC 65 - attempted rape
reduced to indecent assault – distinction between the two
 DEFILEMENT
S138 PC

Felony- : fifteen years - life imprisonment

Actus reus: -
(i) Sexual intercourse
(ii) With child below the age of 16

mens rea – intention, recklessness,

Accused can raise defence that the Child appeared to be16 years
& above - reasonable belief – (mitigating factor) – Clifford Dimba v
the people (2014) ZMHC 2
 DEFILEMENT CONT’D

The People v. Stephen Hara (2004) HC

Accused aged 39 was charged with defilement of a child aged 11
contrary to s.138(1) PC Cap 87
Accused was sentenced to 25 years imprisonment with hard labour
the harsh sentence was imposed to reflect the barbaric nature of the
act

Nsofu v the People (1973) ZR 287

Sole Sikaonga v the people (S.C.Z JUDGMENT no. 20 OF 2009)
– 25 years
 Attempted Defilement
• PC s.138(2) attempted Defilement - 14
• Therefore the following needs to be established to
secure a conviction;
• will be established if ;

(i) Attempt to have sexual intercourse

(ii) With a child below 16
 DEFILEMENT CONT’D

Defilement of Persons with Mental Illness (s139) PC

Such a person is liable to imprisonment of 14 years imprisonment.

Knowledge to the accused that the victim is an Idiot or imbecile

There is need to prove that D did not know that the victim had a
mental disability
 INCEST
PC S159 – incest by males
• Carnal knowledge of grandmother, mother, sister or daughter, grand
daughter, aunt or niece
• Felony – not less than twenty years/life imprisonment Consent
immaterial
• Attempt 10 years not exceeding 20 years
• (2) Any female person who has carnal knowledge of a male person
who is to that person’s knowledge her grand-father, father, brother,
son, grand-son, uncle or nephew commits a felony and is liable,
upon conviction, for a term of not less than twenty years and may
be liable to imprisonment for life.
 INCEST CONT’D
S161 – Consent to incest
162 – half brother and half sister
Mens rea – intention, recklessness (Knowledge as part of the fault
element)
UNIT 8 - OFFENCES AGAINST
PROPERTY LECTURE
 Theft
• Basic requirement of the offence is that there should be a
thing, the thing whatever its nature or value must be capable
of being stolen(see S264 PC Cap 87 list things which are
capable of being stolen).
Definition of theft
• S.265(i) - A person who fraudulently & without claim of right takes
anything capable of being stolen or fraudulently converts to the use of any
person other than the general or special owner thereof anything capable of
being stolen, is said to steal that thing’

• S265(2) A person who takes anything…..capable of being stolen is deemed

to do so fraudulently if it does it with….
(a) An intent to permanently deprive the general or special owner of thing of
it
• S.265(5) a person is not be deemed to take a thing unless if he moves it or
causes it to move
 Theft
• Fraudulently mean dishonest, the taking must be intentional, without
mistake & with knowledge that the thing being taken belongs to another
person
• Summary of Provisions S.265 identifies five elements of theft
(i) There must be something capable of being stolen
(ii) The thing must belong to another person
(iii) The A must take & move the thing
(iv) The A must intend to permanently deprive another person of the
thing
(v) A must act fraudulently (dishonestly)
 Theft
• Theft is a felony
• Person convicted is liable to an imprisonment term which range between five -
fifteen years – (S 272, 275, 275A, 276, 8)
• Sentence will depend on nature of thing stolen
• Actus reus of Theft – Taking & moving a thing that belongs to another
• 5 elements which defines theft have been identified;
1. Taking & moving
2. Must be a thing capable of being stolen
3. Belonging to another
4. Fraudulent intent
5. Intention to permanently deprivation
Actus reus of Theft
- Taking & moving
• Ordinary meaning applies to the act of taking & moving
• Implied that there is an absence of consent or knowledge of the owner of the thing
taken & moved
• Must be a thing capable of being stolen
• S.264 is seeks to define what property is (thing capable if being stolen)
• So basically property could include animals,
• Money
• Property
• Intangible property ( non physical property) – cheque, copyright, trademark &
shares
Actus reus of Theft cont.
• Belonging to another
• Phrase not contained under s264/5
• However is said to mean the same thing as ‘which is property of any
person’
• Property capable being stolen must belong to someone other that the
person being accused of having stolen
• The thief does not necessary have to steal the thing from the owner it
could be from the person in charge or in possession of the thing
Mens rea of Theft
• Elements of Mens rea of Theft
1. Fraudulent intent
2. Intention to permanently deprivation
• MR refers to state of mind at the time of the commission
• Absence of definition of Fraudulent in PC
• Natural meaning is applies dishonest
• s.265(2) – when the A intents to;
- Permanently deprive
- Use thing as pledge or security
- Part with it
- Deal with it in a manner that it is not returned to its original condition
- In case of money intent to use it
Intention to permanently deprivation
• Must be an Intention to permanently deprive
• S265(2) (a) ‘intent permanently deprive’ not defined
• Need to be an intention to permanently deprive
• No need for proof of actual permanent deprivation
• if this were there would be no charge of theft in a situation where
the goods are recovered & returned to the owner
• Still there is theft
• Intent to deprive – hidden intention which accompanies the AR
Mwachilama v. The People (1972) ZR 287
Crt of Appeal
• Appellant (A) was convicted in High Crt of stock theft
• Stole one Ox & five cows
• A defence the six cattle had strayed onto his land & eaten his maize
• A knew that the cattle were not his but he did not know the owner
• A argued he had the right to keep the cows or sell them because they ate his
maize
• Judge argued they may be an honest belief that the taker believed he had a
right to the property or he may have an honest belief that he had a claim of
right against another & honestly believed he had a right to enforce his claim
against the other person’s property.
• No need for claim to be valid, or reasonable belief only needs to be honest.
Mwachilama v. The People cont
• Therefore the defence of a bona fide claim of right made in good faith
extents to when the accused has a bona fide belief that he has the
right to keep or deal with somebody else’s property.
• Note: 8. A person is not criminally responsible in respect of an offence
relating to property, if the act done or omitted to be done by him with
respect to the property was done in the exercise of an honest claim of
right and without intention to defraud. Bona fide claim of right
Muzyamba v. The People (1975) ZR 83 SC of
Zambia
• Issue of dishonesty & claim of rights was considered.
• A bull had strayed & was found amongst the appellant’s herd
• In his defence ist claimed it was his bull then later justified his claim by arguing
that the bull had destroyed some of his maize & he was keeping the Bull until he
got compensation from the owner
• He appealed against conviction for stock-theft on the grounds that he had a bona
fide claim of right on the bull until he got compensation for the maize the bull
destroyed.
• Appeal was dismissed on the basis that the appellant had not honestly believed
that he had a to deal with the bull to the crt ‘s satisfaction because Appellant had
insisted that the bull was his & went to the extent of producing one of his cows
claiming that she was the mother of the bull.
• Read the following cases on theft
• Chombe V The P (1972) ZR. 36 – stock theft
• Winford Kaleo V The People (1978) Z.R. 250 (S.C.) – motor vehicle
theft
• Ezara Moyo V The People (1981) Z.R. 173 (S.C.)
11.3 Robbery & Extortion
• Robbery threat intensified by assault
• Robbery combination of theft with violence
• Violence could be threat or use of force
• Assault – ‘technical’ assault & physical assault (battery)
• To establish Robbery:
• Theft must be established.
• Violence/force
(i) Robbery
(ii) Aggravated robbery
The law on Robbery & Extortion - S. 292
• S292 several elements of robbery are mentioned i.e.
• There must be theft
• Theft must be accompanied with use or threat to use actual violence
• The use or threat to use actual violence must occur at or immediately after
the time of stealing
• Use of or actual threat to use force must be directed to any person or
property
• Use of violence or threat to commit theft
• To obtain or retain property stolen or
• To prevent or overcome resistance of it being stolen or retained
The law on Robbery & Extortion
• Accused (A) convicted under s.292 is liable to fourteen years
imprisonment
• What must be proved in order to secure a conviction for robbery?
• What would be the implication in the absence of AR for robbery?
• MR for robbery includes mental element required in the offence of
theft
• Violence must be applied intentionally or recklessly
• Knowledge – A must prove that he was aware that he had used or
threatened to use violence to any person or any property.
 The Law on Aggravated Robbery
• S294 PC – entitled Aggravated Robbery criminalises robbery which is
aggravated by the use of ‘any offensive weapon or instrument’
• A conviction of the A can be secured under S294 if-
• Elements of theft must be established
• Element of robbery (s292) must be proved beyond reasonable doubt
• A must be armed with any offensive weapon or instrument
• A convicted under s 294 is liable to life imprisonment
• However crt must sentence the A to not less than 15 years
imprisonment (s.294).
The Law on Aggravated Robbery
• Where offensive weapons or instrument used is a firearm or grievous harm –
penalty of aggravated robbery is a mandatory death sentence (s.294(2).
• But there are defences available to A. A would have to prove by evidence to
the satisfaction of the crt that
(i) A was not armed with a firearm
(ii) A was not aware that any of the other persons involved in committing the
offence was armed
(iii) That A disassociated himself/herself from the offence immediately on
becoming aware
(iv) A neither anticipated nor could reasonable have anticipated that grievous
harm might be inflicted in the course of the offence
John Timothy & Feston Mwamba v. The People (1977) ZR
394 – stole property and used violence against the
occupants
• Supreme Crt held

• to establish an offence under s294(2) the prosecution must

prove that the weapon used was a firearm within the
meaning of the firearms’ Act
Contrast with - JORDAN NKOLOMA v THE PEOPLE (1978) Z.R.
278 (S.C.- toy gun- minimum sentence given
Mugala v. The People (1975) ZR 282 (SC)
• In order for aggravated robbery to be established, it is necessary for the prosecution
to show that the violence was used in order to obtain or retain the thing stolen
( proper interpretation of s. 294(1) – Mr Kapumpa)
• In instance case the action of the A were said not to constitute an aggravated robbery.
• A was convicted of aggravated robbery on basis that he attacked a night watchman
with an iron bar, broke some windows & stole six curtains & two mattresses
• A argued at trial that he had been an employee of the owner of the farm who despite
several requests to pay him half a month’s wages he failed
• Watchman had given evidence in regards to the assault claiming that he had hit him
because his bwana had not paid him as per appellant.
• Conviction was quashed & sentence set aside- was substituted with a conviction of
assault occasioning actual bodily harm contrary to s. 248.
Haonga & Others v. The People (1976) ZR
200
• A were convicted of murder of a farmer who was shot & killed during a robbery
carried out by five men
• In case Common purpose had to be established in order to secure a conviction of
murder for all five men however there was no evidence one of the robbers was
known by others to be armed
• There was no evidence that other members of the gang, whoever they were knew
that a firearm was being carried by one of them
• In case there was absence of sufficient evidence to establish a common design or
purpose & there was no satisfactory evidence as to which of the appellants fired
the fatal shots therefore the conviction for murder could not stand
• Appeal of three appellants was allowed conviction for murder & sentences of
death set aside substituted with convictions for aggravated robbery.
Francis Chongo, Peter Ngosa Makola v. The
People SCZ 1998
• Appellants were charged & convicted with armed robbery & sentenced to life
imprisonment
• They broke into the victim’s house at night according to the victim they were armed &
had threatened to shoot her
• Supreme crt took a role in correcting the errors of law that had been made by lower
crt in charging as well as sentencing.
• A were charged with armed robbery but there was no evidence that the gun was used
• Crt clarified that in Zambia the law on extenuating circumstances was introduced in
extreme offences of murder. It was only intended for offences of murder.
• To invoke the principles of extenuating circumstances in sentencing of the accused in
an armed robbery offence rather than murder is not only wrong in principle but
wrong in law
Look at the following cases:
Haonga & Others v. The People (1976) ZR 200
Kanyanga v The People [2012] ZMSC 11 – aggravated robbery – sentenced
to death
Chongo and Another v People [1999] ZMSC 16 – robbery – extenuating
circumstances only applicable in murder cases
Mugala v. The People (1975) ZR 282 (SC)
 Burglary & House breaking
• Offence which relates to criminal violation of the sacredness of the
home or other buildings such as factories, shops or places of worship.
• PC differentiates between house breaking & burglary
• House breaking – Committed during the day
• Burglary – committed during the night
The Law on Burglary & House breaking
• S300 stipulates circumstances which can amount to the offence of
house breaking & burglary
• Sections makes it clear that entry does not necessary mean that the A
should enter the building physically
• S300(2) – person is deemed to have entered the building once any part
of his body or instrument used by A is within the building
• Therefore Burglary & House breaking can be committed by
(i) by breaking or entering the building or part of the building Or
(ii) As a trespasser with intent to commit a felony i.e. rape, theft etc
(s.306, 301).
Elements of offences of Burglary & House breaking
• Actus Reus
• Entry (s300, 301,304).
• knowingly or recklessly
• Building or part of the building
• Mens rea
• With intent to commit a felony at the time of entry/ or whilst in the
building
Penalty of Burglary & House breaking
• Housebreaking (committed during the day) penalty is seven years
imprisonment (s301)
• Burglary ( committed during the night) D if convicted is liable to ten
years imprisonment
• Offences that fall under s.303 – seven years imprisonment (building
& committing a felony)
• S.304 – 5 years (building with intent to commit a felony) treated in
same way as offence of theft.
• Look at the following cases:
• John Mumba V The People (1971) Z.R. 125 (H.C.)
• Fatyela V The People (1966) Z.R. 135 (H.C.)
The Law on Receiving/Handling stolen property/ unlawfully obtained

