Criminal Law Notes

CRIMINAL LAW
Crimes affect the society [in some way]
Criminal Law is more about wrongs (between the state and the individual)
Tort is about civil wrongs (between individuals)
In criminal law, the state takes charge of proceedings
Criminal law shapes the morals of the society i.e. even after de-criminalisation of the dress code,
the society still views(ed) mini-skirts in a negative way
Karl Max believes that after a time, the law will fall away (when there is no conflict that has to be
‘managed’)
WHY HAVE CRIMINAL LAW

1. Deterrence
• to prevent (targeting at both the offender and offended)
2. Retribution / punishment
• one of the oldest justification of the law
• Official condemnation of what people agreed
• Targets both offender and offended
• Has been described / criticized as backward
3. Rehabilitation – aims at reforming the offender

• used as a counter principle to the retribution principle
• offender must be isolated / separated from the society and then rehabilitated (reformed) and
then returned back to the society
• Advantage is that the state is not burdened to keep the offender longer than is necessary
• One disadvantage is that it requires knowledge of how to rehabilitate people/offenders
• Also requires knowledge of why people commit crimes
• There is a danger of overlooking the victims right (who want to have the offender
punished)
4. Restoration
• Aims at restoring the parties to the situation as it was before the offence was committed
• has the advantage of fewer custodial sentences
• Has been criticized that it cannot work where there is no victim (conspiracy)
• Difficult to quantify i.e. rape
SOURCES OF CRIMINAL LAW
1. Statutes :
- There are a number of statutes that have codified the rules and principles
of criminal law.
a. Penal Code (Chapter 701 of Laws of Malawi)
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• This is an act that establishes a code of criminal code
• There will be the prohibited act plus penalty
b. Criminal procedure and Evidence Code (Chapter 702 of Laws of Malawi)

• Provides the procedure to be followed when enforcing the law and matters of evidence
c. Corrupt Practices Act
d. Witchcraft Act
e. Road Traffic Act
f. Hijacking Act
g. Common Protection Act
R – Kamil and Yaghi [1971-72] ALRM 358

Kamil and Yaghi hijacked a plane flying from Salisbury to Johannesburg and caused it
to be landed at Chileka airport. They demanded to meet some two people and when
they failed demanded a $5million ransom. The hijack went wrong when all the
passengers managed to escape. Shots were then fired at the aircraft resulting in Yaghi
being shot in the leg. Both accused then surrendered. They were charged with
demanding property with menace with intent to steal the same, illegal possession of
explosives and wrongful confinement.
Held:
Both were convicted and sentenced to 5 years on the charge of demanding money with
menace, 5 years for the crime of wrongful confinement and 1 year for being found in
possession of explosives illegally. The sentences were to run consecutive
Note : Judge noted that consecutive sentences should not be passed for 2 offences
which arise from the same transaction but this rule can be departed from in exceptional
cases. The Judge held that this case was such.
The issue was the case was used as a deterring fact (i.e. harsh sentence to ensure
such an act was never repeated)
Offences are clearly defined and the elements to prove the offence ( prohibited act and mental state
and penalty to be imposed, including the principles and procedure to be followed.
Section 7 of the Penal Code : ignorance of the Law is no defence
- By having the law codified, it improves the quality of the law

- It also enhances consistency in both terminology and
- It gives people the opportunity to participate in the law making process.
2. Common Law
- Section 2 of the Penal Code recognizes recourse to the Common Law or offences under the
common law not provided in the code.
- But emphasis is on the Penal Code. In the UK, they moved ‘everything’ to the Penal Code.
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CONTEXTUALISING CRIMINAL LAW IN MALAWI
Law, like all human institutions are a period of the prevailing social, economic, historical, political
factors prevailing at a particular time and society
- Criminal law play a distributive function of resources

- It decides who should ‘stay-at-home’, who should go to prison etc
- It is a conservative force :- it tries to preserve existing power relations in a community
LAWS IN MALAWI
The Law in Malawi came as a by-product of colonialism (which was an economic and political
scheme)
The Colonial Government abolished all criminal laws and replaced them with (criminal) Laws
applicable in England in 1902 (as at 11 August 1902, Statutes of General Interpretation)
With time and coming in of independence, there came a need to review (and change) the law and
this review is in general what is used today except for a few i.e. Hijacking Act
Supremacy of this
Constitution
5. Any act of Government or any law that is inconsistent with the
provisions of this Constitution shall, to the extent of such
inconsistency, be invalid.
CONSTITUTIONAL LAW AND CRIMINAL LAW

Sections 5, 48(2) and 199 of the Constitution provide for Constitutional Supremacy.
Parliament 48. - 2. An Act of Parliament shall have primacy over other forms of law,
but shall be subject to the Constitution.
Status of this 199. This Constitution shall have the status as supreme law and there
Constitution
shall be no legal or political authority save as is provided by or under
this Constitution.
Some provisions in Criminal Law are ‘arguably’ not consistent with Constitutional principles i.e.
• Summary conviction of contempt of court
• Right to remain silent
Section 42(right to fair trial) provides the constitutional principles of how trials should be
conducted.
Arrest, detention 42. -

and fair trial
1. Every person who is detained, including every sentenced
prisoner, shall have the right -
a. to be informed of the reason for his or her detention promptly, and in a

language which he or she understands;
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b. to be detained under conditions consistent with human
dignity, which shall include at least the provision of
reading and writing materials, adequate nutrition and
medical treatment at the expense of the State;
c. to consult confidentially with a legal practitioner of his or

her choice, to be informed of this right promptly and,
where the interests of justice so require, to be provided
with the services of a legal practitioner by the State;
d. to be given the means and opportunity to communicate

with, and to be visited by, his or her spouse, partner,
next-of-kin, relative, religion counsellor and a medical
practitioner of his or her choice;
e. to challenge the lawfulness of his or her detention in

person or through a legal practitioner before a court of
law; and
f. to be released if such detention is unlawful.
2. Every person arrested for, or accused of, the alleged

commission of an offence shall, in addition to the rights which
he or she has as a detained person, have the right -
a. promptly to be informed, in a language which he or she

understands, that he or she has the right to remain silent
and to be warned of the consequences of making any
statement;
b. as soon as it is reasonably possible, but not later than 48

hours after the arrest, or if the period of 48 hours expires
outside ordinary court hours or on a day which is not a
court day, the first court day after such expiry, to be
brought before an independent and impartial court of law
and to be charged or to be informed of the reason for his
or her further detention, failing which he or she shall be
released;
c. not to be compelled to make a confession or admission

which could be used in evidence against him or her;
d. save in exceptional circumstances, to be segregated from

convicted persons and to be subject to separate treatment
appropriate to his or her status as an unconvicted
person;
e. to be released from detention, with or without bail unless

the interests of justice require otherwise;
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f. as an accused person, to a fair trial, which shall include
the right -
i. to public trial before an independent and impartial

court of law within a reasonable time after having
been charged;
ii. to be informed with sufficient particularity of the

charge;
iii. to be presumed innocent and to remain silent

during plea proceedings or trial and not to testify
during trial;
iv. to adduce and challenge evidence, and not to be a

compellable witness against himself or herself;
v. to be represented by a legal practitioner of his or her

choice or, where it is required in the interests of
justice, to be provided with legal representation at
the expense of the State, and to be informed of these
rights;
vi. not to be convicted of an offence in respect of any

act or omission which was not an offence at the time
when the act was committed or omitted to be done,
and not to be sentenced to a more severe
punishment than that which was applicable when
the offence was committed;
vii. not to be prosecuted again for a criminal act or

omission of which he or she has previously been
convicted or acquitted;
viii. to have recourse by way of appeal or review to a

higher court than the court of first instance;
ix. to be tried in a language which he or she

understands or, failing this, to have the proceedings
interpreted to him or her, at the expense of the
State, into a language which he or she understands;
and
x. to be sentenced within a reasonable time after

conviction;
a. in addition, if that person is a child, to treatment

consistent with the special needs of children, which shall
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include the right -
i. not to be sentenced to life imprisonment without

possibility of release;
ii. to be imprisoned only as a last resort and for the

shortest period of time;
iii. to be separated from adults when imprisoned,

unless it is considered to be in his or her best
interest not to do so, and to maintain contact with
his or her family through correspondence and visits;
iv. to be treated in a manner consistent with the

promotion of his or her sense of dignity and worth,
which reinforces respect for the rights and freedoms
of others;
v. to be treated in a manner which takes into account

his or her age and the desirability of promoting his
or her reintegration into society to assume a
constructive role; and
vi. to be dealt with in a form of legal proceedings that

reflects the vulnerability of children while fully
respecting human rights and legal safeguards.
Separation of Powers
The Courts [in the UK] had the inherent power under Common Law to declare certain activities
criminal.
Parliament should decide which conduct should be criminal and the courts must then apply (and
interpret the law)
When enforcing Criminal law, human rights and freedoms must be protected. There must be the
presumption of innocence.
NATURE OF CRIMINAL LIABILITY

- This involves a number of things. It involves particular conducted which Parliament has
regulated through criminal law.
- Essentially this involves a particular conduct being not only a private wrong but also a
public wrong. The wrongs should go beyond private and becoming public
- (The State should protect our persons and property and we in turn must habitually obey
them and pay tax)
- The wrongs must also be moral wrongs
- Mere public sentiments against a particular conduct does not make it criminal (just based
on perceptions or morals). Its only when parliament enacts such law that it becomes
criminal.
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There is no benchmark for distinguishing criminal or civil wrongs but there are certain principles.
1. Principle of individual autonomy

- at the core of criminal law
- derives from linearism that focuses the individual at the centre of criminal law and that
every individual has the insufficient capacity to make a free will
- It gives great importance to liberty and individual rights – everyone should be responsible
for his own actions and omissions
- Motive and intention. The law will only focus on the intention i.e.
A goes to steal medicine to give a sick mother.
Motive – to heal sick mother
Intention – to steal
(the motive is only used as an excuse)
2. Harm Principle
- The state is justified in criminalizing any conduct that causes harm to others or creates an
unacceptable risk that may cause harm to others
- There might be physical, economic harm, harm to feelings, moral harm
3. Minimalist Principle (Deminimis Principle)

- The state should not criminalise trifling / minor wrongs
- The state should take cognisance between criminal law and social control i.e.
Morality
Social convention
Peer pressure
- Minor wrongs should be left to other forms of social control
4. Morality and Criminal Law (Not a principle as such – more like the link between the
two)
- It has been said that criminal law can affect morality (as well as morality also affecting
criminal law)
Debate between Lord Devlin and Professor Hart

Morality should be measured according to the feelings of ordinary people (in the
streets)
Criminal law should go further to protect that morality
-
- If a conduct or behaviour invokes feelings of disgust and intolerance amongst society, that
conduct should be made criminal.
NATURE OF CRIMINAL LIABILITY
A. CRIMINALISING OMISSIONS
- Criminal law treats omissions differently from actions
- The duty imposed on the citizens is to do something
- Because of this, criminal law has limited the range of duties imposed to act – this is
because of the principle of individual responsibility
- This principle has attracted criticisms who argue that if the purpose of criminal law is to
protect property or life, why should the law not protect situation of danger?
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- It has been argued that the imposition of liability for an omission requires a great/heavy
onus than liability for an action
- It is also difficult to draft clear laws or steps that a citizen must take in order to avoid
ability
- Therefore if the law is vague, the citizen will not be adequately informed of what he must
do to avoid liability
B. VICTIMLESS CRIMES
- This does not tally with the harm principle
i.e. conduct likely to cause breach of peace Criminal law treats omissions conspiracy
to beat someone who dies previously
- It requires a heavy burden/onus to justify.
C. CRIMINAL LIABILITY DISTINGUISHED

- Criminal liability imposes penal sanctions
- It is the state that initiates proceedings and the state can discontinue the proceedings
- In civil law, it is the individual (victim) that initiates and can discontinue proceedings
- Remedies available in civil proceedings are different but no penal sanctions (purpose is to
compensate and put the parties to the ‘original’ position as if the offence was committed)
CLASSIFICATION OF CRIMINAL OFFENCES

1. Summary and indictable offences
2. Felonies and misdeaminors
1. SUMMARY AND INDICTABLE OFFENCES
Some offences can be tried both as summary and indictable offences i.e.. Contempt of
Court
Osman v R [1964-66] 3 ALRM 595

Osman was a barrister-at-law and was representing someone charged with robbery.
Osman was late coming from a lunch hour adjournment and offered a statement in
reply to a question from the magistrate upon which the magistrate asked him when he
had started representing his client. Osman intimated that if the court had good manners
it could have asked him why he was late. The court charged and convicted him of
contempt of court and fined him 25 pounds. The court brought in 3 witnesses but could
not allow Osman adjournment to brief his legal representative. Osman appealed
Held :
Where a judge purporting to try a case of contempt summarily takes evidence or
departs in any other way from summary procedure he loses his summary jurisdiction
and the accused must be given a normal trial before a different judge. Conviction
quashed
Contempt of court can therefore be a summary as well as indictable offence.
Phiri v Nawena, Crim Cause No. 1984 of 1986
2. FELONIES AND MISDEMEANORS

- Distinguishes between serious and minor crimes.
- Section 4 of the Penal Code defines felonies and misdemeanors
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Felony means an offence which is declared by law to be a felony or, if not declared to
be a misdemeanor, is punishable, without proof of previous conviction, with death, or
with imprisonment with hard labour for three years or more.
Misdemeanor means any offence which is not a felony
Offence is an act, attempt or omission punishable by law
ELEMENTS OF A CRIME
- Things that must be proved for a particular conduct to constitute to be called criminal in a
court of law
- From the elements come defences/excuses (the law only accept defences and not excuses)
-
- Main elements are :
- Mental element – mens rea
- Prohibited behaviour of conduct – actus reus
ACTUS REUS
- Comprises all elements that define a crime except those that define the mental element
(mental aspect)
i.e. anyone who wilfully fails to save property or life is guilty of an offence
Failing to save property or life would be the conduct
If this is shown then you look at the intention
- There are several classification (categories) of actus reus :

Result offences i.e. any person who wilfully … causes death
Conduct offences i.e. driving under the influence of alcohol
ELEMENTS OF ACTUS REUS

The prohibited behaviour or conduct may take different forms :
- It may be an act that is prohibited or
- It may be an omission that is prohibited or
- It may be a state of affairs or a situation or
- It may be possession
AN ACT
- A specific act is prohibited
- The act may be specified as a wrongful act or sometimes the act itself might be prohibited
-
- Section 132 of the Penal Code :
Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with
her consent if the consent is obtained by force or means or intimidation of any kind, or by fear of
bodily harm, or by means of false representations as to the nature of the act, or in the case of a
married woman, by personating her husband, shall be guilty of the felony termed rape
- Section 115 provides that :

Any person who, being in lawful custody, escapes from such custody, shall be guilty of a
misdemeanor.
- In cases where the act itself may not be unlawful, the Court may take into consideration the
intention i.e.
Escaping from being beaten / bitten
-
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- Section 114
Any person ,who by force rescues or attempts to rescue from lawful custody any other person
a. if such last-named person is under sentence of death or imprisonment for life, or charged with an
offence punishable with death or imprisonment for life shall be guilty of a felony, and shall be
liable to imprisonment for life; and
b. if such other person is imprisoned on a charger or under sentence for any offence other than
those specified above, shall be guilty of a felony and shall be liable to imprisonment for seven
years; and
c. in any other case, shall be guilty of a misdemeanor
If the person rescued is in the custody of a private person, the offender must have notice of the fact
that the person rescued is in such custody
- Section 116
Any person who, having another person lawfully in his custody, intentionally or negligently permits
that other person to escape, shall be guilty of a misdemeanor
- Section 117
Any person who
a. aids a prisoner in escaping or attempting to escape from lawful custody; or
b. conveys anything or causes anything to be converted into a prison with intent to facilitate the
escape of a prisoner,
shall be guilty of a felony and shall be liable to imprisonment for seven years
Section 209 :
Any person who of malice aforethought causes the death of another person by an unlawful act or
omission shall be guilty of murder.
The rape would be a conduct crime whilst murder is a result crime.
In result crimes, causation is very important. There must be a link (causal link) between
the result and the action.
SOME KEY DISTINGUISHING POINTS BETWEEN ACTS AND OMISSIONS

