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Principles and Cases in Criminal law

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Ghana Legal System (FLAW 103)

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CRIMINAL

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PRINCIPLES of LEGALITY The principle is encapsulated in the Latin maxim shortened to nullum crimen, nulla poena sine lege - No crime is committed and no punishment can be imposed without the act having been prohibited and the punishment having been prescribed by a law enacted before the act was committed

The maxim is divided into two parts; a. Nullum crimen sine lege An act or omission to act is only a crime if before the act or omission was committed, there was a law declaring the act or omission in question as a punishable offence. The impulse is that should no law be in existence before the act is committed or omitted then such action or omission cannot be construed as a crime 1. Article 19 (5) 2. Hassan v the State 3. Tsatsu Tsikata v The Republic

b. Nulla poena sine lege An act or omission to act is only a crime if the offence is defined and a specific penalty has been previously prescribed for that act or omission

  1. Article 19 (11)
  2. Martin Kpebu v AG
  3. Asamoah v The Republic
  4. Debrah v The Republic (behaving in a disrespectful and insulting manner to a chief)

BURDEN of PROOF The burden of proof is beyond reasonable doubt

  1. Sections 11 & 13(1) of the Evidence Act 1975 However, it is not every doubt in the case for the prosecution that should lead to acquittal of the accused
  2. Oteng v The State
  3. Miller v Minister of Pensions per Lord Denning

THE RULE AGAINST DOUBLE JEOPARDY This has to do with that no man should be punished twice for the same offence such that once a person has been tried for an offence, he cannot be tried again for an offence with similar facts whether it ended in his acquittal or conviction. He must thus plead Autre fois acquit or Autre fois convict should such an issue pop up.

  1. Article 19(7)
  2. Section 9 of Act 29
  3. Hassan v The State
  4. Section 113 of Act 30. NB; Let us however note that a discontinuance, hang jury or an entry of a nolle prosequi is not a final verdict. NB: Mistake of the law is not an excuse, but mistake of fact

would be a defence 1. Section 29 of Act 29 2. Nyameneba & others v The State

Exceptions to the Rule against Double Jeopardy a. Where the consequences of one’s act for which he had been charged, convicted or acquitted later brings about something which had not occurred or was not known to the court at the time he had been tried, acquitted or convicted during the 1st trial, then he may be tried again on the same facts. 1. Section 115 of Act 30

b. If on the same facts, the accused was tried at an inferior court, and there is another charge based on the same facts for which the inferior court did not have jurisdiction, an acquittal or conviction on those facts would not bar the prosecution from charging the accused again on those same facts but for a different charge before a superior court which has jurisdiction in that charge. 2. Section 116 of Act 30

c. An acquittal of a person for treason or high treason does not preclude the person from being charged again for another offence on the same facts 3. Article 19(8) of the 1992 Constitution

PUNISHMENT Punishment is what gives force to criminal law. The import beingthat a criminal law that does not ascribe a punishment for its breach

is not law at criminal at all. The modes of punishment are; a. Death b. Custodial sentences c. Non-custodial sentences Punishment as defined by Mensah Bonsu is a phenomenon that entails the infliction of suffering or some other unpleasant consequence by an agency in a position of authority on an offender for an offence, i. the doing of a prohibited act. We thus infer the elements of punishment from definition as;

Elements of Punishment a. The infliction of suffering or some other unpleasant consequence. b. The infliction of suffering must be by a deliberate act. c. It must be imposed by the act of another d. The person or agency imposing the punishment must be in a position of authority over the person punished. e. Suffering or unpleasantness must be imposed on one who has done a prohibited act. f. It is for the doing of a prohibited act that invokes

 Status of the accused 1. Gligah & Atiso v The Republic 2. Kwashie v R  Depriving criminals from enjoying the fruits of their labour.  Recovery of the subject matter.

Principles of

Criminal Liability

Physical Element

A crime is generally made up of two elements: the prohibited act or omission and the mental element. NB: As a general rule, the two elements must coincide in respect of the same event to complete the existence of a crime. It is not enough that a man has engaged in a prohibited act, the state of mind of the offender must be ascertained by the law before he can be punished for said act. The principle is captured by the Latin maxim “actus non reum facit nisi mens sit rea” the mere doing of an act does not constitute guilt unless the mind is also guilty. NB: The mental element (mens rea) of the accused must also be proved to be guilty beyond all reasonable doubt.