• S.318 – receiving stolen property

• Receives or retains
• Knowledge – must know or have reasonable cause to believe that the
goods were stolen goods
• S318 (2) deals with receiving property unlawfully obtained by means of
false pretence or fraudulent means
• S319 deals with situation where the A is found in possession of
property suspected to have been stolen
• Crt grants A an opportunity to give an explanation as to how the
property came to be in their possession.
AR of Receiving/Handling stolen property/
unlawfully obtained
• AR identified on the basis of s.318
(i) Receiving & retaining goods
• receiving implies that the A must have acquired control or possession
over the stolen goods from another
• Possession needs to be established hence ;
• it must be shown that that the goods are either in the A’s immediate
custody
• or located at a place which the A has control over
• Must be intention by the A to possess the goods
AR of Receiving/Handling stolen property/
unlawfully obtained
• Retaining – keep possession of or continuing to have goods

(ii) The goods must be stolen

• Stolen goods would be any property that comes into the control or
possession of the A as a consequence of robbery or burglary is
deemed to be stolen property
• Meaning of stolen extends to include situation were goods are
obtained by false pretence (s.300)
MR of offence of Receiving/Handling
stolen property/ unlawfully obtained

• Knowing or having reasonable cause to believe the goods were stolen

or
- s318 requires that there is this knowledge at the time or receiving or
retaining
• Fraudulently or dishonestly obtained
Punishment
• Penalty ranges for receiving and retaining stolen goods ranges from
three – seven years
• Circumstances in which the goods/property was stolen are also taken
into account.
Receiving Stolen Property
• Chizema v. The people (1972) ZR 7 HC
• Appellant was convicted of the offence of being in possession of property
reasonable suspected to have been stolen contrary to ten s.287(a)PC.
• A pleaded guilty to the charge arguing he received the goods knowing they
were stolen. (286)
• Trial magistrate argued that on proper construction this was a plea to
receiving stolen property & should not be accepted to the offence of being in
possession of property reasonable suspected of having been stolen.
• No provision in our law which states that if a man is charged with the offence
of being in possession of property contrary to S319 should be convicted of the
offence of receiving stolen property under s. S.318 – receiving stolen property
Stephen Manda v. The People (1980) ZR 116
HC
• A was a customs & excise officer employed in a distillery.
• He was charged with theft of a bottle of whisky
• However there was no evidence of the corpus delicti thus there was no evidence
of any deficiency in the stock of the distillery or any evidence that the particular
bottle & its contents had been stolen from the distillery.
• Appeal was allowed A acquitted on the basis that the offence of being in
possession of stolen goods requires the person charged with such an offence to
give a satisfactory account for the possession. In instance case it was the bar
manager & not the appellant was found in possession
• Crt held one cannot go tracing goods back through half a dozen hands for the
purpose of showing each person guilty of an offence unless if he can account
satisfactory for the possession.
Retaining stolen Property

• Attorney- General’s Reference (No. 1 of 1974) [1994] QB 744 CA –

• It was a reference to the Crt by an Attorney on the point of law
• Facts;
• Police officer found an unlocked car, unattended car containing packages of new
clothing which he suspected & were proved subsequently to be stolen
• Officer removed the rotor from the vehicle in order to immobilise it & kept observation
• After 10 mins accused appeared was questioned & eventually arrested upon failure of
giving a reasonable explanation.
• A was charged 1. For selling the woollen goods & new clothing found at back of the car
• 2. Receiving goods knowing they were stolen
• Trial J ruled there was no evidence to support the first charge
Attorney- General’s Reference (No. 1 of
1974) [1994] -II
• Issue there was a submission by counsel for the respondent who argued that
there was no case on the basis of S24(3) Theft Act, 1968- which provides that
• No goods shall be regarded as having continued to be stolen goods after they
have been restored to the person from whom they were stolen or other
unlawful possession or custody ……
• Therefore argument was that goods had already been restored to the lawful
possession or custody namely the possession of the police officer before the
respondent appeared on the scene & sought to drive the car away.
• If this was the case, it would imply that they would be no case to answer as
the goods would no longer be stolen goods as would be restored to lawful
possession.
Attorney- General’s Reference (No. 1 of
1974) [1994] -III
• Upon hearing the submission TrialJ accepted the submission. Hence AG raised
the issue by way of referring the on the point of law.
• Crt also had to consider whether the actions of the officer amounted to taking
possession of the goods in the car.
• Crt held that the term ‘restore’ meant restoration of goods to the true owner.
The verb could not be extended to engaged if one was referring to the police
stumbling upon stolen goods & taking them into lawful custody or possession.
• Judgement would depend on the intentions of the officer
• If the officer upon seeing the goods at the back of the car had made up his
mind that he would take them into custody then he would reduce them into
his possession or control.
Attorney- General’s Reference (No. 1 of
1974) [1994] -IV
• Therefore he would be taking charge of them so that they could not be removed
• On that basis it would have been proper to conclude that the officer had taken
possession of the goods.
• On the other hand, the truth of the matter is that he was not sure at that stage
whether to take the goods or not.
• Instead he stood to wait for the driver so that he could ask certain questions as to
the nature of the goods & why there were there.
• There was no reason to suggest that he had taken the goods into his control or
possession
• Conclusion at this stage, it was not the intention of the officer to take possession of
the goods but to ensure that the driver of the car could not get away without
answering questions.
Stolen Property- Doctrine of Recent
Possession
• The People v. Chabala (1969) ZR 66 (HC)
• Accused (A) was convicted of theft of a blouse & sentenced to two years
imprisonment with hard labour
• A was convicted in the absence of direct evidence indicating that A was seen taking
the blouse from Jeune Boutique store
• The only evidence against the A was that he was found in possession of the blouse.
• Basis of prosecution was on the doctrine of recent possession
• Accordingly where an A is found in possession of property proved to have been
recently stolen the inference that the accused is the thief may be drawn.
• In instance case the conviction & sentence was quashed due to the absence of
evidence as to when the blouse was stolen from the store.
Lazarous Kantukomwe v. The People (1981)
ZR 125 SC
• Appellant was found in possession of a recent stolen vehicle as a
result was convicted of receiving stolen property and sentenced to
four years imprisonment with hard labour.
Read the following cases:
George Nswana v the people (1989) ZR 174 (SC) – distinction
between receiving and retaining stolen property
Chizema v. The people (1972) ZR 7 HC receiving stolen property
Stephen Manda v. The People (1980) ZR 116 HC
Attorney- General’s Reference (No. 1 of 1974) [1994] QB 744 CA
Elias Kunda V The People (1980) Z.R. 100 (S.C.)
Stolen Property- Doctrine of Recent Possession

Elias Kunda V The People (1980) Z.R. 100 (S.C.) – court can infer A
is guilty if he fails to give a reasonable explanation as to how he came
to possess the stolen property
The People v. Chabala (1969) ZR 66 (HC)
Lazarous Kantukomwe v. The People (1981) ZR 125 SC
UNIT 9 - Criminal Damage
Arson s.328 PC
S328. Any person who wilfully and unlawfully sets fire to
-building or structure completed or not; or
-vessel, motor vehicle, whether completed or not; or
-stack of cultivated vegetable produce, mineral or vegetable fuel
-mine, or the workings, fittings, or appliances of a mine;
is guilty of a felony and is liable to imprisonment for life. - R v Turner (Criminal
Review Case, 1951)

R v Damaseki (1961) R & N 673

Libuku v the people (1973) ZR 345 (SC)
Nondo v DPP (1968) ZR 83 CA
Attempts to Commit Arson
329. Any person who unlawfully
(a) attempts to set fire to any such thing as mentioned under s.328

(b) wilfully sets fire to anything which is so positioned that would

lead to anything mentioned under s.328 to catch fire from it;

is guilty of a felony and is liable to imprisonment for fourteen years.

 Destroying or damaging property belonging to another

S335

Any person who wilfully and unlawfully destroys or damages any

property is guilty of a misdemeanour, unless otherwise stated

 Person would be liable, if no other punishment is provided, to

imprisonment for two years.
Endangering Life
Offender commits a felony & liable to life
imprisonment if in destroying or damaging a dwelling
house & vessel there is a person inside – reasoning –
One’s life is endangered(s.335(2).

Reasoning as why the punishment is harsh is due to

the fact that one’s life would have been placed in
danger - R v Wenton [2010] EWCA Crim 2361
Threat to Destroy or Damage Property
s336. Any person who, unlawfully and with intent to destroy or
damage any property, puts any explosive substance in any place
whatever,
is guilty of a felony and is liable to imprisonment for fourteen years.
 UNIT 10 - OFFENCES
INVOLVING DECEPTION
The Law on False Pretences
• False Pretences is defined S308 PC
• S308 – representation made by words or conduct, of a matter of fact
or law, either past or present, including a representation as to the
present intentions of the person making the representation or of any
other person, which representation is false in fact, & which the person
making it knows to be false or does not believe to be true, is a false
pretence.
11.2 False Pretences
• Covers offences of obtaining something by false pretences
• A must by false pretence or representation obtain as a matter of law
or fact, anything capable of being stolen (s309)
• Or any pecuniary advantage (s309a)
• Obtaining execution of a security (s.310)
• Obtaining anything capable of being stolen by trick or device (s.311)
• Obtaining credit or delivery of any charge on property (s.312)
Elements of False pretence
• the prosecution can only succeed to secure a conviction for obtaining
something by false pretences after establishing that;
• Existence of representation made either by words, conduct or in
writing
• Conduct – a person can imply something by their conduct i.e. If a
person checks into a hotel, there is a presumption that he/she intends
to pay for the room (Harris (1976) 62 Cr. App. R. 28.
• If someone issues a cheque (representation) presumption is that
cheque is presented for payment will be honoured (Gilmartain (1983)
1 ALL EA 829, CA
• Representation must be a matter of fact or of law
• Fact – clear
• Person making the representation must know it to be false or did not
believe it to be true
• Must be intend to defraud
• Change of ownership must be induced by false pretence.
Obtaining goods by false pretences
• s309 prosecution needs to prove false pretence & intent to defraud
• Actus reus
• False Pretences
- Accused must obtain
- A thing capable of being stolen
- That thing must belong to another person &
- Through false presence & intent to defraud
Mens rea s.309
• Mens rea of obtaining property by false pretence & intent to defraud
is that;
- A must have planned or recklessly acted in a manner which
constitutes false pretence with intent to defraud
- Actual obtaining of property must be fraudulence or dishonesty
- Obtaining must be with intention to permanently deprive the victim
of their property.
Punishment - False Pretences
• A who is convicted would be liable to maximum of three years
imprisonment
• false pretences offences are considered to be less serious
Example: False Pretences
• Wilson Makasa Kapasa v. The People (1980) ZR 114
• A was convicted on two counts of obtaining money by false pretences
• He had obtained K10 by falsely pretending that he could show someone the person
who wanted to kill him when in fact he wasn't able to do so.
• A obtained the money with the promise that the money would be returned to them
after his had performed his magic
• This implied that the owners of the money did not intend to part with the
ownership of money. Therefore the act of taking the money by the A was theft
• The charge of false pretence was set aside and substituted for theft under S265 PC
• The sentence of 30 months imprisonment with hard labour stood
• Appeal against sentence dismissed
Therefore
• Theft – the owner of the thing stolen has no intention to part with his
property
• False pretences –The owner does intend to part with his property but
it is obtained from him by fraud ( as identified in R v. Chungu (1954) 5
NRLR 681 High Crt of Northern Rhodesia).
Summary Elements of False Pretences
• A must make a false representation
• As a result of the representation, A must obtain a thing
(property, credit).
• A’s false pretence (or deception) must cause the obtaining of
the thing (credit) &
• A must act fraudulently (dishonest).
 Obtaining pecuniary advantage by false pretence
(s.309 A)
• pecuniary advantage refers to monetary advantage or benefit
• Specific situations which could lead to a person obtaining a pecuniary
advantage are highlighted e.g.;
• No need to prove that the A did actually obtain a pecuniary advantage
• No need for the victim to have suffered a financial loss
 Obtaining pecuniary advantage by false pretence Actus Reus – under s.309A