There are instances where the clear intention of Parliament was to have an act as the actus
reus but sometimes Courts may hold an omission to be the actus reus
- Section 117
Any person who … (a). aids a prisoner in escaping or attempting to escape from lawful custody…
shall be guilty of a felony and shall be liable to imprisonment for seven years
Speck case [1977] 65 Cr Ap R 151
R v Miller [1983] 2AC 161

Miller went to live in an unoccupied house. One night he fell asleep without finishing
[& extinguishing] his cigarette and it dropped on the mattress and caught fire. He woke
up, saw the mattress smoulding but did nothing and merely moved to another room.
Fire broke out and destroyed property worth 800 pounds. Miller was charged with
arson and convicted. He appealed and the Court of Appeal dismissed it and certified
the question:
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“Whether the actus reus of the offence of arson is present when a defendant
accidentally starts a fire and thereafter, intending to destroy or damage property
belonging to another or being reckless as to whether any such property will be
destroyed or damaged, fails to take any steps to extinguish the fire or prevent
damage to such property by the fire”
Held :
Where the Defendant was initially unaware that he had done an act that in fact set in
train events which by the time he became aware of them would make it obvious to
anyone who troubled to give his mind to them that they presented a risk that property
belonging to another would be damaged. The defendant was guilty of the offence if
when he did become aware that the events in question had happened as a result of his
own act, he did not try to prevent or reduce the risk by his own efforts or if necessary
by calling the fire brigade and the reason being that he had not given any thought to the
possibility of there being such a risk or having recognised, he decided not to try to
prevent or reduce it.
Trial used Duty Theory whilst the Court of Appeal used the “continuing theory”
Per curiam
Lord Diplock
“The habit of lawyers of referring to the ‘actus reus’ suggestive as it is of action rather
than inaction is no doubt responsible for any erroneous notion that failure to act
cannot give rise to criminal liability [in English law]”
Russell on Crime
“The Law requires mens rea to be causative of actus reus”
Lord Diplock
“The analysis of crimes into result crimes and conduct crimes is not disputed, but is
irrelevant. It is the conduct causing the result which is penalised.”
Total Act rule
innocent act together with subsequent mens rea can be regarded in total as a guilty act.
This rule has been criticised as arbitrary and wrong in principle.
- Section 165
Any person who, being the parent or guardian or other person having the lawful care
or charge of any child of tender years and unable to provide for itself, refuses or
neglects (being able to do so) to provide sufficient food, clothes, bedding and other
necessaries for such child, so as thereby to injure the health of such child, shall be
guilty of a misdemeanor.
R v Instan (1893) QB 453
R v Downes (1875) QBD 25
STATE OF AFFAIRS (SITUATION LIABILITY)

In these offences, a person is made criminally liable even if the person did not do anything to
cause the state of affairs. i.e.
- being found in a place in a particular state
- being found drunk in a public place
- Sections 180 – Idle and disorderly persons

- Sections 183 – Nuisance by drunken persons
- Sections 184 – Rogues and vagabonds
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Larsonneur [1933] 97JP 206 / 149 LT 542
Winzar v Chief Constable of Kent [1983] The Times of 28th March
R v Pindeni [1964-66] 3 ALRM
What is clear is that criminalizing criminal affairs without taking into consideration those who
are forced into a particular state of affairs may cause an injustice.
POSSESSION
There are certain offences relating to being in possession of certain goods – so the prohibited
act is possessing something
- Section 4 of penal Code defines possession

Possession – be in possession of or have in possession includes not only having in one’s own
personal possession, but also knowingly having anything in the actual possession or custody of
any other person, or having anything in any place (whether belonging to, or occupied by oneself
or not) for the use or benefit of oneself or of any other person; and if there are two or more
persons and any one or more of them with the knowledge and consent of the rest has or have
anything in his or their custody or possession, it shall be deemed and taken to be in the custody
and possession of each and all of them
- Sections 313, 329, 374, 378, 385 provide possession offences

Section 313 – Persons found armed etc with intent to commit felony
Section 329 – Person having in possession property suspected of being stolen
Section 374 - Making or having in possession paper or implements of forgery
Section 378 – Possession of clippings or fillings of gold or silver etc
Section 385 –Possession of die used for purpose of making stamps
Much difficulties relating to possession have risen in drug cases – the question is if a person
can be said to have possession of something he is not aware of
Warner v Metropolitan Police Commissioner [1969] AC 265
Lewis [1988] 87 Cr Ap R 270
McNamara [1988] 87 Cr Ap R 246
Commentary by J C Smith – 1988 Criminal Law Review 517
R v Poll [1951] Cr Ap R 164
R v Chonde 3 ALRM 327

Chonde was charged with possessing goods on which duty had not been paid or proved
to have been paid and was convicted on his own plea The accused admitted that he had
bought these goods along the road. Goods were confiscated. His lorry which was
impounded was later given back by the HC as it felt the order was excessive.
Possession is about
- Physical control
- Knowledge even if mistaken as to content
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MENS REA
- Mental element required for the commission of an offence – guilty mind
- Incorporated in the Penal Code in Section 9
[Subject to the express provisions of this Code relating to negligent acts and omissions,] a
person is not criminally responsible for an act or omission which occurs independently of
the exercise of his will, or for an event which occurs by accident
The Section explains mens rea in 3 ways :

- a person is not liable to actions/omissions independent of the exercise of free will e.g.
insanity, sleep walking, automatism, drunken state or by accident
- This proceeds on the principle of individual responsibility
- The distinction between the intention and the motive- Criminal law looks at motive
indifferently and sometimes motives may be relevant e.g. in cases of self-defence
- Criminal Law is criticized for being designed to preserve the status quo. It is the poor
young males who are targeted. Rarely do the rich go to jails. Males are forced by the
society to cater for the family; they go stealing and the rich want to protect their wealth.
- Crime does not stop at doing the thing but also at attempting to do the thing with the
necessary mens rea.
- In crimes of strict liability, a person may be convicted even without a guilty mind.
- Section 9 of the Penal Code
Unless the intention to cause a particular result is expressly declared to be an element of
the offence constituted, in whole or part, by an act or omission, the result intended to be
caused by an act or omission is immaterial
Unless otherwise expressly declared, the motive by which a person is induced to do or omit
to do an act, or to form an intention, is immaterial so far as regards criminal
responsibility.
THE GUILTY MIND IS IN 3 FORMS

Intention
- In which case you intend to do something
- A person is taken to cause the result of his action unless the contrary is shown
- An intention is derived in voluntary or involuntary action where knowledge is very
important
- Intention should be distinguished from motive
R v Lufazema [1968-70] 4 ALRM 355

Accused was charged with murder. It was alleged that he had killed his grandfather
with an axe whilst asleep. Accused admitted and claimed that the deceased had caused
so many deaths and insanity in the family of the accused by occult means and had
indicated that the accused would be the next victim. Accused argued that the deceased
was not sleeping and had threatened him to be the next victim before slapping him (had
provoked him). The court considered possible defences of provocation and self-defence
with reference to the accused’s belief that the deceased had caused death. It also
considered if belief in witchcraft can be considered a reasonable belief and whether
such a belief is sufficient to establish insanity.
Held
• A belief in the efficacy of witchcraft or of threats based on witchcraft cannot per se
be a sufficient foundation for finding that the person concerned was suffering from
a disease of the mind
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• A continuous belief in a state of affairs i.e. that another is a wizard, which operates
until the moment when the killing takes place will not be sufficient to establish a
defence of provocation where there is no immediate provocation act.
• The deliberate killing of a person in self- defence can only be justified if the
conduct of the person killed led to the killer to believe that he was immediately
threatened with death or grievous harm.
• Accused convicted.
- Intention may be referred by the general language of the acts or through words like
intentionally
- Section 84 :
Any person who takes part in a fight in a public place shall be guilty of a misdemeanor and shall be
liable to imprisonment for one year.
To take part in a fight implies that you have intended.
- Such words as ‘wilfully’ are also used
Recklessness
- Here a person may not intend to cause harm but if he takes unjustifiable risk he may be
liable
- The test is whether such a risk is reasonable and prudent and which a reasonable man can
take
There are 2 types of recklessness :

- The first is provide for in the case of
R v Cunningham 41 CrAR 155
- The offender is aware of the unreasonable risk that you are taking in which case you are
criminally liable
- The second type is provided in the case of
R v Cadwell 73 CrAR
- The recklessness is extended from knowing the risk which you are taking to the second- you
are not aware but if you were reasonable and had given proper thought, you would see that
your action was reckless.
R v Church 49 CrAR
R v Bateman [1925] AllER
R v Beard [1920] AC 479
Elliot v R [1923] 2AllER
Negligence
- This is inadvertent taking of risks
- One fails to act in accordance with the proper standard of care
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- Section 246
Any person who in a manner so rash or negligent as to endanger human life or to be likely to
cause harm to any person
(a) drives any vehicle or rides on any public way or
(b) navigates, or takes part in the navigation or working of, any vessel; or
(c) does any act with fire or any combustible matter, or omits to take precautions against
any probable danger from any fire or any combustible matter in his possession; or
(d) Omits to take precautions against any probable danger from any animal in his
possession; or
(e) gives medical or surgical treatment to any person whom he has undertaken to treat; or
(f) dispenses, supplies or sells, administers, or gives away any medicine or poisonous or
dangerous matter; or
(g) does any act with respect to, or omits to take proper precautions against any probable
danger from, any machinery of which he is sorely or partly in charge ; or
(h) does any act with respect to, or omits to take proper precautions against any probable
danger from, any explosive in his possession; or
(i) does any act with respect to, omits to take proper precautions against any probable
danger from, any loaded firearm in his possession
shall be guilty of a misdemeanor
- The question is whether the accused fell below the standard of a reasonable man
- For one to be criminally liable, a high degree of negligence is required
R v Lamp [1967] 2QB 981
DPP v Smith [1969] AC 290
- Inadvertent Blamelessness
- In this case one sets without reasonable foresight of one’s act and it is a lower level of
criminal negligence, a person will not be liable
- In this case one the required mens rea
- Ulterior intent and basic intent

- Basic intent is where the defendant is taken to have intended the immediate results of his
acts
- Ulterior intent is when the mens rea of a defined crime requires some other intent besides
the one e.g. wounding to cause grievous bodily harm
- Ignorance of the law

- Provided in Section 7 of the Penal Code .
Ignorance of the law does not afford any excuse for any act or omission which would
otherwise constitute an offence unless knowledge of the law by the offender is expressly
declared to be an element of the offence.
- Section 10 provides for mistake of facts

A person who does or omits to do an act under an honest and reasonable, but mistaken,
belief in the existence of any state of things is not criminally responsible for the act or
omission to any greater extent than if the real state of things had been such as he believed
to exist.
The operation of this rule may be excluded by the express or implied provisions of the law
relating to the subject
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Criminal Law 15
- Section 8 provides that a claim in right negates liability
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.
CASES ON THE ACTUS REUS
Bratty v AG for Northern Ireland [1963] AC 386
R v Charlson [1955] All ER 859
R v Kemp [1956] All ER 249
R v Worthington [1935] AC 462
CRIMES OF STRICT LIABILITY

Criminal Equation
Crime = actus reus + men area (-defence)
Actus rea – prohibited conduct or behaviour

Mens rea – mental element – intention, recklessness, negligence
Defence – insanity, self defence, provocation (will depend on the case)
For crime of strict liability, there is no mens rea (no need for one to show intention). Crimes of
strict liability are also referred to as crimes of absolute liability.
There are a number of offences of Common Law said to be crimes of strict liability i.e..
blasphemy. This is an offence both under Common and statute law but it is a crime of strict
liability under Common law (only)
R v Lemon & Gay Newspapers [1979] AC 617
Court held that it was not necessary to prove intention but just the
publication itself
Another is Contempt of Court
R v Evening Standard Ltd [1954] AllER 1026
Another is Selling food unfit for human consumption
XX v YY
There is no need for a guilty mind (mens rea) or intention
___________________________________________________________________________
Criminal Law 16
STATUTORY OFFENCES OF STRICT LIABILITY
- In most cases, strict liability offences are statutory offences and mostly involving cases of
gullatory offences i.e. Selling expired liquor
- Regulatory offences do not in most cases require a guilty mind

- It is important to establish if a particular offence is one of strict liability
- The courts are called upon to find the intention of parliament especially if such intention is
clear
- The departure point is the presumption of the mens rea
-
Sherras v De Rutzen (1895) QB 198
Judge Wright :
Sweet v Parsley [1969] AllER 347
Court was of the view that strict liability depends on interpretation of the statute
The statutory element is also considered. Verbs importing a mental element are considered i.e.
- use
- permit
Msungama v R 2ALRM 498
The appellant was convicted for permitting a person (his employee) to drive a motor
vehicle whilst disqualified from driving. The appellant was not aware of this
disqualification. He appealed against his conviction.
Held :
Permitting a disqualified person to drive a motor vehicle is an offence of absolute
liability and may be committed even though the accused is unaware of the
disqualification
That an offence was committed unwittingly is an important factor in mitigation of
sentence.
Another way is through the use of adverbs i.e.

- wilfully
- knowingly
- intentionally
- Section 130
Any person who, with the deliberate intention of wounding the religious feelings of any other
person, writes any word, or person who, with like intentions, utters any word or makes any sound
in the hearing of any other person or makes any gesture or places any object in the sight of any
other person, shall be guilty of a misdemeanor and shall be liable to imprisonment for one year
Another way is the use of mens rea words i.e.

- intention
- reckless
- negligence etc
Candy v Le Cocq (1884) 13QBD 207
Sometimes, you look at the social context
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Criminal Law 17
a. Real or quasi-crimes
- Quasi-crimes are not crimes in strict sense but a penalty may be attached to a
particular conduct.
- They are not criminal in the real sense but they are prohibited under a penalty.
Strict liability is imposed in quasi-crimes as they do not involve a public wrong
element
b. A general or special prohibition

- It is general if it targets the general population or is one of general application
- It becomes a special prohibition if it targets a specific sector of the population or
targets a specific situation
- In most cases, courts ate ready to impose strict liability to cases of special
prohibition than to others
Sweet v Parsley [1969] AllER 347
Lim Chin Aik v R (1963) AC 160
c. Degree of Social danger

The greater the degree of social danger to the general public, the more likely the offence
will be taken of strict liability i.e.
- Selling expired drugs in a public place
- Driving a bus full of passengers which has no brakes / lights etc
- Polluting water (rivers)
- Section 3(i) of the Witchcraft Act
Nyuzi and Kudemera v R [1966-68] ALRM 249

Nyuzi was a witchdoctor. At the invitation of villagers in Mwanza who were suspicious
of the deaths of young children, Nyuzi held a trial by ordeal using a test by muabvi.
Kudemera was handed the muabvi to administer to 16 volunteers. 4 died and the rest
became ill. Nyuzi said the 4 were magicians. Nyuzi and Kudemera were charged with 2
counts ; (1) agreeing to hold a trial by ordeal contrary to S3(2) of witchcraft ordinance
and (2) directing, controlling and presiding at a trial by ordeal contrary to S3(1). Nyuzi
was convicted on both counts. Kudemera was acquitted on the first count and convicted
on the second. Both appealed.
Held :
• Since Kudemera was acquitted on the first count, then Nyuzi had to be acquitted
too i.e. where 2 persons are charged with conspiracy and one is acquitted, the other
may not be convicted – both must be convicted or both must be acquitted unless
charge is of conspiring with persons unknown.
• Charge for Kudemera on count 2 varied to taking part in a prohibited trial and
sentence varied from 5 years to 1 year.
• Appeal for Nyuzi on count 2 dismissed.
Cram J
“… The legislature could accept neither the explanation of the pre-scientific culture
nor a metaphysical explanation. What the legislature enacted in this dilemma was an
absolute statutory liability for performance of certain acts without proof of mens rea.
Moreover, it provided for both the recovery and the death of the victim, after ingestion
of muabvi by a two-tier punishment”
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Criminal Law 18
- Section 51 of the Penal Code – seditious offences
- Regulation 6 of Dangerous Drugs Regulations made under the Dangerous Drugs Act
R v Rose Chipole [1975-77] 8MLW 208