ACTUS REUS

The Actus Reus involves;  The prohibited positive act or  Omission

THE ACT

It must be proved that the act had a particular result or the particular result is as a result of the act. However, some criminal acts do not require evidence of any result for example perjury.

OMISSION

When an act is forbidden, an omission that brings about the same results may also be punished. For an omission to become a punishable offence, certain situations must be shown to exist; a. There must be a duty imposed on the person by law to conduct himself in a certain manner 1. Section 79(1) of Act 29 2. R v Senior b. There must be a contract 1. R v Lowe c. Where a special relationship exists like parent-child doctor- patient, master-apprentice 1. R v McDonald

d. The omission must be a voluntary act 1. Kilbride v Lakes

MENS REA

Simply means guilty mind in the Latin parlance.

TYPES OF MENS REA

1. INTENTION

The general rule is that person is deemed to intend the natural and probable consequence of his or her act 1. Section 11(3) of Act 29, 2. R v Harvey

TYPES OF INTENT

a. Direct intent When a person does an act that he/she desires to achieve a particular effect, then that effect, if it results from the act, is intended even if he did not believe that the desired result was probable. 1. Section 11(1) of Act 29 2. Odupong v R Merely initiating a fight, does not show an intention to cause death 3. Sene & another v The Republic

b. Oblique intent The foreseeable indirect consequence of a person’s act. The result may be undesirable but if it is foreseeable, then it is an oblique intent. 1. Section 11(2) of Act 29 2. R v Quaye (Jack Toller) 3. R v Idiong

c. Indeterminate (general) intent An accused person can be held to have formed the mens rea to cause harm to a particular person if there is evidence that the person formed such an intention in relation to a general group of which the victim was a member. Since the intention is indeterminate in respect of who would be harmed, the fact of injury to any member of the group would be held to have been the result desired by the person who did the act in question 1. Section 11(4) of Act 29 2. R v Gyamfi 3. R v Ahenkora & Badu,

case, he or she had no reason to expect that the consequences
of the act would be such as occurred
4. Serechi v The State
5. DPP v Smith

2. NEGLIGENCE;

A person causes an event negligently if, without intending to cause the event, he causes it by a voluntary act, done without such skill and care as are reasonably necessary under the circumstances. This means that the act must have been done voluntarily, but without any intention of causing that event. Such absence of intention may be established in two ways:  Either that the actor did not really consider the result of that act before engaging in it, or  Because the person undertook an activity which he or she was not competent enough to do or which was not done with the required competence. The law considers it a punishable act to engage in an activity without averting one's mind to the dangers that the particular activity presents or without being in possession of the requisite skills, or exhibiting the requisite competence. Therefore, not taking enough care when doing an act, or not knowing how to do it properly, is the prohibited state of mind or "guilty mind" that is punished as “negligence." On account of this, negligence is punishable when harm occurs because people ought not to embark on dangerous activities unless they have taken necessary care, or possess the requisite skills. NB: The Negligence being discussed here falls under the lower degree of negligence (negligence simpliciter) 1. Section 12 of Act 29 A person who negligently and unlawfully causes harm to another person commits a misdemeanor 2. Section 72 of Act 29 NB: However, when death is caused by a negligent act, then such act is punishable as manslaughter only when the act amounts to a reckless disregard for human life. 3. R v Mensah 4. State v Tsiba 5. R v Kwaku Awuno

3. RECKLESSNESS

Recklessness is a type of negligence which amounts to a wanton disregard for human life. The concept has two denotations:  Either doing an act which amounts to the taking of an

unjustified risk

  1. R v Adekura  Engaging in conduct which involves the taking of an unjustified risk even though the actor does not know of the risk
  2. DPP v Smith. NB: The test of what constitutes recklessness is an objective one: "Would a reasonable person in the position of the accused have been conscious of the risk?" So, we have been asked to read on objective and subjective test of recklessness. With objective test, the principle applies that one can never demand more from an accused than that which is reasonable, and reasonable in this context means that which can be expected of the ordinary, average person in the particular circumstances. The ethics of judging by subjective standard on the other hand looks at the intention from the standpoint of the accused himself with all his defects as said in R v Adekura, is what is stipulated by Section 11(3) of Act 29