• False pretence
• Accused person obtains for himself or another person
• Pecuniary advantage
• According to s. 309 Pecuniary advantage would include situations where
the
(i) Accused borrows by way of overdraft (s.309A (b)
(ii) Being allowed to take out insurance policy on the basis of false
pretence
(iii) Accused is given an opportunity to earn remuneration or to win
money by betting
 Obtaining pecuniary advantage by false pretence Mens rea -
s.309A

• Deliberation or recklessness (false pretence)

• Dishonesty relation to obtaining
• Examples of offences which are prohibited under s.310 -317 PC
• Intent to deceive
• Cheating
• Obtaining credit by false pretence
• Obtaining registration by false pretence
• False declaration for passport etc
Punishment s. 309A
• S309A – misdemeanour
• Imprisonment maximum five years
Outline - Offences Involving Deception
• Forgery
• Making False Documents
• Obtaining Property/ Services by Deception
• Obtaining a Pecuniary Advantage
Forgery

• S.342 Definition
• Forgery is the making of a false document with intent to defraud or
to deceive
• Document – Piece of paper providing an official record of something
• Exception; Trade mark or any other sign used for commerce purposes
though they may be written or printed (S343)
Forgery
• Examples of documents which can be forged
• currency notes
• *Will
• Document of title to land ( Title deed)
• cheque
• judicial record
• Policy of insurance
• stamp (date stamp)
Making False Documents

• How can the offence of Forgery be committed?

• By making a false document
• S344 PC - Any person makes a false document who –
- If a person claims that document is a fact when it isn’t
- Amending the document without authority
- Including something into a document without authority which if had
be included would change the effect of the document
- Signing of a false document
- Signing in a document name of another person without due
authority.
- Signing the document in the name of a fictitious person (made- up
person)
- Name of a different person from the person signing it
- Signing a document by way of Impersonation (imitation) of another
person
Intent To Defraud(S345)
• An intent to defraud is presumed to exist if it, at the time when the
false document was made, there was in existence a specific person
ascertained or unascertained capable of being
• Presumption is not rebutted by proof that the offender took or
intended to take measures to prevent such person from being
defrauded in fact, nor by the fact that he had or thought he had a
right to the thing to be obtained by the false document.
Intent To Deceive(344A)

• An intent to deceive is established where one person encourages

another person;
• ‘(a) to believe that a thing is true which is false, and which the person
practising the deceit knows or believes to be false; or
• (b) to believe a thing to be false which is true, and which the person
practising the deceit knows or believes to be true;
• and in consequence of having been so induced does or omits to do an
act whether or not any injury or loss is thereby suffered by any
person.
Punishment for Forgery
• Different types of punishment is stipulated depending on nature of
document forged.
• General punishment for forgery (S347)
• Forgery is an offence which is classified as felony
• Person found guilty would be liable, to imprisonment for three years.
• Any person is liable to imprisonment for life if document forged is any
stated under (s348).
• Judicial or official document – seven years imprisonment (s349)
• A person who forges a stamp would be to liable to imprisonment for
seven years (s350)
Obtaining Property/ Services by Deception

• S.344 PC - Any person makes a false document who – If a person

claims that document is a fact when it is not
• Example would be forging a document which enables one to title to
land
• Hence forgery would be intended for the purposes of obtaining
property i.e. land
• In such a case, general punishment for forgery would apply as the
penalty (see s348)
• Intent To Deceive(344A)
• An intent to deceive is established where one person encourages
another person;

• ‘(a) to believe that a thing is true which is false, person practising the
deceit needs to know or at least believes it to be false; or
• (b) to believe a thing to be false which is true, and which the person
practising the deceit knows or believes to be true;
• and as a result does or omits to do an act whether or not any injury or
loss is thereby suffered by any person.
Examples of Cases under Forgery & other
related areas
• Chuba v. The People (SCZ, 1976)
• Appellant (A) presented a cheque to a bank cashier drawn on the
account of K.
• K gave evidence that he did not sign the cheque
• A handwriting expert testified that the signature on cheque was not
that of K & that there was strong evidence to indicate that the writing
on the cheque was that of the A.
• A was convicted of forgery & appealed
• Appeal was allowed on the following basis;
Chuba v. The People (SCZ, 1976)
• In instance case the handwriting expert (HWE) in his report &
evidence did draw attention to particular similarities in the writings of
the cheque & specimen writing of the appellant (A).
• However Crt noted that it is an acceptable statement of law that
evidence of a HWE is an opinion only & the matter is one which the
Crt has to make a finding.
Chuba v. The People (SCZ, 1976)
• It is for this reason that in addition to his opinion, the expert should have
placed before the Crt all materials used in arriving to his opinion so that the
Crt could weigh their relative significance
• Note; Prosecution evidence was that police officer took handwriting
specimens from 4 bank officials 1 of whom was the A, accordingly these
were handed to the HWE.
• However the HWE in his evidence said he only received specimen writings of
the A, the true account holder & disputed cheque
• As a result these were the only documents which HWE placed b4 the Crt.
• Hence Cr concluded that appeal allowed because the whole evidence
available was not placed b4 the Crt.
 Mukoto v The People (SCZ, 1974)

• A who pretending to be a Mr Phiri requested to withdraw K200 from

commercial bank in Kitwe claiming he had an account in Ndola under
the name Kabunda store
• Bank manager (BM) phoned Ndola & discovered there was no
account under the given name
• Despite the discovery BM issued the A with a blank cheque
• A filled in the cheque. He was convicted of forgery- false document &
attempting to obtain money by false pretences. A appealed on basis
cheque was not false document because it did not tell a lie about
itself but reduced certain falsehood writing.
Mukoto v The People (SCZ, 1974)
• Crt dismissed appeal on the following basis;
• Reference to S.344 was made – ‘Any person makes a false document who:
(a) Makes a document purporting to be what in fact it is not’
• Prosecution had to show beyond reasonable doubt that this was the case
which implied that offence had been committed. After having established
this, Crt considered (d) which says that a document is a false document if it
is signed:
• ‘In the name of any fictitious person alleged to exist, whether the fictitious
person is or is not alleged to be the same name as the person signing’
• In present case it was clear that the A’s name was not J. Phiri & there was no
Kabunda store.
Case law
• Tembo vs The People [2011] ZMHC 101 – plot case
• Mark Herbert Kaunda V The People (1982) Z.R. 26 (S.C.)
• John Crawford Mashilipa V The People (1988 - 1989) Z.R. 113 (H.C.) –
empty bags of maize case.
UNIT 11 - Offences Against the
State
Offences Against the State
• The main characteristic of offences against the state are as follows:
- They affect the general well- being of the people
- These offences have the capabilities of creating state political
instability, economic stagnation & general social disruption.
- Some offences are directed against the government (i.e. Treason)
- Rationale for incorporating these offences in the PC is that in relation
to treason apart from it been an offence it also causes social
disruption generally including affecting the law enforcement agencies
& life of the people.
The Law on Treason
• SS. 43, 44 & 45
• PC creates three categories of Treason
1. Treason
2. Misprision of treason &
3. Treason - felony
• Above offences can be committed by a person or any person
[ss.43.44,45])
Treason
• ‘A person’ who acts any of the manner as stipulated under SS 43 is guilty of
treason. i.e. A person who
- Prepares to overthrow by unlawful means the Government established by
law
- Prepares to obtain alteration of the law or Government policies by force
- Prepares to obtain by force setting up an independent state in any part of
Zambia (succession)
- Prepares to appropriates the executive power of the states
- Incites or assists any person to invade Zambia or submit to any part of
Zambia been attacked.
- During the time of war any person with intent gives assistance or acts in a
manner which is likely to give assistance to the enemy
Treason
• Exemption - foreigners cannot be punished for treason committed outside
Zambia (S43[3])
• However the presence of a foreigner in Zambia is sufficient ground for
charging & conviction for the commission of treason.
• Penalty is death s.43(1) note (death sentence is mandatory)
• In a charge of treason an ‘overt act’ must be proved to the satisfaction of the
court
• Definition of overt act S52 PC
• Act which effects a purpose
• Act done in persistence of the purpose – Act is said to be the manifestation of
the intention.
• Need to prove the overt act was illustrated in Shamwana decision).
 Edward Jack Shamwana v. The People (1985)
ZR 41
• Defendants were tried under s.43(1) PC for undertaking
preparations to overthrow by unlawful means the Government
of the Republic of Zambia as by law established.
• Supreme Court held that ‘in Zambia any person who is charged
with treason, whether or not he owes his allegiance to Zambia
or to another country, is amenable to the Zambian
jurisdiction…….. In order to prove it (treason) all overt acts must
be stated in the charge sheet and there must be corroboration
of evidence’
• Crt pointed out in the Shamwana case that;
Shamwana case
• 1. In any charge of treason (S.43) ‘overt acts’ must be proved to the satisfaction of the court.
• The actual overt act must be mentioned in the charge or else it may be a ground for challenge
& appeal as was the case in case Edward Jack Shamwana case
• Four overt acts were identified
1. ‘conspiracy to overthrow the Zambian Government by unlawful means’ – (this was
implicated on all the accused persons)
2. Was the plan for diversion of the Presidential aeroplane to a pre-arrange place he was to fall
in the arms of armed men & forced to renounce presidency
3. Was the finding of guns & rounds of bullets
4. (Concerned of the accused) was the assumption of command of an illegal army stationed at
chilanga farm
• In case Four defendants were Zambian nationals, but four others were Zairean nationals -
Unlike other jurisdiction in Zambian any person charged with treason, whether or not he
owes his allegiance to Zambia or to another country, is amenable to the Zambian jurisdiction.
• However a non Zambian is not punishable for treason committed outside the country s.48(3).
Misprision of Treason- ss 44
• Phase refers to persons who become accessory in the commission of the
offence.
• Committed by any person who becomes an accessory (aid or assists in the
commission of treason.
- ‘Any person’ becomes an accessory if knows that any person intends to
commit treason, yet fails to inform the relevant authorities
- Or failure to take active measures to prevent the commission of the
offence .
- Misprision of Treason- felony
- Punishment- maximum of Life imprisonment
- Malyo v the AG (1989) ZR 36 SC
- Valentine Shula Musakanye v the AG (1981) ZR 188 HC
Treason- Felony – s45 PC
• A person is guilty of Treason – Felony by virtue of (1)preparation to
obtain by unlawful means alterations of the law or government
policies. (2) prepares to appropriates any enterprise of the executive
power of the state
• Punishment for offence of Treason- Felony is imprisonment for a
maximum term of twenty years
Threat to Law & Order - (i) Promoting Tribal Wars – S46
• S46 criminalises any conduct/activities not authorised by the state that is likely to result in war or
any warlike undertaking
• Such conduct must be directed against a chief or tribal group ( against a particular group of people)

• S46-’Any person who, without lawful authority, carries on, or makes preparation for carrying on, or
aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for, by,
or against any chief, or with, for, by, or against any tribal group, is guilty of a felony, and is liable to
imprisonment for life’

• Hence what S46 does is to make it unlawful/illegal

(i) To carry out a war against a chief or tribal group
(ii) To make arrangements to carry out a war against a chief or tribal group
(iii) To aid in carrying out a war against a chief or tribal group
(iv) To advise on the carrying out of any warlike initiative against a chief or tribal group.