The defendant was charged with cultivating Indian hemp. She had an Indian hemp bush
growing in her garden among flowers and tomato plants. She had neither planted the
bush nor was she aware of what it was. At trail, the magistrate acquitted her on the
basis that ‘cultivation’ presupposed awareness on the part of the cultivator. He was
however unsure of his findings and referred the case to the High Court for review.
Held
The offence of cultivation of a plant from which a Part I drug is derived is an absolute
one, and all that needed to be proved was that the accused had bestowed labour and
attention on the land. Awareness of nature of the plant was not necessary once she
actually knew the plant was there.
- Sections 141, 124, 59 of Road Traffic Act
Macholowe v R
- Section 23 (i) of the Factories Act

- Section 106 of Public Health Act
- Section 55 of Meat and Meat Products Act
ARGUMENTS FOR STRICT LIABILITY OFFENCES

- Enhances primary function of the courts (law) in preventing prohibited acts as it is
easier to prove a crime without a mens rea
- Is in the interest of the public to punish those who have ‘caused’ a wrong
- Encourages general care and safety (people become more careful)
ARGUMENTS AGAINST
- There is danger of convicting innocent people
- It promotes more of the right of victims that the accused
PARTICIPATION IN A CRIME
- Suppose A hires B to kill C. B goes to D to get information about B. B goes to E to buy
weapon. After B kills C, F conceals B. All (A, C, D & E) will be charged with the killing
of B
- Section 21 of Penal Code

When an offence is committed, each of the following persons is deemed to have taken part in
committing the offence and to be guilty of the offence, and may be charged with actually
committing it, that is to say –
(b) Every person who actually does the act or makes the omission which constitutes the offence;
(c) Every person who does or omits to do any act for the purpose of enabling or aiding another
person to commit the offence;
(d) Every person who aids or abets another person in committing the offence
(e) Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged, with himself committing the offence or with counselling
or procuring its commission
A conviction of counselling or procuring the commission of an offence entails the same

consequences in all aspects as a conviction of committing the offence
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Criminal Law 19
Any person who procures another to do or omit to do any act of such a nature that if he had
himself done the act or made the omission the act or omission would have constituted an
offence on his part, is guilty of an offence of the same kind, and is liable to the same
punishment, as if he had himself done the act or made the omission; and he may be charged
with himself doing the act or making the omission.
- Mens rea + actus reus – elements of participation of crimes
PARTIES TO OFFENCES
- All people involved in commission are parties to a crime
- Distinctions between principals and accessories depend on role in commission of offence
PRINCIPAL
- People whose act falls within legal definition of the offence
ACCESSORY
- Referred as accomplice/secondary party
- Person who enables, aids, abates, counsels or procures the principal
- Not in every offence are there principal and accessory[ies]
- Both may be principals
- Does not follow that they will be treated differently [Section 21]
- All are deemed to have taken part – therefore charged with actually committing
PRINCIPALS
- Person who does prohibited act or makes omission which constitutes an offence
- [Person who actually kills]
- Also person whose conduct is immediate cause of actus reus – liability is straight forward
- One can still be principal ; even person not legally has brought about prohibited act
e.g. A supplying a gun to an infant, insane
A will be principal
Infant – absolute
Defence – innocent agent
A’s conduct is immediate cause of death
Butt case Cox 564

- Sometimes, the Doctrine of Innocent Agent is inapplicable because of nature of offences.
i.e. A sends B (infant) to steal money from mother C.
CASES OF RAPE
A (lady) counsels C (innocent agent) to have sex with B.
R v Cogan & R v Leak [1976] QB 217 / [1975] 2AllER 1059

Cogan was convicted of raping Mrs Leak. Leak was convicted of aiding and abetting
the rape. Leak undressed his wife, had sexual intercourse with her in presence of Cogan
and then had Cogan have sexual intercourse with her after which Leak also had
intercourse with her. She reported to the police. Cogan said that he believed that she
had given consent. Leak acknowledged his part and said that this was to get back at his
wife.. Both had been drinking. Both appealed to the Criminal Court of Appeal; Cogan
against his conviction (innocent agent?) as he believed she had given consent and Leak
against his conviction should Cogan be acquitted (since there would be no principal) as
well as the sentence.
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Criminal Law 20
Held :
Cogan’s appeal allowed – conviction quashed
Leak’s appeal dismissed
Lawton J :
“In the language of the law, the act of sexual intercourse without the wife’s consent
was the actus reus; it had been procured by Leak who had the appropriate mens rea,
namely his intention that Cogan should have sexual intercourse with her without her
consent. In our judgement, it is irrelevant that the man whom Leak procured to do the
physical act himself did not intend to have sexual intercourse with the wife without her
consent. Leak was using him as a means to procure a criminal purpose”
Cases and Judgements referred to

Hale C J (Hale – Pleas of the Crown Vol 11 p629)
“ tho in marriage she hath given up her body to her husband, she is not to be by him
prostituted to another”
Judge Chapman (R v Humphreys and Turner [1965] 3AllER 689 at 692)
“It would be anomalous if a person who admitted to a substantial part in the
perpetration of a misdemeanor as aider and abettor could not be convicted on his own
admission merely because the person alleged to have been aided and abetted was not
or could not be convicted”
- Where there is more than one principle – you have joint principals
Karima & others v R [1966-68] 4 ALRM 60 , Supreme Court of Appeal
Karima and others were charged with murder. As MYP Stewarts, they were said to
have murdered a suspected rebel. They appealed on the ground that the witness the
prosecution relied on was himself an accomplice and had had his case discontinued.
They also contended that the driver, though did not take part, must also be an
accomplice.
Held:
Southworth CJ
It is recognised practice that an accomplice who has been charged, either jointly
charged on an indictment with his co-accused or in the indictment though not under a
joint charge, or indeed has been charged though not brought to the state of an
indictment being brought against him shall not be called by the prosecution, except in
limited circumstances
R v Nedi [1966-68]4ALRM 39
referred to
The proposition that the prosecution cannot be permitted to can “an accomplice against
whom proceedings have been brought but not concluded by conviction or acquittal
cannot be supported by authority!
R v Mphekelere & Mphekelere [1966-68] ALRM 484

The defendants were charged with murder. The two and Laiton were riding on bikes at
night and were incensed when they passed a man who called them fools for shining
lights into his eyes – upon which the 2 defendants descended and beat up the man plus
his friend who was called by his wife to assist. The friend died. Laitoni who had tried
to restrain the two was not charged.
Held :
The defendants were convicted of manslaughter as there was some doubt as to whether
they intended to do grievous harm but they had a common purpose, the probable
consequence of which was that death would be caused.
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Criminal Law 21
Principles :
• All principals to assault with common purpose are guilty if death results. It is
immaterial who struck the fatal blow.
• Expression by one assailant to wish to stop assault is insufficient to sever him from
common intent – further act of dissociation necessary.
Bourne v R [1952] 36 Crim App 125

Bourne was convicted of aiding and abetting his wife to commit buggery with a dog.
Bourne sexually excited the animal and compelled his wife by duress to submit to the
animal having connection with her per vaginam. Bourne appealed against his
conviction.
Held :
The offence of buggery, whether with man or beast does not depend on consent but on
the commission of the particular act therefore conviction was right. Bourne was
properly indicted for being a principal in the second degree to the commission of the
crime of buggery
ENABLER
- Section 21 :
(a) Every person who actually does the act or makes the omission which constitutes the
offence; - PRINCIPAL
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another
person to commit the offence; - ENABLER
- i.e. assists in preparing prior to commissioning of offence i.e. leaving door –open
R v Chakana & Phiri 27 MLR 202
AIDER
- Section 21
(c) Every person who does or omits to do any act for the purpose of enabling or aiding
another person to commit the offence;
(d) Every person who aids or abets another person in committing the offence
- Aider is an accessory who gives help, support or assistance to the perpetuation or

commission of an offence.
- It is not necessary for the aider to be present when the offence is committed
Attorney General v Able and others [1984] 1QB 795
Attorney General sought a declaration that supply of a booklet by the Voluntary
Euthanasia Society titled ‘A guide to self-deliverance’ to a class of people known to
include or likely to include persons considering or intending to commit suicide
constituted an offence or attempted offence of aiding, abetting and counselling. The
book contained practical instructions for persons contemplating suicide. The society
said that the aim of the booklet was to overcome the fear of the process of dying.
Held : (refusing application)
There would indeed be circumstances where supply of the booklet would amount to an
offence but without proof of the necessary intent, it could not be said in advance that
any supply would be an offence and it was for a jury to decide in each case whether the
necessary facts had been proved.
Stands for the principle that presence is not required
___________________________________________________________________________
Criminal Law 22
- You do not have to show that there is a link between the action of the aider and the
commission of the offence.
- So you do not have to show that the aider actually helped/supported/assisted
- Once it has been shown that the accessory helped or might have helped the principal in any
way, there does not have to be a causal link between the accessory and the principal
offence (no need for causation)
Wilcox v Jeffrey [1951] 1AllER 464
A was convicted for having aided and abetted a foreign musician from the USA to
perform at a jazz concert . A was present when Immigration Authorities gave the
musician permission to land in the UK on condition that he would take up no
employment, paid or unpaid. A was aware of these conditions. A went and paid to enter
the concert. At an invitation, the musician obliged and performed (his saxophone). A
later wrote a laudatory commentary on the musician’s performance in a magazine
which he was owner and Managing Editor and also published photos. Magistrate court
convicted him that his presence was not accidental and the Magistrate found that his
presence gave encouragement to the musician. A appealed.
Held
Presence was not accidental. His presence and payment was an encouragement and he
also went there to get material for his paper. He did not boo or protest in any way to
show that what the musician was doing was illegal. He aided and abetted.
- A person can still be held to be an aider even if the principal is not aware of the assistance
being rendered i.e.
A want to kill B. C is a servant of B and is aware of this. C makes it easy for A to
kill C by drugging B without A being aware. A kills B (easily). C is an aider
although A was not aware of his assistance.
- Mere presence at a place is not enough to be a liability as an aider.

R v Coney (1882) 8QBD 534
Coney, Gilham and Tully were convicted for assault having participated as spectators
in an illegal prize fight and therefore of the offence of aiding and abetting. This was
after the Chairman [of the Jury] directed the jury to determine whether or not there was
a prize fight and that that those who partook as fighters or spectators were guilty of
assault if they were not casually passing by, but stayed at the place and in so doing
encouraged it by their presence although they did not do or say anything. It was in
evidence that Coney was hemmed in by the crowd and could not have got out if he had
wanted. Jury found them guilty of assault but added that it was due to direction of the
Chairman as they found that the defendants were not aiding or abetting.
In its opinion, The House of Lords, after being referred to by the Chairman of the
Quarter Sessions
Conviction must be quashed as the direction of the Chairman amount to this : That
mere presence of persons at a prize fight, unexplained is conclusive proof of intending
to encourage the fight, although they are not seen to do or say anything; [and decision
of the jury was in obedience to the direction of the chairman without exercising its own
judgement based on evidence as to encouraging or aiding and abetting the fight]
Cave J
“It may mean either that mere presence unexplained is evidence of encouragement and
so of guilt, or that mere presence unexplained is conclusive proof of encouragement
and so of guilt. If the former is the correct meaning, I concur in the law so laid down, if
the latter, I am unable to do so”
Principal of the case is that mere presence at a place is not enough (not conclusive
evidence) for aiding & abetting
___________________________________________________________________________
Criminal Law 23
- Prosecution must prove that the person had an intention to aid or the presence itself aided
R v Clarkson and others [1971] 1WLR 1402 / [1971] 3AllER 344

The defendants were serving as soldiers in Germany. They were convicted by a Court-
Marshal for aiding and abetting the raping of an 18 year old German girl in the
barracks. They had heard noises (of the rape) and went to the room (with others) where
the girl was raped 3 times. There was no evidence that they had touched the victim, or
done anything physical or uttered any word or any verbal encouragement or prevented
her to escape or prevent others from assisting her. They appealed.
Held
Mere presence of the appellants was not enough to prove that they had given
encouragement. It needed to be proved that they intended to give encouragement and
with the possibility that they may have been under the influence of alcohol, it was
possible they were without being aware that their presence was giving encouragement.
Mere intention is not enough; there must also be encouragement in fact.
Convictions quashed but for 3rd defendant, his appeal dismissed with regard to his
statement of participation.
Megan LJ
“It is not enough, then that the presence of the accused has, in fact given
encouragement. It must be proved that the accused intended to give encouragement,
that he wilfully encouraged.”
Smith v Reynolds et al [1986] CrLR 559
CONTROL PRINCIPLE
- Another point involves what is called the Control Principle.
- The law does not impose a duty to prevent a crime (as a general rule) – however property
owners are sometimes held liable for failure to prevent an offence being committed on their
property or premises and in their presence
- The law incorporates property owners as law enforcement agents
Tuck v Robnson [1970] 1WLR 741

Tuck was charged with for adding and abetting the consumption of drinks (liquor) after
hours. Tuck owned a bar and the law stated that no consumption of intoxicating liquor
to be supplied after 10:10 pm. He called ‘time’ at 11pm then ‘glasses-please’ at 11:05
but did not take steps to stop patrons until police arrived at 11:23. Tuck was convicted
and appealed
Held :
Tuck had full knowledge of the facts which constituted the offence and therefore lent
passive assistance to the commission of the offence by being present at the time and
not taking steps to enforce his right to eject customers.
Du Cros v Lambourne (1907) 1KB 40
- Similar recognition is also made of goods sellers :
National Coal Board v Gamble (1959) 1QB 11

NCB was charged with the offence of aiding and abetting. A driver of a lorry had
loaded more coal in his truck than what was allowed by the traffic authorities. This
overloading was noticed on the weighbridge of NCB. The driver was caught by police
and the owners of the truck convicted. Court held that NCB had aided and abetted by
___________________________________________________________________________
Criminal Law 24
providing a weight ticket even when NCB’s servant knew the truck was overloaded. It
was also in evidence that the one in charge of the weighing had drawn the attention of
the driver to the overloading but the driver said he would risk it. The servant therefore
went ahead to issue the weight ticket fully aware of the situation. NCB was therefore
convicted and appealed.
Held :
NCB was rightly convicted of aiding and abetting since
(i) sale was only complete after weight ticket was given
(ii) At the time of ticket being given, NCB was aware of the driver’s intention to
drive an overloaded vehicle
(iii) Completing the sale with knowledge of the intended illegality was aiding and
abetting the unlawful use of the lorry
Lord Devlin
“A person who supplies the instrument for a crime or anything essential to its
commission aids in the commission of it, and if he does so knowingly and with intent to
aid, he abets it as well and is therefore guilty of aiding and abetting.”
“Aiding and abetting is a crime that requires mens rea”
“Indifference to the result of the crime does not of itself negative abetting”
Other cases / judgements referred :