4. KNOWLEDGE

Act 29 does not specifically provide for the meaning of "Knowledge" but the requirement of guilty knowledge as mens rea is common in many of the provisions of the Act, e. Section 25. Knowledge is an acquaintance with facts or truth or a state of knowing or understanding information. Knowledge is in different types namely;  Actual; where the accused factually knows of the situation or has express information as to the factual state of affairs 1. Reg v Dant  Constructive; where the accused ought to have known the factual state of affairs. Where a person does not take steps to make inquiries because of an unwillingness to know the answer, i. a cultivated state of ignorance (willful blindness), the knowledge would be constructed from the circumstances  Imputed; where the agent of a person has knowledge of a set of facts, that knowledge is imputed on the person as he impliedly has said knowledge by the fact that his agent does.

EXCEPTIONS TO THE MENS REA RULE

 Strict liability crimes do not require a mens rea element, such as some traffic offences.  Vicarious liability – liability of one for the act of another e. Liability of an employer for the act of his employee

word ‘violence’ is normally understood such that the slightest contact can be sufficient for an action of battery to lie 1. Faulkner v Talbot No harm or injury need be caused

ELEMENTS OF BATTERY a. Ordinary touching in the cause of daily life is not battery b. The touching must be hostile c. The application of force need not be direct such that striking A and thereby causing injury to B might amount to a battery to B

  1. Haystead v Chief Constable of Derbyshire

ASSAULT and ACT 29 of

GHANA

Section 84 of Act 29 states: ‘whoever unlawfully assaults any person is guilty of a misdemeanor.’ Section 85 (1) gives the kinds of assault as;  Assault and battery  Assault without actual battery  Imprisonment.

a. ASSAULT AND BATTERY

Section 86 (1) of Act 29 defines assault and battery under Ghanaian law as “a person makes an assault and battery on another person, if without the other person’s consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person.” The ELEMENTS are thus;  forcible touch  forcible touch by accused or caused by accused  intention to cause harm, pain or fear or annoyance to another person  without the consent of the other person The definition of assault and battery in Section 86(1) of Act 29 is subject to the provisions of Section 86(2) of Act 29

b. Assault without Battery

Section 87(1) of Act 29 defines assault without battery as “a person makes an assault without actual battery on another person, if by an act apparently done in commencement of an assault and battery, the person intentionally puts the other person in fear of an instant assault and battery.” 1. Bruce-Konuah v The Republic. The application of Section 87(1) is subject to the following

provisions of Section 87(2)

c. Imprisonment

Section 88(1) of Act 29 defines imprisonment as “a person imprisons another person if, intentionally and without the other person’s consent, that person detains the other person in a particular place, of whatever extent or character and whether enclosed or not, or compels the other person to move to or be carried in a particular direction.” Assault by imprisonment simply means that the freedom of movement of the person imprisoned has been restricted 1. Asante v The Republic. Section 88(1) is subject to the provisions of Section 88 (2)

DEFENCES

Consent by victim is a defense in assault and battery however, consent is no defense if the force is likely to cause bodily harm 1. Comfort & another v The Republic

CAUSATION

For a person to be found culpable for a crime, there must be established a causal connection between the accused and the act or omission that constitutes the actus reus. In the absence of this link, a person cannot be held liable for the particular offence 1. Republic v Yeboah "To cause" means to bring about by one's own act or endeavor 2. Impress v Rees Causation, therefore, is the result of a person’s action or inaction – the law looks to see whether we can link the event with one’s act. We are concerned with the person who set the chain of events in motion to produce the final result. Causation is governed by Section 13, 64 and 81 of Act 29. NB: To establish the responsibility of the accused for the actus reus, it must be proved that the accused caused or contributed to cause the prohibited event. So, if no connection can be established between the act of the accused and the ensuing event, the accused will be exculpated from liability 3. Republic v Yeboah NB: Where multiple happenings occur resulting in one event, then it is the proximate occurrence that may be the determining factor. The essence of “causing” is the existence of a link between the act of the accused person and the resultant event that is criminal in nature.