• The conducts stated constitutes the AR of the offence

 (i) Promoting Tribal Wars
• MR of the offence under s.46 is not provided in the PC
• This implies court may treat such an offence as one that falls
under strict liability offences
• Or Crt may read in the MR ( if MR is read in this would mean the
prosecution would need to prove it beyond reasonable doubt.
• Any person if convicted under S46 is guilty of a felony
• Liable to life imprisonment
 Inciting Mutiny, Soldiers or Police S.48
• Offence is committed by way ;
• Seduction or inciting of a person serving in the Defence, or Police Force
• From his duty and allegiance to the President (
• To commit an act of uprising or any disloyal (or rebellious act)
• i.e. act of making a rebellious assembly;
• No need for seduction to be successful in order for it to constitute a crime
• AR- the act of Seduction or inciting
• MR drawn from the word ‘advisedly’ careful thinking or deliberation – prosecutions needs to prove this
beyond reasonable doubt
• In addition the following would need to be established
• That the person seduced or incited is a member of the Zambia Defence Force or Zambia Police Services
• That the purpose of seduction or incitement was disloyal or disobedient
• Nature of offence – felony
• If charged & convicted one would be liable to imprisonment for life.
Aiding Soldier or Police in Acts of Mutiny
S.49
• S49 - Any person who by way of incitement to rebellion (sedition) aids
a soldiers or police in acts of mutiny is an is accessory.
• Accessory if charged & convicted is guilty of a misdemeanour
• Penalty is not specified
• There crt may exercise discretion to impose any imprisonment term
prescribed as general punishment for misdemeanour under s.38 PC
• Note
• General punishment for misdemeanours
• S 38. When in this Code no punishment is specially provided for any
misdemeanour, it shall be punishable with imprisonment for a term not
exceeding two years or with a fine or with both.
Sedition s.57-60- I
• Sedition- action or speech urging rebellion against the authority of the state.
• Examples of Seditious practices S57 ;
• expression of any seditious words;
• prints, publishes, sells, offers for sale, distributes or reproduces any seditious
publication;
• Importation of seditious publication, unless there is an absence of knowledge as
to the nature of material
• If charged & convicted person would be guilty of an offence and liable for a first
offence to imprisonment for seven years or a fine not exceeding six thousand
penalty units or to both;
• (2) Any person who, without lawful excuse, has in possession any seditious
publication is guilty of an offence and is liable for a first offence to
imprisonment for two years or to a fine not exceeding three thousand penalty
units or to both, and for a subsequent offence to imprisonment for five years; .
Sedition -II
• A person can only be prosecuted for an offence under s57 if there is written consent
from the Director of Public Prosecutions (58)
• Failure to verify testimony under S57 can lead to accused escaping criminal liability
(59)
• S.60 defines Seditious intention – Must be directed against the Government
established by law
• Advocating the desirability of overthrowing the Government established by law
• To bring about hatred, to excite dissatisfaction against the Government
• To excite the people of Zambia to attempt to secure the modification of any matter in
Zambia by unlawful means
• To bring into hatred or to excite dissatisfaction against the administration of justice
• To raise discontent or disaffection among the people of Zambia;
• Promote feelings of ill will or hostility between different communities or different
parts of a community;
Sedition -III
• Promote feelings of ill will or hostility between different classes of the population
of Zambia;
• Advocating for any part of Zambia to become an independent state thus
separating from the republic
• To incite violence or any offence detrimental to public order or in disturbance of
the public peace
• R v. Chona (1962) R & N 344 HCNR
• A was the national secretary of the United National Independent Party (UNIP) he
issued a document which described the evils of colonial rule. A was charged &
convicted with publishing a seditious publication.
• Crt held that the elements of seditious offences are satisfied when the seditious
words or publication are intended ‘to bring into hatred or contempt & to excite
disaffection against the administration of justice in the Territory’
• Dpp v N’gandu and others (1975) ZR 253
Offences Against Public Safety
• (i) 13.2.1 Unlawful Assembly & Riots
• Addressed under SS.74 – 83 PC
• Definition of Unlawful Assembly & Riots – S74
• Three or more persons gather with intent to commit an offence & conduct themselves in a
manner which instigates fear in the neighbourhood thus breaching peace
• It is irrelevant that the original assembly was lawful need to conduct themselves with a
common purpose
• Unlawful Assembly – misdemeanour. If charged any person would be liable to five years
imprisonment (s75)
• An Assembly needs to be differentiated from a meeting
• Meeting involves prior organisation, agenda, & would include delivery of speeches & passing
of resolutions
• Assembly – ( as referred in PC) would involve the gathering of three or more persons with a
purpose of causing disturbance
• Christine Mulundika and 7 others v the people (1995) SJ
Riots- (s74(2)
• A riot –is when the unlawful assembly begins to execute a common purpose by breach of
peace & causing terror of the public (s74(2)
• Therefore elements of a riot are as follows;
• There must be three or more persons
• Must demonstrate unnecessary violence
• Violence as a common purpose
• Need to display the actual violence as to alarm the public
• If any person charged & convicted would be guilty of a misdemeanour & liable to
imprisonment for seven years (s.76)
• Sentences for Unlawful Assembly & Riots are intended to be a deterrence to the offence.
• Most recent decision is Barotse case
• 7 defendants charged with the offence of rioting which occurred between January 1 st & 13th in
Winela area in Mongu
• Sentenced to 4 years imprisonment with hard labour
Disorderly Behaviour in Public Place (ss. 84-90)

• Examples include
• Going armed in public & cause terror to any person. Such a person would be guilty of
misdemeanour (s84)
• Any person who takes part in a flight in a public place is guilty of a misdemeanour &
liable to imprisonment for 6 months or fine (s88)
• Challenge to fight or attempt to fight a contest is prohibited (s89)
• Threatening violence or opening fire with intent to alarm any person. Such person would
be guilty of misdemeanour & liable to 5 yrs imprisonment (s.90)
• All the above offences are examples of situation which can lead to public violence
• Commission of any of the above offences would lead to breach of peace
• Penalty – Offences that constitutes disorderly in a public place are all misdemeanour.
Imprisonment ranges from 6 months to five yrs.
•
Offences against Public Authority
• (i) 13.3.1 Contempt of Court (s.116)
• Disrespecting judicial proceeding
• Failure to attend judicial proceeding upon been called upon
• Refusal to follow/obey court procedures such as been sworn
• Causing disturbance during a judicial proceeding
• Publications of any documents or evidence which crt deems to be
private during the proceedings
• Or committing any act which will result to disrespecting the judicial
proceedings
• Misdemeanour-liable to six months imprisonment or to fine
(s.116(1)
• The purposes of the offence is for the purposes of promoting &
protection the integrity of criminal law thus criminal justice system
The People v. Richard Kunda (1978) ZR 75
(HC)• A magistrate in Kitwe was scheduled to take a case involving theft
• When case was called upon, it turned out that the Crt interpreter was not present
• Public prosecutor informed the magistrate that the interpreter who was outside
the crt had said that he was not reporting for duty that morning
• The magistrate decided that since the interpreter had not officially informed him
that he was not on duty the interpreter’s conduct constituted contempt of the
court
• Magistrate issued a bench warrant for the arrest of the interpreter. Warrant was
executed almost immediately interpreter was remanded in custody overnight
without been charged.
• Crt proceeding for contempt were brought against him. Interpreter argued in his
defence that he had informed the crt clerk that he was ill who issued him with a
letter to take to the hospital.
• magistrate argued that interpreter had not only failed to inform the crt about his
illness but also failed to make necessary arrangement for a substitute interpreter
• Interpreter’s conduct was deliberately intended to disrupt the crt proceedings
The People v. Richard Kunda cont.
• HC contrary argued that the interpreter should have been properly charged under s.116(2)
before bring crt proceedings against him
• Proceedings should have been heard by another magistrate
• Held failure of the interpreter to attend crt was did not constitute disrespectful conduct
towards the crt
• Interpreter had a valid reason not to report to work as he had informed his superior the clerk
who had issued him with a letter
• It is not the function of a crt or magistrate to utilise the provision of s116 PC as authority to
punish or discipline members of staff who make an error. This should be dealt with under
disciplinary provisions of the Public services regulations.
• A was been punished twice having spent a night in custody & punishing him for contempt of
Crt. appeared to suggest that the interpreter was being punished twice
• Proceedings were irregular, amounted to abuse of judicial process conviction & sentence
quashed
Fraud & Breaches of Trust by Public Officers
s.123
• s.123 criminalises acts of persons working in public services (government) such as
ministries, local councils, learning institutions under the supervision of the Ministry
of Education etc.
• This any person who works in public services who commits fraud or breach of trust
whilst undertaking his duties
• Act must be harmful to the public
• Problems with S.123 absence of definition of what may constitute ‘fraud or ‘breach
of trust’
• Any person if charged & convicted is held guilty of a misdemeanour.
• Penalty is not specified
• Implication is Court can exercise its discretion to impose a sentence relying the
general guidelines for punishment under S38
Disobedience of Statutory Duty s.126
• S126 criminalises any one who disobeys any statute or act by acting
contrary to what is stipulated
• One can either act contrary to what is stipulated by the act or omit to do
what is stipulated by the act
• The act or omission should concern the public as a whole
• Offence is a misdemeanour
• Penalty for disobedience of a statute if found guilty is two years
imprisonment
• References/Readings
• Chapter 10 Kulusika
• Penal Code Cap 87
UNIT 12 - GENERAL DEFENCES
LECTURE
General Defences Lecture

Learning Outcomes:
1. By the end of this session, you should be aware of the
general defences available to a defendant/accused which
can be relied upon to eliminate criminal liability for whatever
offence charged
2. Know & understand the provisions there are addressed in the
PC
3. Be able to cite examples of cases to illustrate the provisions.
 DEFENCES
D might not be held liable for an offence committed with the
necessary mens rea and actus reus if d has a valid defense

Justification – argument that an act is permitted under the law

(self defence, neccessity)
Excuse – D is not to blame for causing harm (insanity, infancy
etc)
 INFANCY

section 14 of the PC
Below 8 – no criminal liability
Under 12 – presumed criminal liability
Under 12 – cannot have carnal knowledge
What is the defence of insanity?