Lord Goddard (Ackroyds Air Travel Ltd v PPD [1950] 1AllER 933 at 936)
“A person could only be convicted – apart from some special exceptions – as an aider
and abettor if he knew all the circumstances which constituted the offence. Whether he
realized that those circumstances constituted an office was immaterial if he knew all
the circumstances and those circumstances constituted an offence … that was enough
to convict him of being an aider and abetter”
Humphreys J
“It must be shown that the unlawful act has been committed and therefore that the
offence has been committed, and further, that the person charged as an aider and
abetter was aware of the facts sufficiently to enable him to know that the act was
unlawful”
- The approach now is that the shopkeeper should only be made liable as an aider where it
was his intention to further the commission of an offence.
ABETTER
- Section 21
(c) Every person who aids or abets another person in committing the offence
- An aider is one who assists whilst an abetter is one who encourages or incites or instigates
another to commit an offence
- The abetting should be done during the actual commission of an offence
- Therefore for abetting, you have to be present
- There is no need for link for an aider but there is need for abetting
___________________________________________________________________________
Criminal Law 25
Attorney General’s Reference #1 of 1975
The defendant knowingly and surreptitiously laced a motorist’s drink shortly before the
motorist drove home. The motorist drove with an alcohol concentration in his blood
above limit and was convicted of the offence. The Defendant was charged with aiding,
abetting, counselling or procuring the commission of the motorist’s offence. He was
acquitted on a ruling of no case to answer. The Attorney General referred to the Court
of Appeal on the question whether the defendant was entitled to the ruling.
Held :
Since the lacing of the drink was surreptiously done so that the motorist was unaware
of what had happened and there was a causal link between the defendant’s action and
the offence by the motorist, the defendant procured the commission of the offence and
therefore there was a case to answer and the defendant was not entitled to the ruling.
Lord Widgery CJ
“ To procure means to produce by endeavour. You procure a thing by setting out to see
that it happens and taking the appropriate steps to produce that happening. […] there
are plenty of instances in which a person may be said to procure the commission of a
crime by another even though there is no sort of conspiracy between the two. […] you
cannot procure an offence unless there is a causal link between what you do and the
commission of the offence”
R v J F Alford Transport Ltd [1997] 2CrAR 326
- Mere presence does not constitute abetting / aiding
R v Coney
Gama & Nthala v R [1966-68] ALRM 528

Appellants were convicted of murder. The deceased was accused of witchcraft. A split
bamboo was tied around her neck and she was taken to the Youth League
‘headquarters’ (a clearing ) where she was eventually put on fire and died from the
wounds 4 days later. 13 people were arrested but 11 were acquitted for lack of
corroborative evidence. Gama was a District Chairman of the Youth League. Gama
was held to have been reasonably been expected to restrain League members and had
the power to do so. Nthala stated through a cautioned police statement that she killed
the deceased on orders of leaders of the youth league. The two appealed.
Held :
When two (or more) conspire to commit an assault and during the assault one of them
conceives a new intent and kills the victim, the other assailant who neither intended the
death nor took part in the act of killing will be guilty [of manslaughter only]. The same
will be for an accessory before the fact of the assault.
The fact that an accused person was voluntarily and purposely present at the
commission of an offence and offered no opposition to it, though he might reasonably
be expected to prevent it, and had the power to do so, may in some circumstances
amount to evidence of encouragement sufficient to justify a conviction for aiding and
abetting.
COUNSELLING AND PROCURING
- Section 21 of Penal Code

(d) Any person who counsels or procures any other person to commit the offence.
___________________________________________________________________________
Criminal Law 26
In the fourth case he may be charged, with himself committing the offence or with counselling
or procuring its commission
A conviction of counselling or procuring the commission of an offence entails the same
consequences in all aspects as a conviction of committing the offence
Any person who procures another to do or omit to do any act of such a nature that if he had
himself done the act or made the omission the act or omission would have constituted an
offence on his part, is guilty of an offence of the same kind, and is liable to the same
punishment, as if he had himself done the act or made the omission; and he may be charged
with himself doing the act or making the omission.
COUNSELLING
- Means inciting, advising or even giving information for the purpose of commission of an
offence
- This must be done before the actual commission of the offence (when it is done during the
commission it is abetting)
- There must be a positive act done by the counsellor as an encouragement to the perpetrator
- Just like aiding, there is no need for a causal link between the actual encouragement and
the commission of an offence
- Nothing to imply in the definition of counselling to show causation
R v Calheam [1985] WLR
- Even though there is no need for causation, the offence must first of all be committed
before the accessory can be ‘charged’
- Under Section 23
When [such] a person counsels another to commit an offence, and an offence is actually
committed after such counsel by the person to whom it is given, it is immaterial whether the
offence actually committed is the same as that counselled or a different one, or whether the
offence is committed in the way counselled or in a different way, provided in either case
that the facts constituting the offence actually committed are a probable consequence of
carrying out the counsel.
In either case the person who gave counsel is deemed to have counselled the other person
to commit the offence actually committed by him.
PROCURE
- To produce by endeavour.
- You are said to procure a thing if you take appropriate steps to ensure that the thing is done
i.e.
A hires B to kill C
A procures B. B is not an innocent agent
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Criminal Law 27
- There must be a causal link between what is done and the commission of the offence
A convinces B to commit an offence
A procures B
NEED FOR CONSENSUS

- For cases of aiding and procuring, there is no need to prove any consensus between the
parties :
Wilcox v Jeffrey
R v J F Alford
R v Coney
- As for abetting and counselling, there is need for consensus – there must be a meeting of
minds
- The very nature of the process of abetting and counselling requires a meeting of minds
between the principal and accessory[ies]
MENTAL ELEMENT OF ACCESSORIES

The General principle is :
- Requisite mental element is an intention to aid, abet, enable, procure, counsel another to
commit an offence
- As long as you have the intention to aid etc knowing very well that an offence will be
committed although the actual offence is not known or different
Lynch v DPP for Northern Ireland [1975] AC 653

Lynch was charged with aiding and abetting the killing of a police officer by 2 IRA
members. He was a principal in the second degree. He had driven three armed men to a
place where the policeman was stationed and afterwards he drove them away again.
Court held that he knew very well of the facts around him therefore his action
amounted to aiding and abetting. He was convicted. He appealed to the Court of
Appeal and his appeal was dismissed. He then appealed to the House of Lords.
Held : (allowing appeal)
Judge was erroneous in holding that defence of duress was not available in a charge of
murder – in fact it was open to a person accused as a principal in the 2nd degree to plead
duress
(Principal in the 2nd degree – aider and abetter)
Lynch would still have to prove good his defence. The court did not reverse decision.
National Coal Board v Gamble
Section 23 of the Penal Code
Gama case
- Mere negligence or recklessness is not enough to make one an accessory – it is the question
of having the intention to aid etc
- You need to have the knowledge of the circumstances constituting the offence or turning a
blind eye to a circumstance which is an element of the offence
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ACCESSORIES TO CRIMES OF STRICT LIABILITY
- As far as strict liability crimes are concerned, even though a mental element is not required
for the principal, for the accessory there is need for the prosecution to prove the mental
element (intention)
Bowker v Premier Drug Co. (1928) 1KB 217
KNOWLEDGE OF TYPE OF CRIME

- First principle applicable here is
i) If a person aids another to commit an offence of a particular type without actually
supplying details of the victim or in what manner the offence will be carried, you will
be convicted as an aider or an accessory to any offence committed of the type intended
R v Bainbridge [1959] 3AllER 200
DPP for Northern Ireland v Maxwell [1978] 3AllER 1140 / [1WLR 1350
ii) If there has been any substantial change from the agreed upon mode of conduct, the
abetter will not be liable unless he foresaw that the principal would react the way he did
Powell [1999] AC 1 / [1997] 4AllER 545
iii) An accessory will be held liable for any act or omission done by the principle in the
course of carrying out the common purpose
DOCTRINE OF TRANSFERABLE MALICE (INTENTION)

- A wants to kill B but kills C thinking it was B
- A is still liable – the malice is transferable
R v Hussain [1969] 2QB 567

Hussain was a merchant seaman. 10 packages of cannabis were found in his cabin
which he shared with 2 others. His defence was that the other 2 (engineer and
carpenter) had hidden the packages and threatened to cut his throat if he said anything
and promising him a reward if he kept silent. He was charged with 2 counts; 1. being
knowingly involved in fraudulent evasion of the prohibition against the importation of
cannabis and 2. unlawful possession of dangerous drugs. He said he had though that it
was brandy which was being smuggled (as opposed to illegal). He was convicted on
both counts. He appealed.
Held :
On count 1 : Appeal dismissed
Provided he knew that the packages were subject to a prohibition and had fraudulent
ends, it was not necessary that he should know the precise category of the goods in
question
On count 2 : appeal allowed
Verdict unsatisfactory as to the question whether he had consented.
Davies v DPP [1956] AC 378
R v Saunders & Archer Plawd 378 / English Reports 75 KB 706

Saunders wanted to marry his lover but was already married. Archer told him that the
best way was to kill the wife. Archer gave Sanders poison to kill the wife. Saunders
prepared the poison with (2 pieces of) apple. However the wife ate part and gave the
rest to a daughter. Saunders tried to verbally stop but was afraid of being held in
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Criminal Law 29
suspicion and therefore did nothing physical to stop it. The wife did not know. The
wife got sick but recovered. The daughter died.
Held :
Saunders convicted of murder since he had given the poison with an intent to murder
and death had followed from his act although it happened to another person. Wife was
not guilty as was ignorant.
[On Archer being an accessory, it was held that he was not as the ‘agreement’ was only
to kill the wife and Archer did not precisely procure her death. However the court did
not release this decision and Archer was kept in remand until he would ‘purchase’ his
pardon]
i.e.
If a intending to kill his wife using an apple and she being ignorant gives the apple to a
child against whom A never meant any harm and against his will and the child dies, A
is guilty of murder and poisoning but not the wife.
If A persuades B to poison C and B gives poison to C who eats part of it and gives the
rest to D who is killed by it; A is not accessory to the murder of D because it was not
the direct and immediate effect of the act done in pursuance of A’s command but
happened accidentally through the act of C.
However this position might be different in the Malawi scenario if one compares to the
Penal Code in Section 23
PRINCIPAL AS A DEFENCE NOT AVAILABLE TO ACCESSORY

The respective liabilities of principals and accessories may vary depending on circumstances of
offence i.e. the accessory may be convicted of a more serious offence
R v Bourne
DPP v K & C [1971] 1 CrApR 36
LIABILITY OF ACTS BEYOND THE COMMON DESIGN

(i) Same offence but different results
- This can happen where the intended result is obtained by a different mode of operation
i.e. death has occurred through drowning instead of poisoning
where the principal makes a mistake to the identity of the victim
In all these cases, the doctrine of transferred malice will be applicable – the rest of the
factors will be irrelevant
Baldessare [1930] 22 CrApR 70
(ii) Principal acts entirely different from contemplated acts

This can happen where the principle deliberately departs from the agreed mode of conduct
i.e. counselling to steal a car and principal hijacks a plane
Chain of causation must be broken
R v Anderson , R v Morris [1966] 2QB 111 / [1966] 2WLR 1195

Anderson and Morris were charged with the murder of Welch. Morris met Mrs
Anderson (a convicted prostitute) running away from Welch whom she claimed wanted
to strangle her (after taking him to her flat). Morris fought with Welch and took Mrs
Anderson home. Upon arriving and hearing of the incident, Anderson got angry, armed
___________________________________________________________________________
Criminal Law 30
himself with a knife and went with Morris and Mrs Anderson to Welch’s flat where
Welch was stabbed. Morris did not take part. His defence was that he did not know that
Anderson had a knife. The jury convicted Anderson for murder and Morris for
manslaughter. Morris appealed.
Held:
Where 2 people embarked on a joint enterprise, each was liable for the acts done in
pursuance of that joint enterprise including liability for unusual consequences if they
arose from the agreed joint enterprise, but that, if one of the adventurers went beyond
what had been tacitly agreed as part of the common enterprise, his co-adventurer was
not liable for the consequences of the unauthorised act. Appeal allowed and conviction
quashed.
Hui Chi-Ming [1992] 1AC 34
In a case where one of the parties departs and commits a more serious offence, what needs
to be proved is that the other parties could have contemplated that there was a real
possibility that one member may go beyond the joint enterprise and committed a more
serious offence.
What is the principle commits a lesser offence than agreed?
R v Howe at al [1987] AC 417

R v Howe , R v Bannister , R v Burke , R v Clarkson
Howe and Bannister were convicted on 3 counts of murder and conspiracy. They drove
with an intended victim to an isolated area where M killed him. On the second mission,
the appellants jointly strangled a victim. On the third occasion, the intended victim
escaped. They were indicted on 2 counts of murder and one of conspiracy to murder.
Their defence was that they feared that M would kill them if they did not do as
directed. Judge left the issue of duress to the jury for the first murder committed by M
and the conspiracy to murder but not on the count of murder where the victim was
strangled by the appellants. The appealed to the House of Lords.
In the second appeal, Burke and Clarkson were tried for murder for a man killed by
Burke. Burke’s defence was that he shot the victim out of fear that Clarkson would kill
him if he did not do so but that the gun went off accidentally. The judge directed the
jury that Burke could not rely on duress as a defence to the murder charge as he was
the actual killer and left to the jury to decide if the gun went off accidentally and if so,
then Bruce to be charged of manslaughter and if that was the verdict, Clarkson could at
most be convicted of that offence. Both were convicted of murder. They appealed to
the House of Lords.
Held :
• It was not a defence to a charge of murder that the accused had acted under
duress in order to protect his own life or that of his family
• Accordingly, the defence was not available to the person who actually killed the
victim and was also not available to those who participated in the murder as
principals in the second degree
• Therefore the appellants had been rightly convicted
• Where the Defendant procured or incited another to commit murder but that
person was convicted of manslaughter, the defendant could still be convicted of
murder of the victim. The judge was therefore wrong.
• DPP for Northern Ireland v Lynch overruled!
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Criminal Law 31
WITHDRAWAL OF COMMON DESIGN BY ACCESSORY
(Yet the principal proceeds to commit the/an offence)
As a matter of general principle, where a person counsels, procures, aids, abets another
person, it may be possible for the accessory to escape liability.
He should prove that he withdrew from the common enterprise – what constitutes
withdrawal depends on the facts of the case.
Mere repentance is not enough – you need to do more to show you have withdrawn from
the common enterprise.
Croft [1944] 1KB 285
What matters is effective withdrawal
R v Beccerra and Cooper [1975] 2 Cr App R 212 ?
The withdrawal must be timely (for it to be effective)
R v Grundy [1977] Cr law Rep 543
R v Mphekelere & Mphekelere
R v Whitefield [1984] 79 CrAppR 36

Whitefield had conspired with others to break into a flat next to his by way of his own
flat. He had informed the others that the flat was unoccupied. But he changed his mind
and subsequently told the other before the burglary took place and did not allow them
to use his flat. The burglars were arrested. He was convicted after changing his plea to
guilty as the Judge held that the appellant’s communication of withdrawal from the
common enterprise was insufficient to afford a defence. He appealed.
Held :
There was evidence, if the jury accepted it, of unequivocal notice of withdrawal. In
ruling as he did, the Judge made an error in law which resulted in change of plea.
Therefore since a change of plea founded on such an error could not stand, conviction
quashed. Appeal allowed.
Withdrawal must be voluntary
Where the offence has started being done, the onus (heavy) burden is on the one
withdrawing to prove so.
R v Rook [1983] 1WLR 1005
“A declared intent to withdraw from a conspiracy to dynamite a building is not

enough if a fuse has been set. One must step on the fuse.”
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Criminal Law 32
INSTIGATION FOR THE PURPOSE OF ENTRAPPING
Cases where police officers may act in a particular way for the purpose of getting
information or offenders – this is called entrapment.
As a general principle, law enforcement officers have no general licence to aid and abet –
no defence for entrapment.
Sang [1979] 69 Cr App R 282

Sang was indicted with conspiracy to utter counterfeit bank notes and with unlawful
possession of the same. He pleaded not guilty but on the trial judge’s ruling that even if
the offence had been instigated by an agent provocateur, he had no discretion to refuse
the prosecution to prove its case, sang pleaded guilty and was convicted. The Court of
Appeal dismissed his appeal and he appealed to the House of Lords :
Held :
There was no justification for the exercise of the judge’s discretion to exclude the
evidence, whether or not it had been obtained as a result of the activities of an agent
provocateur. Appeal dismissed.
Mullins (1848) 3 Cox cc 526

Davies and Powell were Government Agents working as spies. They infiltrated
(unknown to each other) certain meetings where a treasonable conspiracy was carried
on. The two and two other ‘accomplices’ gave evidence. Counsel for the accused
contended that evidence from the four needed to be corroborated.
Held :
A person employed by the Government to mix with conspirants and pretend to aid their
designs for the purpose of betraying them does not require corroboration as an
accomplice
Williams v DPP [1993-98] Cr App R 209
Articles by :
Ashworth – Defences of General Application.