FORMS OF CAUSATION

a. Factual Causation Determined by reference to the ‘sine qua non’ or ‘but for’ test. It is a precondition of proof of causation but is not sufficient, in

c. Intervening Events It must be stressed that there must be an unbroken chain of causation between the act of the accused and the event. Thus, although the accused may have set a chain of events in motion, if a factor or the act of another person interposes itself between the act of the accused and the ensuing event to break the chain of causation, the accused will not be held Liable. This is the concept of “novus actus interveniens”– a new intervening act/ Supervening event. The question is, at what point would an intervening event be deemed to have broken the chain of causation linking the act of the accused to the resulting event? The courts have variously referred to a cause that is an operating factor as “Efficient or effective cause" "Immediate Cause"; and "Causa Causans”. These appear in 3 forms; a. Act of a 3rd party b. The act of the victim c. An act of God Therefore, the chain of causation is broken when a third party or force intervenes to change the course of the train of events which the act of the accused set in motion, and this break then relieves the accused of criminal liability for that event 1. Section 13(4) of Act 29 NB: Where a resulting event is the same as what the result of the accused's act would have been, then the intervening event notwithstanding, the accused would still be liable 2. R v Smith NB: The intervening event relieves of liability only if it was something which the accused had no cause to take into account, such as the wrongful act of a third party, or an unforeseen event, and which changed the course of the train of events so substantially as to make the eventual result a completely different event from that which would have resulted from the act of the accused 3. Thabo Meli v Queen NB: Where the intervening event is an omission to act or omission to discharge a duty to avert an event then it would not operate to break the chain of causation 4. Section 13(5) of Act 29 NB: Also, where the chain of causation is broken, the accused would not be liable for the substantive offence, but may be liable for a lesser offence such as attempting to cause the event 5. Section 13(8) of Act 29

d. Take your victim as you find him The basic rule is to the effect that when a person causes injury to another and that other dies, the person is liable for the death even if there are supervening conditions such as the victim's state of health.

NB: If the death would have happened anyway because of the person's own physical condition that would not absolve the accused person from liability. The reason seems to be that all mortals must die one day in any case, but in their own time. Therefore to indicate that the person would have died anyway and within a short time even if the accused had not acted, is to attack the very basis of the offence of murder, since all mortals, whether or not they suffer injury at the hands of third parties, expect to die one day. Thus no one is allowed to "play God" and determine how long another may live by presuming to determine the life-span of that individual. 1. Section 64(a), (b) of Act 29 In the same vein, a person who ends another's life is not allowed to set up as a defence, the fact that other people, subjected to the same kind of treatment would not have died. In other words, "You take your victim as you find him, warts and all." This means that in using violence on other people one assumes the risk of the effect of the violence being greater than what was intended because of the victim's own condition 2. Twum v The Republic It would appear that, the person's condition could include the religious beliefs and other phobias which could affect the course of the injury 3. Section 64(c) of Act 29 4. R v Blaue The victim's own physical condition is thus not an intervening event capable of breaking the chain of causation between the act of the accused and the subsequent death of the victim.

e. Victim’s unreasonable behavior

A person's own acts would not be held to have broken the
chain of causation unless the person's own behavior
subsequent to the injury was unreasonable and amounted to a
wanton disregard for his own life.
1. Section 64(c) of Act 29
2. Reg v Holland
3. R v Blaue

f. Improper Medical Treatment Medical treatment to which a person is subjected after an injury has been caused by another rarely breaks the chain of causation. 1. Section 64(d) of Ac 29 The underlying philosophy is that any medical treatment administered subsequent to the defendant's wrongful conduct is intended to prevent the act which the defendant began from reaching

In such cases homicide would not be punished. Unlawful killing arises where it is actuated by an intention so to kill or it is done recklessly or through gross negligence. Homicide may be classified into two:  Murder  Manslaughter

MURDER In simple terms, murder is intentional killing through unlawfulharm.

In Ghana, Section 46 of Act 29 creates the offence of murder and ascribes the sanction attached to it as a liable to suffer death Section 47 of Act 29 defines the offence of murder as generally, intentionally causing the death of another person by an unlawful harm. Section 76 defines unlawful harm. Section 52 makes a list of circumstances under which intentional killing may be reduced to manslaughter only.