• Relevant in criminal law at two

points in time:
1. At the time of committing the
criminal offence
2. At trial
 INSANITY CONT’D

M’NAGHTEN [1843-60] ALL ER R 229 HOUSE OF LORDS:

disease of the mind

defect of reasoning

the defendant did not know what he was doing or that it was wrong
 DEFECT OF REASON
Clarke [1972] 1 ALL ER 219, CA – defect of reason is more
than a momentary confusion or absent mindedness; a
deprivation of reasoning power is required
 DISEASE OF THE MIND
Sulivan [1984] AC 156, HL – impairment of mental faculties
of reason, memory and understanding

For mental impairment to be due to a disease, the

immediate cause must be internal to D
• In Kemp [1957] the C of A stated that the law:
• Is not concerned with the brain but with the mind, in the sense that
‘mind’ is ordinarily used, the mental facilities of reason, memory and
understanding.
• Note: It might come as a surprise to learn that epilepsy, diabetes and
the effects of a brain tumour can also lead to a finding of insanity
• Difference between hyperglycaemia and hypoglycaemia
• If D alleges he only committed a crime because of disorientation and
aggression arising from diabetes the courts take one of two
approaches:
1. Hyperglycaemia - If D forgets to take his insulin and gets a high
blood sugar level – resulting in a criminal act - this is seen as deriving
from the diabetes and is classed as a disease of the mind.
• Hypoglycaemia - If D takes too much insulin, resulting in a too
low blood sugar and a consequential criminal act, the courts
take the view that this is due to an outside source (the insulin)
which does not fall within the M’Naghten Rules.
• This is classed as defence of non-insane automatism
(automatism) which – if successful – results in a full acquittal.
Read: Hennessy [1989] and Quick [1973].
 IGNORANCE OF THE NATURE AND QUALITY
OF THE ACT OR THAT IT IS WRONG
D must prove that because of his defect of reason due to a disease of the
mind either he did not know the nature and quality of his act and if he did,
he didn’t know that it was wrong.
Assuming he knew what he was doing, did he know it was wrong? –
Windle [1952] 2 QB 826, CCA
Is the defence of insanity
available in Zambia?
 INSANITY CONT’D
S 11 of the PC – presumption of sanity
S12 PC – Insanity definition
Read –
Khupe Kafunda v the people ZR31 SC
Chiyoma v the People
Chabala v the people (1975) Z.R 128
Joseph Mutapa Tobo v the People (1991) SJ (SC)
Mbaye V The People (1975) Z.R. 74 (S.C.)
 Unfit to plead
If D cannot appreciate the significance of the trial due to his
mental or physical state he may be found unfit to plead.

S160 – 167 Criminal Procedure Code

Malita Banda v. The People (1978) ZR 223 (SC) Supreme
Court
Mwaba v The People (1974) Z.R. 187
Siamubala Sende Sianzele V The People (1977) Z.R. 131
(S.C.)
Mbaye V The People (1975) Z.R. 74 (S.C.)
INTOXICATION
 INTOXICATION
Intoxication not generally a defense to a criminal charge
 Specific intent crimes – Dpp v Majewski (1977) AC 443 House of
Lords
 Basic Intent crimes
 Intoxication Cont’d
PC S13 (1) – intoxication generally not a defence
Exceptions – 13 (2)
 Where D is not responsible for his intoxication he has a valid defense for
his actions
 Where intoxication lead to a disease of the mind – read Davies (1881)
14 COX CC 563
 Where D Did not form the necessary mens rea
 Intoxication Cont”d
• Lubendae V The People
• “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”
• In Lubendae V The People supra - the defence of intoxication
negates the necessary intent when there is:
1. Heavy drinking;
2. The accused person’s capacities were affected to the extent
that he may not have been able to form necessary intent.
• Read the following cases -
• Timothy Chakolwa Mulonda v The People [1978] SCZ
• Lubendae V The People (1983) Z.R. 54 (S.C.)
• Simutenda V the People (1975) Z.R 294
• Kanyanga v The People [2012] ZMSC 77
 SELF DEFENCE
Law permits people to protect themselves using force, if
necessary , to prevent an immediate attack or its continuation.
Elements:
1. Attack
2. Necessary use of force
S17 of the PC
 SELF DEFENCE CONT’D

Reasonable man test used. Read the following:

Elisha Malume Tembo v. The People (1980) ZR 209
Supreme Court
Rosalyn Thandiwe Zulu
R v Chibabe Hang’umba
Kambarange Mpundu Kaunda V The People (1992) S.J.
1 (S.C.)
 SELF DEFENCE CONT’D

Force must be reasonable and necessary:

1. The necessity for any defensive action
2. The amount of responsive force that may be used - Kenious
Sialuzi V The People (2006) Z.R. 87
3. The duty to retreat – The law insists that X must demonstrate by
actions that he or she does not want to fight (see The People v.
Mudewa (1973) ZR 147 High Crt for Zambia)
4. The imminence of the threatened attack
SELF DEFENCE CONT’D
• Chinyange Muyenga V The People S.C.Z Judgment No. 14 Of 2009 - A
wrongdoer who causes or invokes a fight and in the process of which
he kills a person cannot avail himself of the defence of self-defence,
or provocation. Self-defence or provocation , is only available when
the deceased was the assailant or the provoker.
 Diminished Responsibility
Defence of Diminished Responsibility is introduced
under sec 12A of PC
However a successful defence of diminished
responsibility does not lead to an acquittal
It reduces murder to manslaughter
Defence is only available to the offence of murder
Diminished Responsibility cont’d
• Defence of diminished responsibility is intended to provide a
partial excuse for offenders with mental disorders who could
not rely on sec 12
• In order for defence to be accepted by Crt, three elements
must be proved (under S12A)
1. X must be suffering from an abnormality of mind
2. This must be due to one of the causes enclosed under sec
12A(1) PC – Thus (i) condition of arrested development of
mind or (ii) a condition of retarded development of mind or (iii)
any inherent, or induced by disease or (v) induced by injury.
3. Any one of these causes or conditions has substantially
impaired D mental responsibility.
 ‘Abnormality of Mind’
• In order to establish Abnormality of Mind medical evidence is
required ( R v. Byrne [1960] 3 ALL ER 1.
• Abnormality of mind Lord Packer, in R v Byrne (1960) ……
‘Abnormality of mind… means a state of mind so different from
the ordinary Human beings that the reasonable man would term
it abnormal.
• Abnormality of mind could include depression, jealousy & other
conditions which have the capacity of reducing the A’s will
power to control actions.
 ‘Substantial impairment of
responsibility
• substantially impairment of responsibility suggests at least two
requirements must be met
1. The abnormality of the mind had substantial effect on the
accused capacity of judgement & understanding or control
2. Such a condition reduces in a substantial way, the accused
responsibility with the result that the accused’s criminal liability
is reduced
• What constitutes ‘Substantial impairment’ is a matter of fact
which must be proved in Court.
MVULA v THE PEOPLE (1990 - 1992) Z.R. 54 (S.C.) - For the
defence of diminished responsibility to succeed, the defence must
prove, on a balance of probabilities, that the accused's mental
responsibility for his acts or omissions in doing, or being a party to,
the killing of another was substantially impaired
Mwabuka v The People [2014] ZMSC 29
Ahluwalia, R v [1993] – depression can fall under diminshed
responsibility
R v Dietschmann [2003] UKHL 10
 CONSENT
D does not deny the actus reus but claims the consent of the victim justifies
his consent
R v. Wilson [1996] 3 WLR 125
The defence of Consent is limited for unacceptable/unlawful purposes ie a
person cannot consent to be killed
 MISTAKE
 S 7 PC – mistake of Law is not a defence

 S 10 – Mistake of fact – must relate to the actus reus – valid defence

 Mistake of fact prevents D from forming the necessary mens rea

 Mistake cont’d
R v. Tolson (1889) 23 QB 168
DPP v. Morgan (1975) 2 ALL ER 347 (HL)
Patson Chembo Chimbala v the people (1986) z.r. 7 (s.c.)
Mutambo and Others v The People (1965) Z.R. 15
Sankalimba v The People (1981) Z.R. 258
 Defence of Duress
• Read S 16 of the PC
• The defence is available in circumstances where one commits an offence
as a result of coercion, compulsion or fear of harm being occasioned if he
does not yield
• However there are certain conditions one needs to satisfy in order to
benefit from this defence.
a) there must be a threat to cause grievous bodily harm or death
(Graham (1982) ALL ER 801, R v Singh 1973 CA)
b) directed at A, his family or whoever he feels responsible over
(Conway (1889) 3 ALL ER 1025)
c) A must have reasonable belief that the threat will be executed
immediately or imminently if he doesn't obey
d) A must not have an opportunity to seek official protection
• Note that the defence is not available in cases of murder, attempted
murder, aggravated robbery and treason.
• Also not available to gang members and those who put themselves in
situations where they are forced to commit offences. R v Ali 1995 CA
• See:
• the DAUDI PHIRI case on a discussion on duress
• Elias Kundiona V The People (1993) S.J. 49 (S.C.)
UNIT 13- PARTIES TO A CRIME
• So far in analysis of CL we have been able to assume that only one
defendant is involved
• We have been considering that person’s liability for acting alone
 Mode of Participation
• When two or more persons take part in a commission of an offence
they are regarded to be jointly participating in effecting the
commission of the offence
• Therefore they may be held liable for the offence
• Role of criminal law – assess the role of each of parties & determine
the scope of criminal liability – Ashworth, A Principles of criminal law
(1999)
The Law
• PC, Cap 87, S 21
• Foresees a situation where one person joins another persons in an unlawful
enterprise to commit an offence
• Each person involved in the commission of the act is regarded to have committed
the offence
• Could be held criminally liable
• Section creates four categories of offences
1. Offenders who actually commit the offence
2. Those who enable or assist in the commission of the offence
3. Offenders who aid or assist the commission of the offence
4. Those persons who may not be present at the offence
• There are two categories of offenders in offences involving
participation in offence
1. Principals
2. Secondary parties (or accessories)
Principal Offender
• Principal is the person who commits the actual actus reus of the
offence charged.
• S21(1) PC a person whose act is the most immediate cause of the
commission of the offence
• It is the one whose act is the most immediate cause of the AR.
• It is the principal offender who makes the knife wound which causes
the death of the victim in a crime of murder
• Or who snatches the bag in a crime of theft
Exception - Doctrine of innocent agent
• Exception to the rule of principal offender is the one whose act is the
most immediate cause of the AR.
• Where a D acts through an intermediary who is an ‘innocent agent’
because e.g. he is below the age of criminal responsibility, it would
be the instigator who will be regarded as the principal offender (sec
14 PC) - ABEL BANDA v THE PEOPLE (1986) Z.R. 105 (S.C.)
Secondary Parties
• Is one who aids, abet (assists), counsels or procures (actus reus) the
commission of an offence & is liable to be punished as a principal
offender.
• ‘aids’ – giving assistance to the principal in the commission of the
offence (NCB v. Gamble (1959) 1 QB 11. This may be before or at the
time of commission.
• ‘Abets’ – (ibid) means to incite, to instigate to encourage the
commission of the offence at the time offence is committed.
• ‘Counsels’- advise, to solicit this occurs before the commission of the
offence (Att-Gen. v. Able (1984) 1 QB 795.
• ‘Procures’ it may mean causing the commission of the offence or
bring about its commission. Need for a causal relationship between
the secondary party’s acts & those of the principal (Blakeley v. DPP
(1991) Crim. LR 763).
• Liable to be charged, tired & convicted
• Must have MR in relation to the conduct
• Must also have MR in relation to crime committed by the principal
Actus Reus of accessory
• General rule: The principal is the person who commits the offence the
commission by the principal of the offence charged
• Secondary party is one who facilitates the commission by the principal of the
offence charged

• In order to be charged & convicted as an accessory, the accused must have

given assistance or encouragement( R v. Calhaem (1985) 1QB 808.