The Law Commission Report Number 83.
Cambridge Law Journal of 1978, page 137
Smith J – Criminal liability of accessories.

113 Law Quarterly Review, 453
Sullivan G – Criminal Law Review of 1994, 252
Robertson G – Entrapment evidence; manna from heaven or fruit

from the poisoned tree.
Criminal Law Review of 1990, 780
Giles M – Criminal Law Review 1990, 383
Williams G – Complicity purpose and the draft code.

Criminal Law Review 1990
Lanham d – Drivers, control and accomplices.

Criminal Law Review 1982, 268
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Criminal Law 33
Nthala case
Kambwe v R MSCA Crim App Number 8 of 1985
Zgambo v R MSCA Crim App Number 20 of 1999
Malata v R MSCA Crim App Number 8 of 1985
Chimwala v R MSCA Crim App Number 5 of 2000
Fungula v R MSCA Crim App Number 242 of 2000
ACCESSORIES AFTER THE FACT
OFFENCES AGAINST THE PERSON

How criminal Law approaches behaviour or risks that causes risk to the person. Essentially
looking at behaviour that causes death or injury to a person i.e.
- Fatal like Murder and Manslaughter
- Non fatal injuries which includes assault
Apart from Treason, Murder is considered the most heinous of crimes. It is considered the most
serious because of its finality – there is no restitution.
Wilful and intentional causing of death is therefore considered the most serious.
The Penal Code in Section 209 criminalises causing death of another by unlawful act or omission
with malice aforethought.
Any person who of malice aforethought causes the death of another person by an unlawful act or
omission shall be guilty of murder.
The elements are :

- with malice aforethought
- causes death
- of another person
- by unlawful act or omission
AN ACT OR OMISSION
It is important for the Prosecution to prove that the accused did an act or an omission and this was
the cause – there must be a causal link between the death and the act or omission. Section 215
defines causing death. It is not only by an act or omission but it must be unlawful. The use of the
word unlawful helps to clear the ambit of murder cases of justified killings.
Airedale NHS Trust v Bland [1993] 1AllER 821
Our criminal law provides for situation where killing is justified. Self-defence is a defence for
murder.
CAUSING DEATH
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Criminal Law 34
The act or omission of the accused must cause death. There are specific principles for the elements
to prove murder.
- a person can be deemed to have caused death even if the accused’s act is not the direct
cause or the sole cause of death
- sometimes it has been said that all that is required is that the act of the accused must be a
substantive cause of death. This then means conduct that is minute is ignored. The de
minimis principle is used in Criminal Law to discount such issues.
CATO [1976] 62 Cr App R 41

Malcherek [1981] 2AllER 422
BUT FOR TEST

An act is said to be the cause of a result if but for the act, the result would not have occurred.
Lord Denning in Cork v Kirby Maclean Ltd (CA 1952],

“If the damage would not have happened but for a particular fault, then that fault is the
cause of the damage; if it would have happened just the same, fault or no fault, the fault
is not the cause of the damage”
- However this can cause a lot of causative links [chain of events] and will not solve the
problem as is apparent where two simultaneous acts are the cause such that even if we use
the but for test, we still settle for the substantive cause.
Cheshire [1991] 1AllER 844
Section 215 : A person is deemed to have caused the death of another person although his act is not the
immediate or not the sole cause of death in any of the following cases –
(a) if he inflicts bodily injury on another person in consequence of which that other person
undergoes surgical or medical treatment which causes death. In this case it is immaterial
whether the treatment was proper or mistaken, if it was employed in good faith and with
common knowledge and skill; but the person inflicting the injury is not deemed to have
caused the death if the treatment which was its immediate cause was not employed in good
faith or was so employed without common knowledge or skill
Roberts [1971] 56 Cr Ap 95
Blaur [1975] 61 Cr App R 271
For a person who has a special condition (sickness), the principle is :

- the accused must take their victims the way they found them – thin-skull principle
- the special conditions cannot be used a defence
- You will be made responsible even if the matter has been made worse by the condition of
the victim.
- If you know a special condition, you will be made responsible even though you do not
directly cause the death i.e. locking a sick child in a house where a normal child would
have survived or escaped
Roberts [1971]
Smith [1959] 2QB 35
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Criminal Law 35
Jordan [1956] Cr Ap R 152
R v Banda [SJ] HC 5ALRM 96
Pagett 76 Cr Ap R 279
At Common Law, there is a requirement that death must occur within a year and a day [but not
applicable in Malawi]
INCHOATE CRIMES
These are the 3 offences of incitement, conspiracy and attempt. Inchoate means ‘just begun,
incipient; in an initial or early stage.
CONSPIRACY
Sections 404, 405 and 406 of the Penal Code
An agreement is the basic element in a conspiracy. Essentially it is an agreement to commit an

offence.
s.404
Any person who conspires with another to commit any felony, or to do any act in any part of the
world which if done in Malawi would be a felony, and which is an offence under the laws in the
place where it is proposed to be done, shall be guilty of a felony and shall be liable, if no other
punishment is provided, to imprisonment for seven years, of, if the greatest punishment to which a
person convicted of the felony in question is liable is less than imprisonment for seven years, then
to such lesser punishment.
s.405
Any person who conspires with another to commit a misdemeanour, or to do any act in any part of
the world which if done in Malawi would be a misdemeanour, and which is an offence under the
laws in the place where it is proposed to be done, shall be guilty of a misdemeanour.
s.406
Any person who conspired with another to effect any of the purposes following, that is to say –
(a) to prevent or defeat the execution or enforcement of any Act; or
(b) to cause any injury to the person or reputation of any person, or to
depreciate the value of any property of any person; or
(c) to prevent or obstruct the free and lawful disposition of any property by the
owner thereof for its fair value; or
(d) To injure any person in his trade or profession; or
(e) ….
(f) To effect any unlawful purpose; or
(g) To effect any lawful purpose by any unlawful means
shall be guilty of a misdemeanour
You do not have to physically meet. What matters is a meeting of minds.
Mwanza Murder Case, Supreme Court Judgement

G Orchard, @Agreement in Criminal Conspiracy@ 1974, Cr Law Review
297
Where parties are still negotiating without actually reaching an agreement as to what is to be done,
no conspiracy has taken place.
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Criminal Law 36
It is immaterial that the parties have merely agreed on a point of principle or in terms of principle
(leaving details later)
Thomson [1965] 50 CA 1
Mulcahy (1868) LR 3 HL 306
CONDUCT ELEMENT OF CONSPIRACY

The prohibited conduct (actus reus) is he agreement itself.
Omali V R MSCA, 4 ALRM 503
Nyuzi v R HC, 4 ALRM 429
Mwakawanga v R MSCA, 5ALRM 14
Conspiracy is proved by adducing evidence of acts carried out in fulfilment of the agreement. The
evidence is circumstantial and this is usually in complicated cases i.e. murder, corruption etc
R v Cooper [1947] 2AllER 701
It is important that the act agreed to be done must be criminal and the agreed upon crime must be
in the charge.
R v Mandala, HC 5ALRM 67
Because it is the agreement itself which is criminal, it is immaterial if the offence committed or
acts carried out differ with what was agreed.
R v Botton [1981] 94 Cr App L
For people to be conspirators, they must be acting together
R v Griffiths [1966] 1 QB 589

Mwakawanga v R
REQUIRED MENTAL ELEMENT OF CONSPIRACY

The basic fault element is two-fold:
i) each of the accused should have knowledge of the facts and circumstances
specified in the charge
R v Nkangama 11 MLR 183
ii) each accused should intend the conspiracy to be carried out and the intended
offence to be committed
TWO FORMS OF CONSPIRACY

- Statutory conspiracy – provide under statute – Penal Code
- Common Law conspiracy
Statutory conspiracy
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Criminal Law 37
s.404 provides conspiracy to commit a felony, 405 to commit a misdemeanour and 406 provides
other specific conspiracies
Common Law Conspiracy

- Conspiracy to defraud – agreeing to dishonestly deprive someone of a thing which he is
entitled to
Scott v Metropolitan Police Commissioner [975] AC 975
- Conspiracy to corrupt public morals – this can include corrupting or outraging public
decency by the manner of your dressing, speaking – what is targeted is conduct that will
shock reasonable people
Shaw v DPP [1973] AC 435

Knuller v DPP
DPP v Nock [1978] AC 979

It was held that for conspiracy, impossibility is a defence at common law
BUT
Under statutory law, impossibility is not a defence
Card R, The Working paper on Inchoate Offences, Crim Law review 1971, 674
INCITEMENT
It is a common law offence and it involves encouraging another person to do an act which is or
would be an offence if carried out.
S.41, 124, 125

s.41 – incitement to mutiny
s. 124 – incitement to break a lwa
s.125 – inciting a public officer not to do something
R v Kaitano HC 3ALRM 384
THE PROHIBITED CONDUCT OF INCITEMENT

The act incited must amount to a crime and the incitement can be expressed or implied.
R v Whitehouse [1977] QB 868

R v Tyrell (1894) 1 QB 710
THE REQUIRED MENTAL ELEMENT

It must be proved that the defendant knew or deliberately closed his eyes to all the circumstances
of the act incited which are elements of the crime in question.
Marlow 1997 Cr Law Review, 897

Curr [1968] 2 QB 944
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Criminal Law 38
OFFENCES RELATED TO PROPERTY
THEFT [ CHAPTER 26 OF PENAL CODE]
- The Law on theft is derived from common law as it has developed over centuries whose
chief aim is to preserve life and property.
- But over the years, there has been a shift to what exactly is protected.
Property is not just a thing but a bundle of rights i.e.

- possession
- legal title
- use
- dispose
- control
- manage
s.270 contains a list of things capable of being stolen :

- every inanimate thing whatever which is the property of any person, and which is movable,
is capable of being stolen
- the things capable of being stolen is capable of being stolen as soon as it becomes movable,
although it is made movable in order to steal it.
- List includes every tame animal and wild animals not ordinarily found in Malawi which are
the property of another person including parts
There is a close link between the English law of theft and the Malawian law of Theft.
ENGLISH LAW OF THEFT

What is considered the oldest codified law of theft in England is contained in the
Larceny Act, 1861 and 1916
Under this Act, stealing was divided into :
- simple larceny
- larceny by servant
- obtaining by false pretence
- embezzlement
- fraudulent conversion
Simple larceny
The most common offence that the thing must actually be carried away and this included:
- Removing way of anything from the place it occupies
- If it is something that has been attached to something, there must be detachment
- The right being protected was possession
- At Common Law, a possessor could not steal but this position has been changed over time
as there has been a shift from possession to protecting ownership.
- The owner is said to be the one with the majority of the property rights
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Criminal Law 39
- As of now, the present theft law is contained in the Thefts Act of 1968 & 1978. These Acts
codified all the previous statutes and also simplified the language so that an ordinary
person can understand what is demanded of him.
Tracy v DPP [1971] AC 537

Read comments on p655 on what the Acts have done
Provisions of the Penal Code relating to theft are similar to the English Law of Larceny of 1916.
However these provisions are not word for word identical so that judicial construction of these
provisions cannot be necessarily the same.
Randall-Day v R [1966 - 68] ALRM 155

Historical survey of English and Malawi Law of Theft
The position emphasised is that courts must construe the Penal Code according to the language of
the Penal Code.
Therefore try as much as possible to avoid citing English cases in construction of the Penal Code –
they must be cited with caution, after all they are not binding but only persuasive.
At the core of the law is dishonesty so must ask if the law is addressing this.
THEFT IN MALAWI
Defined in s.271
Elements :
- fraud
- without claim of right
- takes
- anything capable of being stolen (s.270)
- conversion to use
- other than special or general owner
ACTUS REUS OF THEFT

Prohibited conduct
- taking
- conversion
TAKING
- few problems arise where there is actual removal of something
- the taking becomes unlawful when there is no claim of right i.e. typical simple theft as in
taking a book
R v Zimba [1964-66] ALRM 288
On the face therefore, a person can not steal his own property as he has a claim of right but
think of the Art Collector who lends his painting to the museum and steals it from them.
GENERAL OR SPECIAL OWNER

- If Government leases a piece of land out to someone, Government is the general owner
whilst the tenant becomes the special owner.
- It is very common for a special owner to steal a thing in circumstances that can be said that
there was actually theft.
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Criminal Law 40
- s.276 : When a person takes or converts anything capable of being stolen under such circumstances
as would otherwise amount to theft, it is immaterial that he himself has a special property or
interest therein, or that he himself is the owner of the thing taken or converted subject to some
special property or interest of some other person therein, or that he is the lessee of the thing, or that
he is a director or officer of a corporation or company or society who are the owners of it.
- s.271(5) : A person shall not be deemed to take a thing unless he moves the thing or causes it to
move.
CONVERSION
What is required is that goods capable of being stolen must be converted to the use of the other
than the special or general owner.
For definition look at :
Randall-Day v R p174
Conversion consist in an act intentionally done and which is inconsistent with the owner’s rights,
though the owner does not know of, or intend to challenge the property or possession of the true
owner. There may be conversion of goods the defendant has never been in possession of them if
his act amounts to an absolute denial and repudiation of the Plaintiff’s rights.
Hawkins v R
R v Davenport [1945] 1AllER 602
Randall-Day v R
R v Kerry [1998] 3 AllER 731
Tries to answer the question of what should happen if you steal from a thief
MENS REA OF THEFT

What makes the taking or converting of something an offence is fraud
Fraud may be proved by a number of specific facts. S.271(2) – intention

- to permanently deprive
- to use something as pledge or security
- intent to deal with it such that it cannot be returned to its original position
- in the case of money, an intent to use it at will though there is intention to return
- to part with it on a condition which the owner will not be able to do
The range is from :

- intention to permanently deprive
to
- intention to use but without intent to permanently deprive
SOME OTHER RELEVANT MATTERS

- Under s.271(3) it is immaterial whether it is taken for the purpose of conversion, or whether it is
at the time of conversion in the possession of the person who converts it. It is also immaterial that
the person who converts the thing in question is the holder of a power of attorney for the
disposition of it, or is otherwise authorised to dispose of it.
- Therefore possession is not a defence to the charge of theft
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Criminal Law 41
- Under Common Law, a possessor could not steal something in his possession but you can
convert under the Penal Code.
- Under s.271(4) when a thing has been lost by the owner and found by the person who converts it,
the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or
converting the thing does not know who is the owner, and believes on reasonable grounds that the
owner cannot be discovered.
R v Jamitala [1964-66] ALRM 392
THEFT BY PUBLIC SERVANT

This is a serious crime in the category of theft in this country and provided in s.283.
Elements to be proved :
- being a public servant
- had money under him by virtue of being a public servant
- has failed to account of this money
If a public servant, if you fail to account, you are deemed to have stolen the money whilst in the
public sector, failure to account for money is not conclusive proof of theft!
This section has been attacked as it reverses the burden of proof from the prosecution to the
defendant.
It has been said that the section does not create a new offence, it is the same offence of theft, it
merely imposes a high standard of care to take care of public property.
Likaku v R [1966-68] ALRM
R v Levulo [1964–66] ALRM 494
Randall-Day v R
Zinyose & another v R [1966-68] ALRM 626
THEFT BY SERVANT
Provided in s.286(1). It does not create a new offence, all it does is provide for a higher sentence
where the offender is a clerk or servant and the thing stolen is the property of the employer or
came into his possession by virtue of his employment or on account of his employer.
OFFENCES AKIN TO THEFT

ROBBERY
It is an aggravated form of theft and provided in s.300.
Elements :
- a thing must be stolen (there must be theft)
- violence must be used or threatened to be used
- the violence must be used on a person or property
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Criminal Law 42
- the violence must be used or threatened immediately before or immediately after the
stealing
- must be used to obtain or retain the thing stolen including overcoming resistance to retain
or obtain.
Smith v Desmond [1965] AC 690
It must be proved that there was violence – essentially it is taking with violence
VIOLENCE
- Violence need not be physical violence and it is for the court to decide whether there was
violence
- The violence should be directed to the person from whom the thing capable of being stolen
has been stolen
Kholiyo v R [1964-66] ALRM 4
- And the violence can be used on a person or property. The violence must be linked to the
theft and must be used to further the offence
EXTORTION (BLACKMAIL) s.304