ELEMENTS OF MURDER For the offence of murder to be established the prosecution must prove; i. The victim is dead ii. The death of the victim was caused by unlawful harm iii. The unlawful harm was inflicted by the accused iv. The accused intentionally inflicted the unlawful harm to the deceased with the intention of killing him

a. Unlawful Harm Section 1 of Act 29 defines harm as any bodily hurt, disease or disorder, whether permanent or temporary. Section 76 defines unlawful harm as any harm which is caused intentionally or negligently without any of the justifications mentioned in Chapter 1 (Part II) of the Act. Thus, in proving the charge of murder it must be shown that the harm which the accused caused to the deceased does not fall within the justifications under our law

b. Cause of Death (Causation) It is essential to prove that the unlawful harm caused the death of the deceased (refer to notes on causation). Sections 13, 64, 81 The courts place great reliance on the evidence of medical witnesses. Although medical evidence is desirable, it is not essential and that where there is sufficient evidence from which a reasonable jury could infer that death was due directly or contributory to the act of the accused person, medical evidence may, by all means be dispensed with.

  1. State v Anane

c. Intention to cause Death (refer to notes on intention under mens rea) The next most important element is intention to cause death by the

unlawful harm. NB: For a crime to be committed, the actus reus and mens rea must coincide in that event to make the accused culpable. With murder, the mens rea is an intention to cause death by the infliction of the unlawful harm. The unlawful harm by the accused was inflicted with the intention that it should cause the death of the deceased. There must be proof of actual intention to kill on the part of the person charged. NB: In this case, we can refer to the notes on intention. But in all cases, to prove intention where the intention cannot be so apparent, we can make reference to Section 11(3) which is to the effect that a person is intends the reasonable and probable consequences of his act. 1. Serechi & anor v The State Even when it is apparent, we can still make reference to Section 11(3) since it’s a presumption which the accused would have to rebut anyway. The intention to kill may have been formed for minutes, hours, days or even years before the accused made contact with the person of the victim – this is what is described as “malice aforethought”. “Aforethought” does not necessarily mean premeditation, but it implies foresight that death would or might be caused 2. R v Doherty Malice must be express not implied. The intention to kill may also be a spontaneously conceived one. Both forms of intention, previously conceived and spontaneously conceived are enough to fix the accused with liability. Motive is the cause that moves people to induce a certain action. It is not an essential ingredient in proving murder, intention is. Proving intention is by the objective test. 3. Section 11(3) of Act 29 4. Adekura v The Republic Intention to kill can be inferred from the circumstances surrounding the event. These include;  The ferocity and the brutality with which the injuries which resulted in the death were inflicted by the accused on the body of the deceased 1. Arkoful v The State 2. R v Akatia

 An intention to kill may also be inferred from the nature of the instrument or weapon employed in the killing 1. Sene & anor v The Republic

 Intention to cause grievous bodily harm; Accused must have contemplated that death or grievous bodily harm was likely to be the result of his action 1. DPP v Smith NB: Still on the question of intent, where a person does an act in good faith, for the purposes of medical or surgical treatment, an

absence of this intention, the accused would be liable for manslaughter instead of murder.

CATEGORIES OF MANSLAUGHTER

a. Murder reduced to manslaughter by extenuating circumstances or other matter of partial excuse. b. Homicide caused by unlawful harm without intention to kill. c. Homicide caused by criminal negligence (Recklessness)

The 1st category is known as Voluntary Manslaughter whiles the 2nd and 3rd categories are known as Involuntary Manslaughter.

VOLUNTARY MANSLAUGHTER

a. Murder reduced to manslaughter Section 52 of Act 29 deals with intentional murder reduced to manslaughter under 4 extenuating factors where the accused would not be culpable for murder or attempt to murder;

i. Where the accused killed the victim under extreme Provocation from the deceased by which the accused was deprived of the power of self-control ii. Where the accused was justified in causing harm but exceeded the limit which is justified by law iii. Where the accused acted in the belief, in good faith and on reasonable ground of being under a legal duty to cause the death of the victim and which he did iv. Where a woman caused the death of a child under 12 months at the time when the balance of the mind of the mother was disturbed as a result of child birth or effect of lactation consequent on the birth of the child and had not fully recovered

PROVOCATION

In the English case of R v Duffy provocation was explained. Provocation is a partial defense in murder cases and where it is successfully proved, it reduces the conviction of murder to manslaughter. It does not exonerate the accused from being convicted for manslaughter.