• Is defined by the word ‘aid, abets, counsels or procures’ S. 21, 22, 23 PC Cap
87 laws of Zambia.
• E.g. cheering.
Giving assistance or encouragement

• Eg Driving the principal to the scene of crime as was the case in DPP
for Northern Ireland v. Lynch (1975)
• Pinning down a woman to be raped (Clarkson (1971)
• Opening a bank account to enable the principal to proceed with the
money laundering process (Thambiah v. R (1965)
• Supplying items or information for use in the commission of a crime
(NCB v. Gamble (1958))
Mens rea of the accessory
1. D must intentionally do the act of assistance or encouragement,
realising that they are bound to assist or encourage the principal to
perform what constitutes a commission of the crime
2. He or she (must) know the principal is committing the offence or
will or might commit the offence
3. Secondary parties must intend by conduct to bring about the
commission of the offence
• Accessory can only be convicted only if he or she has knowledge of
the circumstances surrounding the AR
• MAKETO AND 7 OTHERS v THE PEOPLE (1979) Z.R. 23 (S.C.) – mere
presence at the crime scene does not amount to aiding and abetting –
assaulted whilst in police custody and died due to injuries inflicted.
• INAMBAO v THE PEOPLE (1969) Z.R. 84 (C.A.)
Examples – Secondary Parties
• ‘aids, abets, counsels, procures’
• Alimon Njovu & Felix Njovu v. The People (1998) ZR 5 Supreme Court
• Appellants were convicted of murder on the basis that they together with
others jointly & whilst acting together killed Emmanuel
• Both appellants took part in concerting the robbery & breaking in at Vintage
Zambia Ltd
• There they murdered the night watch man
• Stole quantity of goods including the welding machine
• Reference was made to decision in Mwape v The people – could argue that
there was no evidence to suggest that there was an agreement to use violence
Alimon Njovu & Felix Njovu v. The People (1998) ZR 5 Supreme Court

• In this particular case – was evidence that the appellant was in

possession of the welding machine after the robbery which would
have made him at least guilty of receiving
• Appeal was allowed on the basis that appellant was not acting in
common purpose with the gang. Despite being involved in the
breaking in there was no agreement as to the possible use of force.
Appellant did not take part of the killing. Therefore could only be
convicted for store breaking.
Mohan v. R
• D was quarrelling with M, when R who is D’s father ran out of his house & attacked M
with a cutlass
• D went off & collected cutlass
• Both hit blows at M, who collapsed & later died
• His death was only caused by the leg wound
• D & R were both convicted of murder they appealed on the ground that there was no
evidence of prearranged plan to attack M & argued that the crown must show which
of them struck the fatal blow
• Held the two men were attacking the same man with similar weapons with a
common intention – to suffer grievous bodily harm
• Each appellant was present aiding & betting the other in wounding M appeal
dismissed.
 OFFENCES COMMITTED BY JOINT OFFENDERS (JOINT UNLAWFUL
ENTERPRISE)

• The law – S 22 PC
• Basic character of an unlawful joint enterprise is that the course must
be undertaken by two or more persons
• Need for a shared common intention
• In a joint unlawful enterprise the secondary party would be liable for
offences committed by the principal in carrying out that purpose.
• Secondary party is guilty of offence regardless of the role they play in
joint venture
• This means where a member of an unlawful joint enterprise causes
death, members of the joint enterprise could also be held guilty.
Joint unlawful enterprise -
The Doctrine of Common Purpose - I
• This doctrine entails that ‘there must be a community of purpose with the party
actually committing the crime at the time the crime is committed’ (Hatchard &
Ndulo)
• Doctrine is clearly stated in the following cases of mwape v. The people (1976) ZR
160 – Accordingly common intent needs to be established in unlawful joint
enterprises before criminal liability can be established.
 The Doctrine of Common Purpose - II
• Winfred Sakala v. The People (1987) ZR 23 Supreme Court – aggravated robbery –
watchman axed – agreement was there no force would be used.
• Appellant argued that he had agreed to participate in a simple breaking & theft in which
there would be no violence
• Crt held that though appellant had been told that there would be no harm done to the
watch man appellant must have realised that possibly some force against the watchman
if he discovered the intruders
• The act of assaulting the watchman did not take the act out of the scope of common
purpose but was clearly a apparent consequence of deliberately setting out to steal
property known to be under the immediate & personal care & protection of the watchman
whose specific duty was to prevent & deter robbers like the appellant from taking his
employer’s property – what happened was a probable consequence of their actions
• Appeal dismissed
• Mwape v. the people (1976) ZR 160
Offences committed outside the common
purpose - I
• If an offence is committed outside the purpose of the joint enterprise
by the principal offender, the accessory would not be held liable
• see Davies v. DPP 1954] AC 378
• Benson Phiri Another v People [2002] ZMSC 55; accessory -common
assault and death sentence commuted.
• Phiri And Anor V The People Benson Phiri And Sanny Mwanza V The
People (SCZ Judgment No. 25 of 2002.)
• Foresight of possible departure
Where f foresees that in the course of the enterprise the other party may
carry out, with the necessary MR, an act which brings about another
offence, F is liable for the offense if committed by the other party in the
course of the enterprise [Chan Wingsiu v R (1984)]
Offences committed outside the common
purpose - II
• Unforeseen ‘fundamentally different’ acts
This is where a specific mode of attack is agreed upon by the enterprise
(for instance a plan to assault Y with sticks) but then the principal
offender uses a different mode – for instance principal offender hits Y
on head causing s to die due to skull fracture. This such a situation
persons belonging to the joint enterprise would not be held liable.
Offences committed outside the common
purpose - III
• Accidental departure
Where the object of the joint enterprise is to beat Z up. But however in
course of beating Y, Y falls against concrete floor fracturing his skull
leading to his death. The joint enterprise would be held liable for the
unintended death by inflicting of grievous bodily harm in beating
leading to death
Offences committed outside the common
purpose - IV
• Discontinuation of assistance or encouragement
- Need for the secondary party to do something to counteract his or
her previous contribution to the principal offender.
 Need for shared common intention a joint unlawful enterprise
 Offenses committed outside the shared common Intention?
 Davies v. DPP (1954) AC 378
 Foresight of secondary party with regards to principal offender departure from agreed
terms:
 Chan Wingsiu (1985) AC 168
 Winfred Sakala v. The People (1987) ZR 23 Supreme Court
 Unforseen fundamentally different act – Powell and English (1997) AC 1

 Accidental departure – parties are liable for the negative resultant consequence

 Withdrawal from secondary party liabiliy – O’Flaherty (2004) EWCA Crim 526: a person
must do enough to demonstrate that he is withdrawing from the joint enterprise –
read:
 Becerra (1975) 62 Crim LR R 212 –running away from the crime scene before
completion of the purported offence is not enough
 Rook (1993) 2 ALL ER 955 – not simply showing up on the day planned for the crime is
not sufficient.
 UNIT 14 -
Inchoate/Preliminary offences
 Outline
• Address the three Preliminary/ Inchoate Offences
• Attempt
• Conspiracy
• Incitement
• One cannot be charged with ‘attempt’ or ‘conspiracy’
• The indictment must be drafted with reference to a complete crime
• E.g. conspiracy to murder or attempt to steal
• The three offences are Preliminary/Inchoate because they penalise
steps towards the commission of the crime.
 Attempt
• The law of attempt penalises any person for doing something with
intent to commit an offence
• The defendant must have tried to commit the offence & have got
relatively close to achieving his objective.
• Therefore the accused must have done something more than
preparatory in committing the full offence or substantive offence
• The law of attempt requires proof of the actus reus & mens rea of the
offence charged before liability could be established
• The law enables the state to act before an offence is committed
through its enforcement agencies.
 The law of Attempt - I
• Penal code, Cap 87, section 389
• S 389(1) creates a test of the actus reus of the offence of attempting
to commit an offence
• The phrase ‘begins to put his intentions into execution by means
adopted to its fulfilment and manifests his intention by some overt
act’
• Mens rea is defined as ‘intending to commit an offence’ (intent to
commit an offence)
• S. 389 (1) establishes three types of impossibilities which do not affect the criminal
liability of the accused

1. The accused’s ‘fulfilment of his intention is prevented by circumstances

independent of his will’ or
2. ‘He desists his own motion’ or
3. ‘Circumstances unknown to accused it is impossible to commit the offence’

• Noted that the PC uses certain terms to define actus reus & mens rea of the
offence of attempt
• Terms used are not easy to define neither do they help in clarifying the meaning.
 Actus reus of Attempt - I
• The law will only intervene to penalise an offender for attempting to
commit an offence only when the offender begins to execute his
intentions by taking concrete steps in committing the offence ( ‘some
overt act’).
• The offender need not to have completed the offence [R v. Gullefer
(1990) 3 ALL 882 (CA)]
• R v. Jones (1991) 91 Cr App R 351 – attempted murder
• R v. Campbel (1991) 93 Cr App R 350 – post office case
• Offender must have done something more than ‘merely preparatory’
(ibid)
• Offender must have begun to carry out the commission of the offence
which must be manifested by ‘ some overt act as per S389(1).
• Absence of explanation for term ‘overt act’
• S52 offers an explanation as to the meaning of the phrase although
this is related to offences against the public order
 Actus reus of Attempt - II
• ‘Overt’ could mean ‘concrete’ & capable of being proved in evidence
• Act broad meaning is adopted as to mean any act
• Wording under s389 grants the court discretion in determining the
actus reus
• In making a determination of criminal liability each case is decided on
its own merit in order to ensure justice is upheld.
 Mens rea of Attempt
• Accused must intend to commit the offence claimed to have been
attempted (s389(1)
• Implies that the prosecutor must prove specific intent – that is the A
intended to bring about the commission of the offence alleged to
have been attempted
• The accused must intend the act required by the offence
• In the case of murder, the act is to kill
• In the case of rape it is sexual intercourse with a girl or woman
without her consent.
• Need for the accused to actually know/be aware of the circumstances
required by the actus reus.
 Possibility of availability of a defence?
• At common law, if the full offence was impossible to commit = there
would be an absence of criminal liability
• In the case of attempt the PC under sections 389(2) & (3) rules out
impossibility as a defence; For instance in a where;
1. ‘Intention is prevented by circumstances independent of his will’ [s.
389(2)]
2. ‘He desists of his own motion’ [s. 389(2)]
3. It is impossible to commit the offence due to circumstances
unknown to the accused [s. 389(3)]
• For example under s. 389(3) if Edward was to attempt to receive & retain
stolen 2nd hand clothes, when in fact the clothes had been donated for
distribution to orphanages in his area of residence.
• Edward would be prosecuted is he thinks the clothes are stolen goods
• The circumstances unknown to him are immaterial except for punishment
purposes
• Such offenders are subject to prosecution because had facts been as they
believed them to be they would have committed the offence in receiving
and retaining stolen goods.
• Criminal liability will still be established in all the above mentioned
circumstances
 Attempt- Scope & Ambit
• Chilomba v. The people (1974) ZR 151 SC
• Appellant was convicted of attempting to cause death contrary to then S.215 PC
• Issue in case was to consider whether the appellant was correctly convicted of
attempting to cause death or whether he should be convicted of a lesser charge
under s224 PC
• Failure to establish the appellant’s intention to kill therefore conviction under s215
of attempted murder could not stand
• Held due to absence of intention to kill that appellant intended to do grievous harm
to the complainant as set out under then s224
• Sentence was substituted to 3 years imprisonment with hard labour
• The People V Ackim Manda and Malie Simbeye (1992) S.J. (H.C.)
• Benwa and Another v The people (1975) Z.R.1
• People v Chikwikwi [2011] ZMHC 90
Jonathan Phiri v. Queen (1964) ZR 24
• Appellant was convicted of the attempted theft of a hand bag contrary to S243 & 352
of PC
• Was sentenced to 3 months imprisonment with hard labour
• He appealed against conviction & sentence on the ground that he was looking for
employment & did not attempt to sell
• The appellant was discovered in the office with his hand inside the complainant’s
hand bag
• Held that appellant was not attempting to sell the handbag but attempting to steal
from it
• Appeal was dismissed a sentence of three months’ imprisonment with hard labour
was imposed.
• Habeenzu v the people – attempted rape
 Conspiracy
• Prior to the amendment of PC (sections 394 -396) the law on conspiracy was
derived partly from principles of common law.
• Common law definition of Conspiracy is as laid down in Mulcahy v. R (1868)
LR 3 HL 306.
• Crt defined conspiracy as ‘an agreement by two or more to do an unlawful
act or do a lawful act in an unlawful way’
• Therefore Conspiracy is an agreement between two or more persons to
commit a criminal offence
• An agreement is an essence of the offence
• The agreement may be to murder someone, import heroin into this country.
 The law on Conspiracy
• PC, Cap 87, S.394
• Four requirements specified by the law
1. Two or more persons conspiring to commit an offence
2. Intention to effect the unlawful purpose
3. Agreement to carry out the unlawful purpose
4. Act may be done in any part of the world
 Actus reus of Conspiracy
• Agreement is the essential element of actus reus
• Manifested either orally, in writing or by action
• Agreement must be communicated to all parties [R v. Scott (1979)]
• Definitive conclusion regarding offence to be committed must be
reached [R v. King (1966)]
• It is not necessary for all parties to play an active role in the
commission of offence [R v. Siracusa (1990).
 Mens rea of Conspiracy
• Is the intention to play a role in the concluded agreement to effect the unlawful
purpose
• D must have the mens rea required for the offence they intend to commit
• E.g. For the offence of murder, they must be the necessary malice aforethought
• Conspiracy is an offence of the mind
• An agreement is fundamental as entails;
1. Details about how parties will effect their unlawful conduct
2. This would be undertaken in a collaborative manner & in accordance to the
intentions of the parties
3. Pursing the course would amount to the commission of a felony or
misdemeanour
Conspiracy – Yip Chiu- Cheung v. The Queen [1995] 1 AC
111 Privy Council
• D was convicted of Conspiracy to traffic in heroin contrary to common
law & S4 of the Dangerous Drugs Ordinance
• Conspiracy concerned an agreement between D & N (An American
undercover drug enforcement agency) that he would meet D in Hong
Kong where he would receive the supply of heroin which N would
take to Australia
• D appealed on the basis that his co-conspirator N (who has not been
prosecuted) was an under-cover drugs enforcement agent who had
no intention that the crime would be committed.
• Appeal was dismissed on the basis that
Yip Chiu- Cheung v. The Queen [1995]
• No moral guilt attached to the to an undercover agent who was at all
times acting courageously with the motive of bring to justice a gang of
criminal drug dealers
• It would be wrong to treat an the agent as having any criminal intent
– there were cases in which enforcement agents pretend to join a
conspiracy in order to gain information about plans of criminals
• Though N intended to carry the drugs across he never expected to be
prosecuted if the plan had been carried out as planned
 Incitement
• Crime of Incitement is a common law offence whereby the D persuades or
encourages another to commit a crime
• When tried on an indictment it is an offence punishable with a fine &
imprisonment at the discretion of the crt
• PC is silent on the offence of Incitement
However if it were an offence under the PC likely that AR of the crime would
have been the act of persuading, encouraging or commanding another to
commit a crime.
MR- the incitor must intend that as a result of persuasion, the incitee will
bring about the crime.
Race Relations Board v Applin [1973] 1 QB 815
UNIT 15 - PUNISHMENT LECTURE
Legal Punishment
• What is Punishment?
• Why do you think it is necessary to punish those who break the rules of criminal law?
• Punishment refers to the following:
- It is something unpleasant for the offender
- It is a consequence of a crime
- It is imposed on the perpetrator of a crime
- It amounts to a sanction by a court with the necessary authority ( Van der Merwe
1996: 3)
- Ndulo (1994) defines punishment as the infliction of some form of pain or
deprivation on a person by the criminal justice system.