2 main elements must be noted :
- the communication must be such that it can prejudice any person
- the communication must be made with the aim of gaining / getting something from the person
R v Lawrence [1973] 57 Cr Ap R 64
Based on the Theft Act of 1968 (s.31)
Elements of the offence are the same as ours.
Thorne v Motor Traders Association [1937] AC 797
If you read s.304 and 305, is it extortion when the threat is verbal ?
s.304 : any person who, with intent to extort or gain anything from any person, and knowing the contents of
the writing, causes any person to receive anything demanding anything from any person without
reasonable or probable cause, and containing threats of any injury or detriment of any kind to be
caused to any person, either by the offender or any other person, if the demand is not complied
with, shall be guilty of a felony and shall be liable to imprisonment for fourteen years.
s.305 : any person who with intent to extort or gain anything from any person –
(a) accuses or threatens to accuse any person of committing any felony or misdemeanour …
(b) threatens that any person shall be accused by any other person of any felony or misdemeanour
…
(c) knowing the contents of the writing, causes any person to receive any writing containing such
accusation or threat as aforesaid
BURGLARY AND HOUSEBREAKING

These offences are covered in Chapter 29 of the Penal Code
s.309 (a)
Elements :
- breaks
- enters
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Criminal Law 43
- building, tent, vessel
- used as a human dwelling
- with intent to commit a felony
s.301
Elements :
- having entered
- with intent to commit a felony
- or having committed breaks out
When the housebreaking is committed at night, it is termed burglary
R v Manda 3 ALRM 99
Stands for the principle that the charge should specify the time for the offence was
committed
Mussa v R 1 ARLM 693
Careta v R [1966-68] ALRM 285
MENTAL ELEMENT
It is the intent to commit a felony or he must have already committed the felony when he is
breaking out.
R v Litha [1964-66] 3ALRM 264
The offence of housebreaking and burglary was intended to prevent trespass to property.
OFFENCES ALLIED TO HOUSEBREAKING AND BURGLARY
s.310-315
s.310 : Entering with intent to commit a felony a house etc

s.311 : Breaks and enters school-house etc and commits a felony – breaks out after the same
s.312 : like s.311 but with intent to commit a felony
s.313 : persons found armed etc with intent to commit a felony
s.314 : Criminal trespass
R v Yafete 7 ALRM 209

R v Harawa [1966-66] ALRM 324 ?
FALSE PRETENCES [CHAPTER 31]
Makanani v R [1964 - 66] ALRM
OFFENCES AGAINST MORALITY

These offences are provided for in Chapter 15 of the Penal Code.
The first offence is rape and is one of the most infamous and common offences.
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Criminal Law 44
RAPE
s.132
Elements
- unlawful carnal knowledge
- of a woman or girl
- without consent
- or with consent obtained by means of force, threat or intimidation
- or by false representation [as to the nature of the act]
- by personating her husband [in case of married woman]
Prohibited conduct is unlawful carnal knowledge of a woman or a girl
Legally in Malawi, what amounts to sexual intercourse is if there has been penetration of the penis
into the vagina.
The present position in England is that sexual intercourse maybe virginal or anal.
Mariette v R [1966-68] ALRM 119

Where the court held that to justify rape there had must be proof of at least slight (some)
penetration but there does not have to be emission
R v Kaluwa 3 ALRM 356
Twaibu v R 2 ALRM 532
The law presupposes that only a man can rape.
s.14 presumes that a male person under the age of twelve years is incapable of having carnal
knowledge
The law prescribes marriage as a for a where sex can be practiced and therefore the additional of
the word unlawful in the actus reus removes issues like marital rape. Where marital rape is a
criminal offence, the word unlawful is omitted.
Refer to the Cogan and Leak cases
R v Mwasumula [1966-68] ALRM 569

governs the Malawi case
Another reason why a husband cannot rape his wife is that she has upon agreeing to the marriage
given irrevocable consent for sex (perpetual consent)
In the UK, the position has changed and a husband can rape his wife
R (marital rape) [1991] 4 AllER / [1992] 1 AC 599
s.138 provides that if the girl is under 13 years of age, offence committed is one of defilement and
not rape
WITHOUT CONSENT
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Criminal Law 45
The absence of consent on the part of the victim is a central and important feature in rape.
R v Nzima [1966-68] ALRM 263

Where the court held that where you have sexual intercourse with a sleeping
woman knowing her to be asleep and unable to give consent amounts to rape.
Larter v R [1995] Cr Law Review

Where the court held that where a person is unconscious, then consent has not
been given – rape
Lang [1975] 62 Cr App Rep 50
Where consent is withdrawn, the position is that the perpetrator must withdraw with reasonable
haste.
Kaitamaki v R [1985] AC 147
Cooper & Schaub [1991] Crim Law Rev 531
What if the accused thought that she consented but she did not ?
DPP v Morgan [1976] AC 182
s.141 : procuring defilement by threats, fraud or through drugs
s. 139 : defilement of idiots or imbeciles
Howard [1965] 3 AllER 685
RECKLESS RAPE
In this case the accused fails to apply his mind to the question whether she is consenting or not or
cares less whether she is consenting or not.
Taylor [1985] Cr Ap R 827

Beckenridge [1984] 79 Cr Ap R 244
VICTIM MISTAKEN TO THE NATURE OF THE ACT
s.132 … by means of false representations as to the nature of the act
Williams [1923] 1 KB 340
Flattery [1877] 2QBD 410
WHAT IF CONSENT IS OBTAINED THROUGH A PROMISE
Linekar [1995] 2 QB 50
Consent will be treated as real consent and the fraud will be collateral to the act i.e. promise
to give a job or payment.
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Criminal Law 46
THREATS, FEAR, INTIMIDATION
s.132 provides that where consent is obtained by force or means of threats or intimidation, that
consent is not real consent and rape will have occurred.
Olugboja [1982] QB 310
FEAR OF BODILY HARM
s.132 provides that if there is no threat or force or intimidation, fear of bodily harm suffices (but
the courts would have to be satisfied that the fear was real to lead to a probable harm)
MENTAL ELEMENT
- the accused must intend to have carnal knowledge of the woman without her consent
- accused must have knowledge of absence of consent
- recklessness is also an element i.e. cares less or does not apply his mind to whether she is
consenting or not.
Taylor case or DPP v Morgan
In a charge of rape, self-induced intoxication on the part of the accused is not a defence as to
mistaken identity or act
Fotheringham [1989] 88 Cr Ap R 206
DEFILEMENT
Provided for in s.138

Any person who unlawfully and carnally knows any girl under the age of thirteen shall be guilty of
a felony and shall be liable for life
Unlike the offence of rape, consent is not a defence to a charge of defilement.
R v Kaluwa
even though consent is not relevant to the charge it may be during sentencing
R v Goliati 6 ALRM 251
As in rape, there must be proof of penetration
R v Kaluwa
MENTAL ELEMENT
The accused must intend to have carnal knowledge of a girl below the age of 13 and hence
knowledge of the age of the girl is material.
Under s.138 (last paragraph) it is a valid defence for the accused to say he had reasonable cause of
belief and did in fact believe that the girl was of or above the age of 13 years.
Recklessness is irrelevant : if the question is whether the accused applied his mind to gauge if the
girl may be under 13.
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Criminal Law 47
R v Malanda 12 MLR 213
DEFILEMENT OF IDIOTS OR IMBECILES
Under s.139
M’bwana v R 8 MLR 159
PROSTITUTION
This is a practice where a woman offers herself for sexual gratification to men or boys for payment
as a form of trade.
This is not a crime per se in Malawi. What the law has done is to make criminal conduct or
practices pertaining to prostitution i.e.
s.145 : living on the earnings of prostitution (male)

s.145 : living on the earnings of prostitution (female) or aiding another
s.147 : Any person who keeps a house, room, set of rooms, or place of any kind whatsoever for purposes
of prostitution shall be guilty of a misdemeanour (brothels)
R v Patricia Kadzakumanja 9 MLR 34
ABDUCTION
s.135
Elements are :
- takes a woman
- with intention to marry or carnally know here
- or cause her to be married or carnally known
- or detains her against her will
s.136 provides for abduction of girls under 16
Elements :
- unlawfully takes an unmarried girl under 16 years
- against will of her guardian
R v Jeremia 4 ALRM
UNNATURAL OFFENCES
- prohibits carnal knowledge against the order of nature of any person; and
- carnal knowledge of an animal
- basically homosexuality and lesbianism
OFFENCES AGAINST PUBLIC ORDER

TREASON
s.38 provides for the offence of treason.
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Criminal Law 48
- it basically involves preparation, endeavouring or conspiring to overthrow the lawfully
constituted government by force or other unlawful means.
Mwakawanga v R 5 MLR 14
Underlying the offence of treason is allegiance. One must be a citizen and thus owe allegiance, not
an alien. There must be breach of trust / betrayal of the government.
s.39 provides for concealment of treason offence and being accessory after the fact.
MUTINY
Provided in s.41
s.42 provides for aiding soldiers or policemen in acts of mutiny.
DESERTING
s.43 provides for inducing soldiers or policemen to desert
SEDITION
A seditious intention is an intention to bring into hatred or to excite disaffection against the person
of the President or the Government.
Chihana case
s.51 provides for seditious offences.
However in light of the current Constitution and the nature of politics, there seems to be some
limitations here on freedom of expression.
CORRUPTION (CORRUPT PRACTICES ACT – CPA)

s.24 provides for corrupt practices by or with public officers.
Elements
- public officer who himself or in conjunction with any other person
- corruptly solicits, accepts or obtains, or agrees to accept
- or attempts to receive or obtains
- from any person for himself or for any other person
- and advantage as an inducement or reward
- for doing or forbearing to do or having done and public action
Same elements apply to one who

- corruptly gives, promises or offers any advantage to any public officer for the same
s.25 deals with corrupt use of official powers and procuring corrupt use of officials powers
s.25A deals with public offers performing functions corruptly
s.25B deals with misuse of public office
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Criminal Law 49
s.25C provides for dealing in contracts by public officers
s.35D deals with disclosure of interest by public officers
s.26 deals with corrupt transactions by or with private bodies.
OFFENCES RELATED TO CORRUPTION
ABUSE OF OFFICE
Elements
- public servant
- acted arbitrary
- prejudicial to rights of another person (public / state)
ARBITRARY ACT
- autocratic
- despotic act
- beyond reason
- done at the whim
- it is beyond mere breach of [departmental] procedures
s. 25(a) of CPA : Arbitrary Act

- doing anything contrary to written procedure or established procedure or the law - but this
itself is problematic
- the issue should not be mere breach of procedure – it must be unreasonable
s.25 (c) - dealing with contracts

s.25 (d) – disclosure of interests
s.32 provides for the offence of possession of unexplained property
Element :
- Having or having under his control or in his possession pecuniary resources or property
reasonably suspected of having been corruptly acquired
Prohibited Act
- Possessing property that can not be explained with sources of income or other sources
Mental element
- Knowledge
Mens Rea
- intention
- knowledge
- recklessness
- negligence
-
Compare with the right to fair trial in s.42(2)(f)(iii-iv) of the Constitution
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Criminal Law 50
Arrest, detention 42. -
and fair trial
2. Every person arrested for, or accused of, the alleged commission of an
offence shall, in addition to the rights which he or she has as a detained
person, have the right -
f. as an accused person, to a fair trial, which shall include the right -
iii. to be presumed innocent and to remain silent during plea

proceedings or trial and not to testify during trial;
iv. to adduce and challenge evidence, and not to be a

compellable witness against himself or herself;
ROAD TRAFFIC OFFENCES

In Malawi these are contained in the Road Traffic Act (cap 61:01). Part II makes provision for the
main offences of the RTA. There is a close link between the RTA and the Act in the English Law
but much of that of the UK has changed. There are a number of offences. Major ones are :
1. EXCEEDING SPEEDING LIMIT : SECTION 92 OF RTA, 1997

Under the RTA, the Minister can make guidelines about speed limits in Malawi.. It is an
offence to exceed this. If you commit the offence, you can be fined and disqualified from
holding a licence for a period of time
2. RECKLESS DRIVING : SECTION 126

No person shall drive a vehicle on a public road recklessly. A person is said to drive carelessly
is he does so in wilful or wanton disregard for the safety of persons or property.
The court has to consider a number of factors, the conditions and the number of traffic
Bapu v R [1966-68] ALRM 479
3. NEGLIGENT DRIVING : SECTION 126
4. INCONSIDERATE DRIVING : SECTION 126

No person shall drive a vehicle without reasonable consideration of others using the road.
DEATH ARISING FROM RECKLESS DRIVING [s.126(4)]

Fined not exceeding K30,000.00 or imprisonment not exceeding 3 years
Under the old Act, there was the specific offence of causing death by reckless or dangerous
driving.
In the new Act, did s.126 create a new offence of causing death or is just expanding the law]
CF with the old Act s.123
R v Chinambale [1966-68] ALRM 191
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Criminal Law 51
DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR, DRUG OR WITH
EXCESSIVE AMOUNT OF ALCOHOL [ s.128]
Offence targets :
- actual driving the vehicle
- occupying drivers seat of motor vehicle whilst engine is running
- If a holder of a drivers licence, occupying a seat next to an owner of a learner’s licence
whilst the owner of the learner’s licence is driving on a public road
R v Kafukilira [1964-66] ALRM 38

R v Mwanyopa [1964-66] ALRM 238
s.128, 129 provides for unauthorised acts in relation to a vehicle
CARELESS DRIVING
Was provided for under s.118 of the old RTA
The Act also provides for the establishment of Traffic Court (Part XVI). Sometimes magistrate
courts operate as traffic courts (i.e. at the end of the week, Traffic Officer take all traffic
offences to court for recording in Mzuzu).
DEFENCES
- Sometimes there are distinctions between defences properly so called, justification and
excuses.
- Defence negates liability
Two types of defences :

- Of general application
- Of special application
GENERAL APPLICATION
- Available to all crimes
-
SPECIAL APPLICATION
- Available to specific offences
-
DEFENCES OF GENERAL APPLICATION
1. Infancy or immunity
The law excuses persons of immature age from doing certain things e.g. they can not enter into a
contract
Infants can not be held criminally liable for their actions and inactions
The penal code prescribes the age of 7 as the limit to infancy
The penal code has divided immaturity into 3
a) under the age of 7 years – ‘doli incapax’ incapable of forming a criminal mind. If you
instigate a child to commit an offence, you will be charged as the principal.
Walters v Lunt and another [1951] 2AllER 645 , Court of Appeal

The defendants were charged with receiving from a child, aged seven years, certain
articles knowing them to have been stolen. They were convicted
Held: (reversing the conviction)
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Criminal Law 52
Under the law, the child could not be guilty of larceny [as he was under the age of 8
years], therefore, the property taken by the child was not property “stolen or obtained
under circumstances which amount to felony or misdemeanour”
(therefore the respondents could not be convicted under the charge of receiving property
knowing it to have been stolen)
b) 7 – 12 years – a person under 12 years is not criminally responsible for an act or omission
unless it is proved that at the time of doing the act and making the omission, he/she had the
capacity to know that he / she ought not to do the act or omission i.e. not merely being
naughty or mischievous.
Under the Constitution, a child is under 16 years (Section )
2. Insanity
In insanity, we are concerned with the sanity or insanity of the accused at the time of the
commission of the offence.
Every person is presumed to be of sound mind and even to have been of sound mind and every
time that comes in question until the contrary is proved.
S. 11 of the Penal Code
Whenever the contrary has been proved, the law treats such person differently.
Criminal law recognises insanity as a defence as regards criminal responsibility. S12
o At the time of committing the prohibited Act
o Disease of mind
o Incapable of understanding what he is doing or that out not to be done
R v M’Naghten (1843) 10Cl & Fin 200