ELEMENTS OF PROVOCATION

a. It must be an act by another person, not necessarily the

deceased b. The act must be such as would cause or in cases of unlawful assault and battery is likely to cause a sudden and temporary loss of self-control in the accused as to induce him to cause the death of the deceased c. The person provoked must have acted while under a sudden loss of self-control but not when he has regained the power of self-control, otherwise his act would amount to revenge which is inconsistent with provocation

SITUATIONS THAT MAY AMOUNT TO PROVOCATION

Section 53(a)-(d) of Act 29 gives a number of situations where matters may amount to extreme provocation. We shall now deal with them in seriatim;

a. Unlawful assault and battery on the accused The subsection explains that; “An unlawful assault and battery committed on the accused person by the other person, in an unlawful fight or otherwise, which is of a kind, in respect of its violence or by reason of accompanying words, gestures, or other circumstances of insult or aggravation, that is likely to deprive a person of ordinary character and in the circumstances in which the accused person was, of the power of self-control” 1. Section 53(a) of Act 29 2. Lamptey alias morocco v The Republic 3. Melfa v The Republic NB: Mere words cannot be justified under the section as constituting sufficient provocation. Insulting or abusive words alone are not sufficient to constitute provocation 4. Oduro v The State 5. Donkor v The Republic NB: However, it is not every unlawful assault and battery accompanied by abusive words would amount to provocation under the section. It must be likely to deprive a person of ordinary character the power of self-control 6. Sabbah v The Republic. 7. Donkor v The Republic 8. Bedder v DPP What is explained as “ordinary character” would depend on the general attribute of the people in the community to which the accused belongs in respect of the act meted out 9. Section 54(2) of Act 29 10. Rex v Igiri.

b. Unlawful fight Section 38 of Act 29 defines unlawful fight as every fight in which a

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Principles and Cases in Criminal law

Course: Ghana Legal System (FLAW 103)

71 Documents
Students shared 71 documents in this course

University: University of Ghana

Was this document helpful?
PRINCIPLES of LEGALITY
The principle is encapsulated in the Latin maxim shortened to
nullum crimen, nulla poena sine lege - No crime is committed
and no punishment can be imposed without the act having been
prohibited and the punishment having been prescribed by a law
enacted before the act was committed
The maxim is divided into two parts;
a. Nullum crimen sine lege
An act or omission to act is only a crime if before the act or
omission was committed, there was a law declaring the act or
omission in question as a punishable offence. The impulse is that
should no law be in existence before the act is committed or
omitted then such action or omission cannot be construed as a
crime
1. Article 19 (5)
2. Hassan v the State
3. Tsatsu Tsikata v The Republic
b. Nulla poena sine lege
An act or omission to act is only a crime if the offence is defined
and a specific penalty has been previously prescribed for that act
or omission
1. Article 19 (11)
2. Martin Kpebu v AG
3. Asamoah v The Republic
4. Debrah v The Republic (behaving in a disrespectful and insulting
manner to a chief)
BURDEN of PROOF
The burden of proof is beyond reasonable doubt
1. Sections 11 & 13(1) of the Evidence Act 1975
However, it is not every doubt in the case for the prosecution
that should lead to acquittal of the accused
2. Oteng v The State
3. Miller v Minister of Pensions per Lord Denning
THE RULE AGAINST DOUBLE JEOPARDY
This has to do with that no man should be punished twice for the
same offence such that once a person has been tried for an
offence, he cannot be tried again for an offence with similar facts
whether it ended in his acquittal or conviction.
He must thus plead Autre fois acquit or Autre fois convict should
such an issue pop up.
1. Article 19(7)
2. Section 9 of Act 29
3. Hassan v The State
4. Section 113 of Act 30.
NB; Let us however note that a discontinuance, hang jury or an
entry of a nolle prosequi is not a final verdict.
NB: Mistake of the law is not an excuse, but mistake of fact

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