• Prevention of crime, protection of society, rehabilitation of the offender.

Justification for Punishment
• Therefore anyone who breaks the rules of criminal law without a
lawful justification if pronounced guilty is liable to be punishment.
Why?
• The main objectives of punishment are retribution, incapacitation,
deterrence & rehabilitation
• Over the last few weeks, we have seen that punishment is the
response of criminal law on behalf of society to those that break the
rules of criminal law( defendant’s wrongful behaviour)
• Punishment imposed by Courts is proof that A has done something
prohibited by CL.
Justification for Punishment- II
• Expression of denunciation/condemnation
- Society’s disapproval of offender’s wrong doing must be publically expressed.
- Why? This might encourage law-abiding conduct & discourage crime (educative
deterrence)
• People who deserved to be punished are only those who have committed criminal
offences
- Punishing an innocent person would cause suffering, general insecurity, disrespecting
the law & cause encourage a guilty person to reoffend
• The amount of punishment imposed must be proportionate to the offence
committed.
• Therefore purposes of punishment are to inflict suffering on wrong doers & prevent
crime (Herbert Packer)
Justification for Punishment III
• There are four main theories of punishment
1. Retribution -Looks back to the crime & punishes because of
the crime.
2. Deterrence
3. Incapacitation
4. Rehabilitation
• The remaining three theories look forward to the consequences
of punishment hopes to achieve something- crime reduction.
• The four theory address the question ; Why do we punish?
Powers of Criminal Courts in Zambia to
Inflict Punishment II
• The Constitution grants the President powers which enable him to
(Article 97)
- Grant any person convicted pardon
- Grant any person respite for a specific or indefinite period of time
- Can substitute a less severe form of punishment from any punishment
imposed
- Remit/forward the whole or part of any punishment imposed ( reducing
one’s sentence)
- President is vested with the authority of prerogative mercy
(privilege/right) in relation to death sentences (Art 97)
Theories of Punishment
• Retribution Theory
• Retribution in punishment is based on the theory that the
balance of the legal order has been disturbed by the commission
of the offence & that it will only be restored again once the
criminal has been punished for his/her crime.
• Retribution reflects condemnation by the community of the crime
• Allowing the offender to go unpunished means that their conduct
is approved of
• This may result in a situation where members of the community
particularly those affected by the crime will take the law into their
own hands in order to avenge the act.
Retribution Theory Cont.
• Term ‘retribution’ entails notions such as vengeance, need for offender
to pay for offence committed (aka ( xpition) expiation or reparation) &
Giving the offender his or her just deserts – what they deserve (desert).
• Ist punishment will satisfy the victim, or relative & friends. Therefore
state is exacting vengeance on their behalf to prevent private
retaliation
• 2nd there is a public need for vengeance to prevent every human being
from retaliating
• Idea of expiation/reparation - offender is made to work off his guilt
through suffering – the offender in being punished is paying off his debt
to society afterwards becomes reconciled with that society
Desert
• Follow the idea that people deserve to be punished if they have broken
the law
• (Most just desert theorists follow the ideas of Emmanuel Kant)
• It is only just & fair that all people must bear the sacrifice of disobeying
the law equally
• By committing a crime offenders have gained an unfair advantage over all
others who have restrained themselves from committing crime
• Therefore punishment is necessary to take away the benefits gained
• To punish someone on that basis that they deserve it focuses on the past
conduct
Summary On Retribution
• Primary justification of punishment lies in the fact that the offences
has been committed & deserves punishment
• Only reasonable that the person who commits a wrong is subjected to
• Punishment which is proportionate to the wrongdoing.
 Deterrence Theory
• Deterrence rests on the assumption that individuals & the community
are deterred from the commission of a crime by the threat of possible
punishment
• The theory is based on the premise that people prefer painless to
painful
• & that there are reasonable beings who will weigh up the pros & cons
of their prospective action before they decide to act. (However this is
not always the case)
Aim of deterrence is to reduce crime by the
threat of punishment
• Deterrence operates at three different levels
• 1. Individual deterrence
• 2. General deterrence
• 3. Educative deterrence
Individual deterrence
• Discourages crime
• In the case of the individual the idea is that the
experience of punishment would be so unpleasant
that the offender would not reoffend.
Individual Deterrence cont.
• The role of the sentencer is to focus on the future & impose a
sentence which is likely to have the most impact on the individual
• However every time a crime is committed the theory of deterrence is
weakened.
• Particularly should the same offender upon release goes back to
reoffend the implication for reconviction would be that the first
conviction was a failure.
General Deterrence
• Threat of punishment deters people from committing crimes
• Having studied the rules of Criminal law as set out under the PC we
have learnt that under most provisions Parliament has stipulated
penalties to be imposed for violation of the rules of CL.
• At a legislative level, this is intended to threaten those who might
anticipate crime.
• At a sentencing levels offenders are punished in order to discourage
others from committing crimes. Therefore punishment is held as an
example of what would happen, should they others in similar
activities.
General Deterrence cont.
• Therefore basis of the theory is that people are deterred from
committing crime by the threat of punishment.
• Note in Zambia, Courts have pursued general deterrence in imposing
sentences.
Educative Deterrence - I
• Punishment of criminals leads to a habit of not breaking the law in a
community over a period of time
• Thus the public is educated of what is good and bad conduct
• For instance every time somebody is punished for defilement the
public morality that defilement is wrong is strengthened and our habit
of not committing the offence of defilement is reinforced.
Educative Deterrence - II
• If suddenly nobody was to be punished for defilement, the moral view
that defilement is wrong would start breaking down & we must start
committing the offence again
• Therefore the educative theory rest upon the foundation that public
morality & inhibitions against committing the crimes are created &
preserved by punishing others regularly.
Incapacitation or Protection of the Public
• For some offenders deterrence or rehabilitation does not work as they
will go on committing the crimes as long as they are able to do so. In
such cases the only solution is to lock such persons up for a long period
of time (as per case Sargent(1975) 60 Cr.App.R. 74
• Incapacitation means that an offender is disabled to commit another
crime or future crimes.
• Long period sentence would thus ‘incapacitates’ or prevent the offender
from reoffending
• What makes the punishment distinctive is the fact that it is likely to be
longer or more severe that what would normally be imposed for the
offence committed.
Rehabilitation/Reformation
• Punishing for the purposes of reforming or rehabilitating the offender
• Intended to improve the character of the offender so that the
offender is less inclined to reoffend
• Aim is to secure conformity not through fear- Turn the offender into a
useful member of society upon release from prison
• Idea is that the offender is treated as a sick & dangerous person who
is in need of treatment
• Therefore lock persons up until they reach a level where they can be
said to have been rehabilitated thus reducing crime by eliminating
reoffending.
Denunciation or Censure
• Comes under the theory of Just desert
• Denunciation = Condemnation/criticism
• While just desert theorists claim that desert is the only purpose for
punishment in that sense that punishment = justice
• Other argue that punishment grounded on desert is essential to express
disapproval & Denunciation of the actions of the offender
• ‘Theory holds that society must register its disapproval of wrongful acts
& reaffirm the values violated by these acts’
• Therefore punishment proclaims that society will not tolerate the
conduct regardless of any further deterrent effect
Aims of Denunciation
• Maintenance of social cohesion/unity
• To reassure the public/society that the system works
• Serves to please the public/society to know that its rules which reflect
society’s values & goals are being enforced
• Educating the public by reaffirming social values & punishing those
who violate the law
UNIT 16 - Sentencing
Principles
Lecture
Process of sentencing & Punishment
• It is in imposing the different types of punishment that the sentencing
principles merge & are employed.
• After a successful prosecution & conviction of the accused person the
next phase that follows is sentencing & punishing the convicted
person.
• The process of sentencing & punishing through related are two
different processes.
• When an accused person is found guilty, the sentencing phrase comes
into play
• Court is vested with the task of deciding on an appropriate sentence
• In session will consider the sentencing principles that influence the
decision of the court when making the determination of assessing the
appropriate punishment to impose.
Sentencing I
• A sentence is a measure imposed by the Court on an accused who is
found guilty of an offence…..it is a criminal sanction that is imposed
by the court on a convicted defendant (Glick 1995: 463)
• It thus concludes the trial process in court
• If the offender is sent to prison then the important question would be
to determine how long offender should be behind bars
• PC not only created offences but also includes details of certain
punishments which are to be imposed.
Sentencing II
• For minor offences courts have the power to grant an absolute or
conditional discharge (S41 PC Cap 87)
• Courts also have the discretion to impose fine as opposed to
imprisonment
• Amount of Fine to be imposed may either be fixed by the legislature
or courts may impose fine as seen fit under the circumstances.
• In serious offences such as theft or burglary convicted persons may
be sentenced to imprisonment
• The length of imprisonment will be determined by the serious of the
offence committed
• In determining the length of sentence, crt may take into account
mitigating factors or extenuating circumstances.
• Under s.24 PC Courts are vested with the powers to impose different
types of punishments
Powers of Criminal Courts in Zambia to
Inflict Punishment
• S24. PC - The following punishments may be inflicted by a court:
• death;
• imprisonment or an order for community service;
• fine;
• forfeiture;
• payment of compensation;
• finding security to keep the peace and be of good behaviour, or to come up
for judgment;
• deportation;
• any other punishment provided by this Code or by any other law.
Sentence of Death
• Court can impose a sentence of death in cases where under the PC
death is mandatory
• Mandatory sentence of death - offences under S43(1) Treason, &
S294(2) Aggravated Robbery with firearms
• General rule - Sentencer has no choice but to impose the term stated
• Exception - Under s.25 persons below 18/pregnant women cannot be
sentenced to death
• If it is the death sentence imposed person is hanged by the neck until
death s. 25
Imprisonment-I
• Can be with or without hard labour
• Unless the law prescribes that imprisonment without hard labour be
imposed. (s.26)
• Examples of provisions where convicted persons are liable to life
imprisonment; Rape or attempted rape SS133,4, manslaughter s.202
• However there is discretion imposed with the sentencer to determine
sentence that seems fit- Person liable to imprisonment for life can be
sentenced to a shorter term (s.26 (2).
• Persons convicted of a felony may be sentenced to pay a fine in
additional to imprisonment exception manslaughter (s.26(3).
• Person convicted of manslaughter or a misdemeanour
• Is punishable by a fine only as opposed to imprisonment (s26(4).
Imprisonment- II
• At times the legislature controls the discretion of the court by
imposing minimum & maximum term for convicted persons this is
common in relation to sexual offences & aggravated assault with
intent to steal (S.295).
• There are certain provisions where the legislature does not stipulate
imprisonment term to be imposed
• E.g. offence of Aiding Soldier or Police in Acts of Mutiny S.49
• In such instances the principle of indeterminacy in sentencing is
preserved giving judges freedom to exercise judicial discretion
without legislative interference
Imprisonment- III
• Imprisonment is the most popular type of incarceration of adults
under the PC
• Shortest prison sentences would be for those who commit minor
offences such as common assault
• Longer prison sentences are preserved for those who commit serious
offences such as rape, murder.
• Justification for imposing longer sentences is deterrence & to put
away dangerous people who cause harm to the community
• Imprisonment has a deterrent effect on convicted persons & potential
offenders ( based on educative deterrence & rehabilitation theories.
Shortcomings of Imprisonment
• Despite improvement serving the interest of the public by isolating
the most dangerous people it is not cheap
• It is expensive both substantially & psychologically
• Loss of productive capacity of the prisoners
• Long term stigmatisation leading to difficulties of re-integration within
community
• As a result tendency for former convicts to develop relapses to
reoffend.
• Led to explanation for the increasing prison population in Zambia
Suspended Sentence
• S24 PC- Crts are empowered to inflict
• ‘any other punishment provided by this Code or by any other law’
• On this basis Crt can sentence someone to a Suspended sentence.
• This is where the punishment applied by a crt on the accused
convicted of the crime is not enforced (is suspended) if the defendant
performs certain services – such as staying out of trouble.
• Should the sentenced party fail to follow these requirements, then
the suspended sentence may be enforced
• The implication is that the person can only be expected to serve
sentence if they violate the terms of the suspended sentence.
Relevance of Suspended Sentence (SS)
• Massissani v. The People (1977) ZR 234,
• Court when making a determination of whether to pass a suspension
sentence or not :
• Will lead to causing danger to the public as offender would have been left
at large- On that basis SS is not allowed.
• If suspension will provide a deterrence