M’Naghten was charged with murder (by shooting Edward Drummond). He pleaded not
guilty. Medical evidence was called to prove that he was not, at the time of coming the
act, in a sound state of mind.
Held : The evidence was to the effect that persons of otherwise sound mind might be
affected by morbid delusions and that a person labouring under a morbid delusion might
have a moral perception of right or wrong but that in the case of M’Naghten, it was
delusion which carried him away beyond the power of his own control, and left him with
no such perception, and that he was incapable of exercising any control over acts which
had connection with his delusion.
Tindal J :
The question to be determined is whether at the time the act in question was committed,
the prisoner had or had not the use of his understanding, so as to know that he was doing
a wrong or wicked act.
Everyman is presumed to be sane, and to possess a sufficient degree of reason to be

responsible for his crimes, until the contrary is proved
To establish a defence on the ground of insanity, it must be clearly proved that at the
time of committing the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he
was doing, or, if he did know it, then he did not know he was doing what was wrong
(M’Nagthen rule)
The question there “if a person under an insane delusion as to existing facts commits an
offence in consequence thereof, is he thereby excused?” was answered in the affirmative.
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Criminal Law 53
Per curam
Tindal said that a Medical man cannot in strictness be asked his opinion in the truth of
facts deposed as the questions are not mere questions of science but of facts. But where
facts are admitted or not disputed, and the question becomes one substantially of science,
a medical man may be allowed in general form but not as a matter of right.
If a person successfully raises the defence of insanity, the Court will then enter a Special Verdict
that the accused is not guilty by reason of Insanity, and such a verdict entails that the court will
make a reception order for the admission of the person into a mental hospital. S.35 of Criminal
procedure and Evidence Code
Disease of the Mind

Any disease that affects the functioning of the mind, whether the cause is organic or functional;
permanent or intermittent
R v Andrea HC 5 ALRM 158

Andrea was charged with unlawful wounding (stabbing) of a person he did not previously
know after drinking kachasu. Cross-examination failed to establish any recollection on the part
of Andrea. Magistrate noted that there was no motive and was satisfied that he was at the time
in such a state of intoxication that his mind was unbalanced and that he was temporary insane
through intoxication. Special verdict of not guilty entered. Andrea appealed as the finding
meant also a reception order to a mental hospital.
Held :
Smith J :
There appears to be no general medical opinion upon what category of diseases are properly
called diseases of the mind. Such afflictions as hardening of the arteries, degeneration of the
brain cells due to, for example, syphilis, seem to have organic causes. In others such as
melancholia, schizophrenia, and many others which are usually treated by a psychiatrist, the
affliction seems to be functional in origin. The distinction between the two categories is
irrelevant in law, which is concerned not with the origin of a disease but only with the mental
condition which has brought about an act (see Devlin J in R v Kemp)
Smith J then summarised the law

b) as a general proposition, drunkenness is no excuse for a crime
c) insanity, if proved on a balance of probabilities, and whether caused by drunkenness or any
other cause, and whether temporary or otherwise, is a defence, but results in a verdict of
“not guilty by reason of insanity”. The words ‘disease of the mind’ restrict the defence to
minds defective by disease as opposed to those defective by lack of training, and the real
issue is whether there has been a defect of reason. The question the magistrate will ask
himself, or the judge will ask the jury is: “Did the accused know what he was doing, or did
he know he ought not to do it?” If the answer to either question is “No” he will ask: “Was
this because of a disease affecting his mind?” If “Yes” then the defence of insanity is made
out.
d) The defence of automatism is available independently of evidence of insanity or
drunkenness and there must be some explanation of how it was caused before it can be
accepted
Epilepsy can cause the disease of the mind as an element of insanity
Bratty v AG for Northern Ireland [1963] AC 386, House of Lords

Bratty killed a girl he was driving in his car by taking off her stocking and strangling her. His
defence was that he could not recollect anything – that blackness came over him. There was
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Criminal Law 54
evidence that he may have been suffering from psychomotor epilepsy. Defences of insanity and
automatism were raised. Judge rejected insanity. CA dismissed appeal against murder. Bratty
appealed to HOL :
Held
o Psychomotor epilepsy can cause ignorance of the nature and quality of acts done (i.e.
disease of the mind)
o However appeal dismissed as this was a case of automatism and elements not satisfied.
Lord Denning
Any mental disorder which has manifested itself in violence and is prone to recur is a disease
of the mind.
R v Sullivan [1984] AC 156, [1983] 2AllER 673, House of Lords

Sullivan was a lifelong sufferer of epilepsy. Through drugs his seizure reduced to in severity.
One such petit mal occurred when he was visiting a lady and another visited who wanted to aid
him was severally injured by the kicking Sullivan. Sullivan said he had no recollection of what
happened. Judge ruled that he would direct the jury if they accepted this evidence to enter a
special verdict upon which he pleaded guilty of assault and was convicted. He appealed
Held:
o The duration of a temporary suspension of the mental faculties of reason cannot be
relevant to the application of M’Naghten rules
o In Bratty it was accepted that epilepsy was a disease of the mind.
o A special verdict of not guilty by reason of insanity is a technical one which includes a
purely temporary and intermittent suspension of the mental faculties of reason, memory
and understanding resulting from the occurrence of an epileptic fit
At Common Law, there is a distinction between internal and external cause. The malfunction of
the mind has to be internal. If malfunction is caused by external agents, it will not be called a
disease of the mind even if the function of the mind has been affected.
Quick 1973 QB 910
Sullivan 1984 AC 156

Distinguished insanity from non-insane automatism where the result was be not guilty (i.e.
where the disease that caused the temporary and intermittent impairment of the mental faculties
was artiosclerosis)
M’Nagthen
Tindal J : For example, if under the influence of his delusion, he supposes another man to be
in the act of attempting to take away his life, and he kills the man, as he supposes, in self-
defence, he would be exempt from punishment. If his delusion was that the deceased had
inflicted a serious injury to his character and fortune and he killed in revenge of such supposed
injury, he would be liable for punishment.
Sullivan
Sleepwalking if caused by an internal factor and can be caused by a disease of the mind
R v Burges 1991 2AllER 769, Court of Appeal

Burgess and his friend and neighbour spent an evening at her flat. She fell asleep and whilst
asleep hit her over the head with a bottle and the video recorder and then grasped her on the
throat. When she cried out, he appeared to come to his senses and showed great anxiety over
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Criminal Law 55
what he had done. He was charged with wounding with intent. His defence was that he lacked
the mens rea because he was sleep-walking which is a non-insane automatism
Held :
o Assuming that he was not conscious at the time of the act, the medical evidence was
evidence of insanity
o Whatever factor caused the act, it was internal and not external
o Special verdict of not guilty by reason of insanity in lower court and appeal against this
verdict dismissed.
o
Holding of R v Abbey SCR 513 at 519 used
Any malfunctioning of the mind, or mental disorder having its source primarily in some
subjective condition or weakness internal to the accuses (whether fully understood or not) may
be a ‘disease of the mind’ if it prevents the accused from knowing what he is doing
Hyperglycaemia can cause a disease of the mind
R v Quick 1973 QB 910

Quick was a nurse employed in a mental hospital and was accused of assaulting a patient at the
hospital. Quick’s defence was that he could not remember assaulting the patient. Evidence
showed that Quick was a diabetic and relied on insulin and that he was suffering from
hypoglycaemia, a deficiency of blood sugar after an insulin injection.
Held :
o In order to sustain a defence of insanity, the accused had to show a malfunctioning of
the mind and a malfunctioning of the mind cause by some external factor could not be
said to cause the disease.
o Although hyperglycaemia can cause a disease of the mind, the mental condition from
which Quick suffered had not been cause by diabetes but by the use of insulin
prescribed by his doctor – therefore the alleged malfunctioning of the mind had
therefore been cause by an external factor
Hennessy (1989) 89 Cr Apr Rep 10, Court of Appeal

Hennessy was charged with taking a conveyance and driving while disqualified. His defence
was that at the relevant time, he had failed to take his proper dose of insulin due to stress,
anxiety and depression and consequently was suffering from hyperglycaemia (excessive blood
sugar) and in a state of automatism. Trial Judge ruled that the condition, if it existed, was
caused by diabetes, a disease, so that the defence was one of insanity under the M’Naghten
rules. (He appealed that the judge was wrong and his appeal was dismissed)
The law says the disease must affect the mind.
McNagthen – Defect of Reason

Deprivation of reasoning power and this should be distinguishable from mere confusion of the
mind or temporary absent-mindedness or emotional breakdown.
A belief in witchcraft

Details are discussed above under mens rea but suffice to state that the court amongst
other things considered if belief in witchcraft can be considered a reasonable belief and whether
such a belief is sufficient to establish insanity.
Held :
A belief in the efficacy of witchcraft or of threats based on witchcraft cannot per se be a
sufficient foundation for finding that the person concerned was suffering from a disease of the
mind
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Criminal Law 56
R v Ngwira 11 MLR 292
The appellant was charged with arson having burnt the grain stores of a person she believed
was a witch and had killed her son. At trial, she said she did not know what she was doing. She
was convicted. On appeal to the HC
Held :
Although a belief in the efficacy of witchcraft could not in itself amount to insanity, in
conjunction with other evidence (including evidence that the appellant was elderly and
uneducated villager obsessed by the belief that the complainant had cause her son’s death), it
could show that the balance of the appellant’s mind had been sufficiently disturbed to support
such a defence.
Conviction quashed and sentence set aside
Section 135(1) of CEPC construed

“Where any act or omission is charged against any person as an offence, and it is given in
evidence on the trial of such person for that offence and he was insane so as not to be
responsible, according to law, for his actions at the time the act was done or omission made,
then, if it appears to the court before which such person is tried that he did the act or made the
omission charged but was insane as aforesaid at the time he did or made the same, the court
shall make a special finding to the effect that the accused is not guilty by reason of insanity . . .
“
R v Magata /so Kachekahakana(1) referred to

Where he had killed his father “because he bewitched his 2 sons and killed them, he again
bewitched his wife and killed her, and also bewitched him and made him impotent … he
bewitched his goats and killed them all, he bewitched his cow which was still sick and
bewitched his second wife …” At the time of trial the accused was found to be medically
normal.
Held :
An African living far away in the bush may become so obsessed with the idea that he is being
bewitched that the balance of his mind may be disturbed to such an extent that it may be
described as disease of the mind”
Further even if your mind is affected, you must be incapable of understanding of what you are
doing or incapable of knowing that you ought not to do the act or make the omission.
Disease of the mind must produce

- incapability of understanding of what you are doing
- of knowing that you ought not to do the act or omission
It is this fault that negates the mental element
R v Pulumelo 1 ALRM 67, Court of Appeal for East Africa

It was established in evidence that the appellant, for no apparent reason, beat up his wife and
took his 3 year old daughter by the legs and dashed her head on the ground and she died as a
result of a fractured skull. Defence at trial was insanity. Verdict returned was murder guilty due
to summation of judge. He appealed
Held :
o A person is not criminally responsible for an act if at the time of doing it, he is, through
any disease affecting his mind, incapable of understanding what he is doing, or
knowing that he ought not to do the act.
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o Absence of motive for committing a crime is not itself sufficient to discharge the
burden of proof of insanity, but it is an element to be taken into consideration by the
court
o Retrial ordered
Whitley CJ
In criminal law :
1. Every man is presumed to be sane
2. If an accused sets up insanity as a defence, the burden is upon him to prove that he was
insane at the time of committing the act and
3. That the burden of proof of which he has to discharge is not so heavy as that which
rests upon the prosecution (of beyond reasonable doubt). It is no heavier than that
which rests upon a plaintiff in a civil suit where it is sufficient to establish a
preponderance
R v Chao 1 ALRM 189, High Court

Chao was employed to watch his master’s garden which was prone to thieving. He had been
deaf since childhood. When he had asked his master what he should do should he catch a thief,
the master said they would dig a grave and bury him and nothing would happen. One day Chao
caught a thief and killed him with blows, an axe and a knife. He then went to confess to the
Police and led them to the body. He was charged with murder and convicted. He appealed on
the ground of (amongst others) of suffering arrested mental development due to the fact that he
was deaf from childhood.
Held :
o The question to be asked in determining (M’Naghten) the mental responsibility of an
accused person is whether he was suffering from a disease affecting his mind such as to
make him incapable of understanding what he was doing or incapable of being able to
distinguish between right and wrong
o And deaf-mute, in order to establish a plea of insanity must satisfy the same test as laid
down for all other persons
o Accused convicted
R v Emi 1 ALRM 428

The accused was charged with infanticide of her female child. She was convicted although the
only evidence given was hearsay (what a medical officer heard other staff say). On revision
before the High Court. For a charge of infanticide, the conditions must be as would otherwise
amount to murder but for the disturbance of the balance of hear reason due to after-effects of
the birth.
Held:
o Where an accused appears unfit to plead, the court must inquire into the soundness of
mind of the accused and should not proceed.
o The question of insanity only arises after the accused, being fit to plead, had properly
pleaded and a plea of not guilty entered. The onus of establish such a defence lies on
the accused.
o The mere fact that a person is ‘insane’ at the time of commission of the offence is not
by itself enough to raise the defence of insanity; the insanity must be of the kind laid
down in the M’Naghten Rules
The English position is that the person must not know that he is doing something that is legally
wrong
R v Windle 1952 2All ER 1 Court of Appeal

Windle was accused for murdering his wife by giving her a dose of 100 aspirin pills. It was in
evidence that he was a weak character and had had an unhappy married life with a wife 18
years older who was always talking about committing suicide and that a friend had during one
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of his complaints said “giver he a dozen aspirins”. His defence was of insanity.. There was
some evidence that he suffered from some defect of reason or disease of the mind called
communicated insanity arising from being with a person of unsound mind. Trial judge said
there was no issue of insanity to jury and he was convicted. He appealed
Held :
Windle correctly convicted.
A man may be suffering from a defect of reason, but if he know what he id doing is wrong, and
by wrong is meant contrary to law – he is responsible
The law strives to balance between the need to protect the society and to deal with the individual
who is labouring under mental defect and not criminally responsible.
R v Clarke [1972] 1AllER 219, Court of Appeal

Clarke went in a supermarket and selected items and put them in a basket but transferred some
of them into her own bag so that when paying for the items in the basket, she did not pay for
the ones in the bag. She was charged with theft. Her defence was that she had no intent to steal,
that she suffered from diabetes and had various domestic problems. Evidence by medical
experts said she was suffering from depression which could produce absent-mindedness.
Held :
The M’Nagthen rules relate to accused persons who by reason of a disease of the mind are
deprived of the power of reasoning. They do not apply and never have applied to those who
retain the power of reasoning but who in moments of confusion or absent-mildness fail to use
their powers to the full.
Therefore diabetes was not taken to be a disease of the mind or one that would lead to a
disease of the mind.
DURESS
S. 16 of the Penal Code states that
A person is not criminally responsible for an offence if it is committed by two or more
offenders, and if the act is done or omitted only because during the whole of the time in which
it is being done or omitted, the person is compelled to do or omit to do the ct by treats on the
part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he
refuses; but threats of future injury do not excuse any offence.
The key element here is that the threat must come from a co-offender which distinguishes our law
from the Law in England.
Dambuleni v R 7 MLR 352
R v Graham 1982 1AllER 801