• The function of suspended sentence is intended to encourage an offender

to behave well in future -Mbanga v. The People (1973) ZR 186.
• See - The People V Jackson Chishika (1971) Z.R. 142 (H.C.)
Probation (Conditional Discharge)
• Offender who has been convicted is discharged but is conditional
upon the offender not committing an offence within 12 months (S.41
PC, Cap 87)
• Implication of Probation sentence should offender commit another
offence within the period specified
• Then offender would be liable to be sentenced to the original offence
as well as the subsequent one.
• Probation is intended to facilitate offenders back into the community
• In the process reduce the financial burdens on the state
• In Zambia the use of probation is governed by the Probation of
Offenders Act, (POA) Cap 93
• S.3 of the POA stipulates actions that Courts are authorised to when
making a probation order in relation to an offender of any act.
Community Sentence - I
• Community sentences are different from community service penalties
which require the offenders to serve in the community
• They are similar to sentences of imprisonment the differences lies in the
object
• Features of Community sentence
• Offender is not confined in prison but is confined in the community
• However offender is required to comply with certain requirements set
by the court as to behaviour
• Compliance is monitored thus supervised & may be enforced if
necessary
Community Sentence - II
• Community sentences are not punitive in nature
• Thus not intended to punish the offender but requires cooperation of the
offender if the offender is to avoid a custodial sentence
• The success of community sentences lies in the capacity of supervisors to
gain the confidence of the offender & persuade the offender that what they
are doing thus community sentence is good for them & community at large
• The most prominent community sentences are as follows;
• Community Rehabilitation Order – require offender to interact with
probation services who are intended to supervise the offender in activities
such as discussion groups, counselling sessions etc.
Community Sentence - III
• Community Punishment Order – requires the offender to undertake a
certain number of unpaid work for the benefit of the community e.g.
sweeping or mopping etc.
• Drug treatment & testing Orders- requires the offender to undergo
treatment in relation to drug problems, supported by regular drug testing.
• Community sentences are slowing being introduced & employed in Africa.
• Progress on community sentences has been slow in Zambia due to lack of
finances & qualified personnel
• If properly managed community may contribute to reducing the prison
population in Zambia
Fine- S28 – PC Cap 87
• A convicted offender may be fined for that offence (except cases of
murder or treason)
• Factors sentencer taken into consideration;
• The seriousness of the offence
• The ability of the offender to pay.
• It is pointless to fine someone who is unemployed ( Kalyombwe v. The
People (1978) ZR 294.
Fine - II
• The tendency is to impose an imprisonment for failure for payment of
fines without taking into consideration the financial conditions of the
offender (defaulter)
• S310 Criminal Procedure Code provides that where a person
sentenced to a fine defaults in the payment of the fine. Person is to
be allowed time to pay the fine.
• However note that the person can be committed to prison for non
payment.
• Whereas those who are dangerous & sentenced to payments of
fines would pay & be let loose into the community where they
would continue their normal way of life
• There is a failure of the criminal justice system of been unable
to devise suitable alternative punishment for those who cannot
pay fines imposed by courts.
16.5 Pardon - I
• President is vested with the power of pardon as conferred upon
the President
• To exercise the power of pardon is refer to as Prerogative of
Mercy
• Presidential prerogative cannot be subjected to review by the
courts of law
• Neither is it subject to legislative intervention but by amendment
• No convicted person can claim a right to be pardoned
Pardon - II
• The process of exercising the power of pardon can be undertaken
following the provisions as set out under the constitution
• President’s advisory committee can advise President on which
prisoner is to be pardon
• The President on his own volition may direct the advisory committee
on which prisoners to consider a selected number of convicted
persons
• Or the institution where a convicted persons are confined can make a
recommendation to the President regarding details of which persons
deserved to be pardoned.
Pardon - III
• Where the President wishes to invoke prerogative of mercy
towards a person sentenced to death, the power cannot be
exercised without referring the matter to the advisory committee
• Convicted person, family, friends or advocate may petition to
the president for pardon
• Petition for pardon must be supported by prison where
convicted person is confined & the advisory committee.
Pardon - IV
• However Zambia has no statutory procedures of informing
prisoners of the availability of pardons & how they can apply for
consideration.

• Prison wardens are not allowed to make applications for

pardons hence implication is that most prisoners who might be
eligible end up missing the opportunity
deportation
• To deport is to expel someone
• Can be within or outside the country
• Outside the country particularly common for foreign nations
• Within Zambia in cases of felony- HC may in addition to any
punishment imposed recommend to president that the person
charged be deported to a particular part of Zambia (S34).
Judges and sentencing I
• Based on Crt decisions Judges in most jurisdiction normally
apply a combination of punishment theories when sentencing
convicted person except where legislation imposes a fix
sentence.
• Existence of a fix sentence implies that trial Crt cannot exercise
its jurisdiction.
• Magistrates & Judges are vested with a wide discretion to
choose among the different types of punishment
Judges and sentencing II
• In some offences PC provides for the minimum & maximum penalties
still the court is vested with the freedom to determine the sentence &
level of penalties especially in lower Crts for most minor offences
• Other factors that influence the sentencer is the attitudes & beliefs.
• Judges impose different sentences for various reasons however there
are two types of Judges
• Those that base their sentencing on the deterrent theories and
• Retributive
• However lack of consistency- thus may lead to disproportionate &
disparity in sentencing
Judges and sentencing II
• In order to ensure consistency in sentencing the superior courts have
to come up with sentencing guidelines.
• Crts in Zambia have been following the five principles set out by Chief
law Justice Law in Nsokolo(1940) which were approved in
Chipata(1940) SJZ 189
Nsokolo (1940) 2 NRLR 85 - I
According to Chief Justice Law in determining the appropriate
sentence & the maximum penalty considered proportionate to
the offence committed.
1. The sentencer must take into consideration the nature &
intrinsic value of the matter involved in the offence
• Crt will take into account the nature of the offence i.e. in
Kabongo case (1974) ZR 83 – A had been convicted of
aggravated robbery – firearms were used during the
commission of the offence injuring two persons – SC held
imposing a minimum of 15 yrs imprisonment was insufficient
because the use of weapons meant that it did not come in the
lowest category of offences.
Nsokolo (1940) 2 NRLR 85 - II
2. History, character & previous criminal record of the
accused person –This is used to determine the severity of the
offence. E.g of questions that are asked in the determination;
Whether the offender is a first time offender or a persistent
offender?
- The norm is that superior crts turn to be lenient to first time
offenders by imposing less severe sentences.
In Phiri (1970) SC held that’ a lenient sentence will be Sufficient
to teach a previously honest man a lesson’
 Five principals of sentencing -I
• The persistent offender must be dealt with in a harsh manner to
prevent & deter them from re-offending.
• However this does not justify the imposing of an excessive
sentence than one which the offence warrants [Mwenya (1973)
ZR 6]
• Justin Mumbi Vs The People (2004) Z.R. 106 (S.C.)
3. The age of the offender needs to be taken into account
- For instance incarceration is not the ideal way of dealing with a
youthful offender [Mvula (1976) ZR 80]
 Five principals of sentencing -II
• Juvenile Act (cap 217 Laws of Zambia) makes special provision for sentencing
juveniles offenders for children – ( Child – persons under 16) may not be sentenced to
imprisonment to sentenced to reformatory in accordance s.72(1) & (3) of ACT
• s.72(2) J. Act persons over 16 but under 19 may also to sentence to reformatory.

4. The conduct of the accused at the trial especially if they plead guilty – saves
the crts time & those undertaking investigations-:
Noah Kambobe V The People (SCZ Judgment No. 13 of 2002) – first time offender,
pleaded guilty to manslaughter – 32 years with hard labour reduced to 10 years

5. An increase in the incidence of the particular crime may lead to Crts to impose
a severe penalties on the accused as a deterrent measure & to safe guide the
interest of the public as a whole – sole sikaonga case on child defilemement.
See also - Kalenga V The People (1968) Z.R. 165 (H.C.) -Frequency of offence in
community
Summary of Sentencing Criteria
1. The nature of offence
2. The Character & previous record of the offender
3. The level of maturity or age of offender
4. Conduct of accused during the trial/nature of plea.
5. The peculiar nature of the crime
Sentencing principles illustrated in case - law
• Plea of guilty- Needs to be unequivocal. Where the plea is not
clear the there is a chance that the Crt would request for the
accused to be retired. As was the case in The people v. Zulu
(1965) ZR 75 HC
• in the Zulu case the A plea of guilty was…’Yes I stole’ hence
was far from being an unequivocal plea of guilty to the offence
of burglary & theft
Transfer of sentencing
• Where a lower Crt feels that a more severe sentence should be imposed
they would transfer the case to a higher Crt for sentencing.
• E.g. The People v Phiri (1967) ZR 180 HC
• A having been convicted of rape by a subordinate Crt- Admitted five
previous convictions all for housebreaking & theft
• Previously he had been placed on probation & released as a juvenile on
licence
• Present offence was committed during the time when the A has been
released on licence.
• Subordinate Crt decided to transfer the case to the HC due to the
seriousness of the offence hence probation had not worked for the A.
• Look at the following on sentencing principles:
• Francis Chanda V The People (1971) Z.R. 32 (C.A.)
• Noah Kambobe V The People. SCZ Judgment No. 13 of 2002
• Francis Mayaba V The People S.C.Z. JUDGMENT NO. 5
OF1999