The appellant Graham (G) was practicing homosexual living in a bizarre ménage a trois with
his wife (W) and another homosexual K. G suffered from an anxiety state and was taking
valium which according to medical evidence rendered him susceptible to bullying. K was a
violent man and had been found guilty of violent acts. One day, K attacked W who went and
sought refuge at G’s mother. G and K stayed drinking heavily while G also took valium. K
suggested getting rid of W once for all and. G induced her to return by pretending that he had
cut his wrists and whilst she bent to help him, K put a percolator flex around her neck and W
died. G was convicted of murder. On appeal
Held :
o It was open to the defence to have raised the issue of duress. In other words then, the
defence of duress was available to a principal in the first degree of murder [CF with
Lynch v DPP for Northern Ireland]
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o Duress is analogous to provocation and therefore also has two tests, the subjective test
and the objective test. Subjective test would be did G act because he had a well-
grounded fear of death and the objective test would be did he react in such a way that a
reasonable person in his situation would?
Lord Lane CJ
Provocation and duress are analogous. In provocation the words or actions of one person break
the self-control of another. In duress the words or actions of one person break the will of
another. The law requires a defendant to have the self-control reasonably to be expected of the
ordinary citizen in his situation. It should likewise require him to have the steadfastness
reasonably expected of the ordinary citizen in his situation. So too with self-defence, in which
the law permits the use of no more than is reasonable in the circumstance. And in general, if a
mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one.
Dicta
The fact that the defendant’s will to resist has been eroded by the voluntary
consumption of drinks or drugs or both is not relevant to the tests
INTOXICATION
s.13 of the Penal Code states that :
(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal
charge
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person at the
time of the act or omission complained of did not know that such act or omission was
wrong or did not know what he was doing was wrong and –
(a) the state of intoxication was caused without his consent by the malicious or
negligence act of another person; or
(b) the person charged was by reason of intoxication insane, temporary or otherwise, at
the time of such act or omission
(3) Where the defence under the preceding subsection is established, then in a case falling
under paragraph (a) thereof the accused shall be discharged, and in a case falling under
paragraph (b) the provision of Section 12 [Insanity] shall apply
(4) Intoxication shall be taken into account for the purpose of determining whether the person
charged had formed any intention, specific or otherwise, in the absence of which he would
not be guilty of the offence.
(5) For the purpose of this section ‘intoxication’ shall be deemed to include a state produced by
narcotics or drugs.
Refer to judgement of Smith J where the Court laid down the law in R v Andrea.
Smith J then summarised the law

e) as a general proposition, drunkenness is no excuse for a crime
f) insanity, if proved on a balance of probabilities, and whether caused by drunkenness or any
other cause, and whether temporary or otherwise, is a defence, but results in a verdict of
“not guilty by reason of insanity”. The words ‘disease of the mind’ restrict the defence to
minds defective by disease as opposed to those defective by lack of training, and the real
issue is whether there has been a defect of reason. The question the magistrate will ask
himself, or the judge will ask the jury is: “Did the accused know what he was doing, or did
he know he ought not to do it?” If the answer to either question is “No” he will ask: “Was
this because of a disease affecting his mind?” If “Yes” then the defence of insanity is made
out.
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The general position is therefore that it is not a defence unless under special circumstances and for
these to arise it must be proved that the intoxication was brought by the malicious intent of another
(differentiating therefore between involuntary and voluntary intoxication) or that the intoxication
must result in insanity, temporary or otherwise.
R v Osman 5 ALRM 225 Supreme Court of Appeal

Osman was charged with murdering his grandfather whom he stabbed with a knife as he was
sleeping in the other room of their house. His defence was that he had no intention whatsoever
of harming his grandfather nor any reason to do so. He said that when he became aware of what
he had done he was shivering and sweating and that he felt dizzy and hotness in the head. He
was convicted. He appealed.
Held :
Watkin-Wlliams CJ :
When the only cause that is assigned for an involuntary act is drunkenness, then it is only
necessary to leave drunkenness to the jury, with the consequential directions, and not to leave
automatism at all. When the only cause that is assigned for it is a disease of the mind, then it is
only necessary to leave insanity to the jury, and not automatism. When the cause assigned is
concussion or sleep-walking, there should be some evidence from which it can be reasonably
be inferred before it should be left to the jury.. If it is said to be concussion, there should be
evidence of a severe blow shortly beforehand. If it is said to be sleep-walking, there should be
some credible support for it. His mere assertion that he was asleep will not suffice.
Archibold, Criminal Pleading, Evidence and Practice , 36th ed at 18, para 41 (1966)
Whether the issue of insanity has been raised or not, the defence of automatism may be
available, e.g. where the prisoner received a blow on the head after which he acted without
being conscious of what he was doing, or where he was a sleep walker
It is necessary that a proper foundation be laid for the defence before a judge can leave the
issue of automatism to the jury. The defence must be able to point to some evidence, either
from their own or from the Crown’s witnesses from which the jury should reasonably infer that
the prisoner acted in a state of automatism. Whether there is or not such evidence is a matter of
law for the judge. Once the defence have satisfied that there is evidence fir for the jury’s
consideration, the proper direction is that if the evidence leaves them in a real state of doubt,
they should acquit.
Intoxication and Insanity

Intoxication can activate some form of insanity.
Intoxication and intention.

s.13(4) says that intoxication made be taken into account in trying to establish if the person had
formed any intention
R v Andrea HC 5 ALRM 158

Smith J
insanity, if proved on a balance of probabilities, and whether caused by drunkenness or any
other cause, and whether temporary or otherwise, is a defence ….
Kachamba v R 3 ALRM 83
Menyani v R 4 ALRM 79, Supreme Court

Menyani was charged with murder in the HC. After drinking some beer, he met the deceased
and a quarrel arose. The deceased insulted Menyani who knocked her down, took off one of his
boots and hit her with it several times. Seeing that she was unconscious he poured some water
over her but her injuries proved fatal. At the trial the judge found that a reasonable man would
have foreseen the consequences of the appellant’s actions, that there was provocation but that
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the act which caused the death did not bear a reasonable relationship to the provocation, and
Menyani was convicted. He appealed to the SC
Held :
Smith J :
The learned judge correctly appreciated that as he found that appellant did not intend to kill the
woman but there was no evidence that the appellant was so drunk that he could not and did not
for the intention required by law so as to make him guilty of murder.
And
But s.213(1) which reduces murder to manslaughter where the fatal act was committed in the
heat of passion caused by sudden provocation does not apply unless the court is satisfied that
the act which caused the death bore a reasonable relationship to the provocation
And
We must agree with the finding of the judge in the instant case that the appellant was provoked
and acted under provocation; but we find ourselves compelled also to agree with him that the
act which caused death was totally out of proportion to the insult offered
Judgement of Unsworth CJ in Kachamba v R (2) 3 ALRM 84 where drunkenness has no

application to the defence of provocation cited to dispose of a ground of appeal :
Provocation for the purposes of [that] section [s.214] must be judged by the standards of
the ordinary man as prescribed by the section and not by those of a drunken man
Sitolo v R 4 ALRM 506 Supreme Court

Sitolo was charged with the murder of his brother in law. He quarrelled with his sister at a beer
party and beat her up. Her husband, the deceased upon hearing this attacked Sitolo and pushed
him down. Sitolo, who was under the influence of drink, picked up a panga and killed the
deceased. Trial judge found that the provocation offered to the appellant was not grave and that
his retaliation was wholly disproportionate. He was convicted of murder and he appealed to the
SC on these grounds (amongst 3) :
(b) Whether provocation is required to be “grave” by the law of Malawi
(c) Whether the fact that the appellant was drunk should have any effect on the finding
Held :
Southworth CJ
There is no requirement in the law in Malawi that the provocation should be “grave”. It is clear
nonetheless that in order to provide a defence to the charge of murder the provocation suffered
by any accused person must be of sufficient gravity to cause an ordinary man of the accused
person’s community to lose control of himself.
The objective test is whether the measure of provocation required to constitute a defence is a
measure sufficient to cause an ordinary man, and not a drunken man, to lose control of himself.
(Therefore the argument that the appellant was the more inclined to lose his temper because he
was under the influence of drink did not assist him)
Mukamba v R 4 ALRM 489 applied
PROVOCATION – A DEFENCE OF SPECIAL APPLICATION

Should loss of self-control be an excuse for criminal liability?
Many legal systems allow provocation as a qualified defence. In England and Malawi, it is a
partial defence to murder and merely reduces it to manslaughter – and it is not a defence to other
crimes.
CPP v Phiri 10 ALRM 202
It is generally accepted that loss of self control does not negate intention.
A critical question is whether loss of self control negates voluntariness
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Behaviour during loss pf control is uncontrolled and not uncontrollable. The significance is that
the elements of choice and control are significantly reduced (moral non-voluntariness)
As a principle, citizens have a duty to learn to control their passions and tempers to the extent of
not inflicting criminal harm.
R v Graham
Lord Lane CJ
Provocation and duress are analogous. In provocation the words or actions of one person break
the self-control of another. In duress the words or actions of one person break the will of
another. The law requires a defendant to have the self-control reasonably to be expected of the
ordinary citizen in his situation. It should likewise require him to have the steadfastness
reasonably expected of the ordinary citizen in his situation.
The law has adopted the view that loss of self control should never be used to negate the intent and
is only applicable to murder.
s.213 provides for killing on provocation

(1) when a person who unlawfully kills another under circumstances which, but for this section,
would constitute murder, does the act which causes death in the heat of passion caused by
sudden provocation as hereinafter defined, and before there is time for his passion to cool,
he is guilty of manslaughter only.
(2) This section shall not apply unless the court is satisfied that the act which causes death
bears a reasonable relationship to the provocation
Elements are
o Does the act
o In the heat of passion
o Caused by sudden provocation and before there is time for his passion to cool
214. Defines provocation

The term ‘provocation‘ means and includes, except as hereinafter defined, any wrongful act or
insult of such a nature as to be likely, when done or offered to an ordinary person, or in the
presence of an ordinary person to another person who is under his immediate care, or to whom
he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master and
servant, to deprive him of the power of self-control and to induce him to assault the person by
whom the act or insult is done or offered.
A lawful act is not provocation to any person for an assault.
An act which a person does in consequences of incitement given by another person in order to
induce him to do the act and thereby furnish an excuse for committing an assault is not
provocation to that other person for an assault
For the purpose of this section, the expression an ordinary person shall mean an ordinary
person of the community to which the accused belongs.
There are 2 tests / elements (refer to R v Graham)

Subjective element
It must be proved that the defendant was provoked and he lost self-control and he must have been
induced to assault the person
Duffy (1949) 1 AllER 932
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Ibrams (1982) 74 Crim App Rep 174
Mukamba v R 4 ALRM 489 Supreme Court

Mukamba was charged with murder in the HC. He had been living happily with his wife for 13
years but on the fateful day found her sitting on a bed with another man. She insulted him and
in the heat of passion he stabbed her. Trial judge rejected the first part of this story and found
that even if insults had been offered the stabbing bore no reasonable relationship to the
provocation . He was convicted of murder. He appealed to the SC and the Court considered
whether S.213(2) of the Penal Code which deals with the concept of reasonable retaliation can
have any effect once it is accepted that an accused had lost control of himself by reason of
provocation.
Held : (allowing appeal)
Southworth CJ :
Once it is accepted that an accused person has lost control of himself as a result of being
provoked, it becomes irrelevant whether his consequential actions are regarded as reasonable or
unreasonable.
And to quote the DPP in the case
Once reason has been dethroned, one cannot look for reasonableness or unreasonableness
Therefore when it is accepted that an accused person has lost control of himself by reason of
provocation, then as long as, and only as long as, his loss of self-control continues, there must
be doubt as to whether what he does thereafter is reasonable or reasonable; and he must be
entitled to the benefit of that doubt.
Briggs FJ in Greyson v R 2 ALRM 28

In a sense it can never be reasonable to kill someone in consequence of provocation, and that in
that sense a “reasonable relationship” can never exist
Per curiam of Southworth CJ in Mukamba v R

This court feels most strongly that the introduction of the proviso [s.214(2) by way of
amendment in 1953) was ill-conceived and would respectively suggest that its removal might
be considered by the appropriate authority
Objective element
The objective test is whether the provocation was enough or of such nature to cause a reasonable
person of the accused community or society to be provoked. The Courts have substituted the
element of reasonableness for an ordinary person.
R v Alyina 1 ALRM 510
Grayson v R 2 ALRM 22 Federal Supreme Court

Grayson was accused of murdering his wife by stabbing her with a knife several times. Facts
were that Grayson was fraudulently induced into a marriage thinking the woman had not been
married before when in fact she had been married 2 times and apparently was still having
affairs with the other men. One of them actually boasted of this and even burnt down Grayson’s
house. His efforts to have relief and redress failed because the Chief were related to his wife.
One night he heard his wife talking outside with a man whom he believed to be the former
husband but who ran away but when he confronted her she used insulting words casting
imputations on his virility (they had recently had a child). HC convicted him. He appealed to
FSC
Held : allowing the appeal
Briggs F J
… the sub-sections really mean that one must consider the whole of the provocation given and
the whole of the accused’s reaction of it, including the weapon, in any used, the way it came to
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hand, the way it was used, and every other relevant factor, and must finally decide whether an
ordinary man of the accused’s community – with his ordinary allowance of wickedness – might
have done what the accused did
… shows that to speak of what a man ‘should’ have done must merely obscure the issue. I
would go further, and say that the test is not even what an ordinary man would have done, but
what such a person might have done
In a sense it can never be reasonable to kill someone in consequence of provocation, and in that
sense a “reasonable relationship” can never exist, but obviously that is not what the sub-
sections mean, and I can see no other test of reasonable relationship save the one I have
described
R v Chao
Held :
o The question to be asked in determining (M’Naghten) the mental responsibility of an
accused person is whether he was suffering from a disease affecting his mind such as to
make him incapable of understanding what he was doing or incapable of being able to
distinguish between right and wrong
Nankondwa v R 4 ALRM 388 Supreme Court

Nankondwa was married to a woman of a certain village who superstitiously believed that the
death of their two children were because Nankondwa had associated with another woman and
had him evicted from the village. He came back and set fire to the house where the wife had
gone to sleep. There were seven people in the house. 6 escaped and one, child of the house
owner died. Nankondwa told the police that he had only intended to deprive the wife shelter
and had not seen her that evening. Under oath, he admitted having met her and that she had
insulted him. Trial court found no evidence of provocation before the fire. He was convicted of
murder. He appealed to the SC
Held : dismissing appeal
Cram J:
Knowledge was not the personal knowledge of the accused person but an objective test; the
knowledge which a ‘reasonable man’ must be presumed to have to foresee the probable
consequences of his own acts.
Obviously, there can be at the present day no absolute, world-wide, standard “reasonable man”.
The test would be acceptable in this country only if this fictional person were located in the
community to which the accused belongs
And interestingly
If the objective test is applied to this standard, the effect could be prejudicial to an accused and
beyond legislative intent. This is not so if the subjective test of the accused’s own knowledge is
applied; his knowledge is consequent upon his own capacity, which may be limited, and not
upon that of a norm of his community.
Here appellant acted deliberately, and obviously had personal knowledge that to fire a grass-
roofed house in the dry season, after blocking the doorway, would probably cause death, or at
least, grievous harm to any person inside: he knew that one person at least was in the house, his
wife, for he heard her voice.
For the objective test to be correct any reasonable person of the appellant’s community would
have to be held to have had an intent to kill or to cause grievous harm to his wife or any other
occupant
Kamiata v R applied
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It is also a requirement that the act must be a wrongful / unlawful act or insult as a lawful act is not
provocation for an assault.
Conduct that has been held to be provocative :

(i) Adultery
R v Alyina
Chaisan v R 1 ALRM 730
(ii) Refusal of sexual intercourse by a wife
R v Masimola
(iii) Belief in witchcraft

Held :
A belief in the efficacy of witchcraft or of threats based on witchcraft cannot per se be a
sufficient foundation for finding that the person concerned was suffering from a disease of the
mind
R v Ngwira 11 MLR 292

Held :
Although a belief in the efficacy of witchcraft could not in itself amount to insanity, in
conjunction with other evidence (including evidence that the appellant was elderly and
uneducated villager obsessed by the belief that the complainant had cause her son’s death), it
could show that the balance of the appellant’s mind had been sufficiently disturbed to support
such a defence.
R v Magata /so Kachekahakana(1) referred to

Held :
An African living far away in the bush may become so obsessed with the idea that he is being
bewitched that the balance of his mind may be disturbed to such an extent that it may be
described as disease of the mind”
(iv) Murder of another person
R v Felesia 1 ALRM 107
(v) Cumulative provocation over time
Zakaria v R 5 ALRM 270 Supreme Court of Appeal

Zakaria was charged in the HC with murder. He had come from a beer-drinking party and
found his wife absent from home. He traced her to a house where she claimed to be visiting a
sick person. He suspected she was there for immoral reasons because she had previously (he
alleged) committed adultery. He stabbed the wife and she died from such injuries. At trial
prosecution alleged that the stabbing was unprovoked whilst he alleged that his wife threatened
him with a knife and in the struggle to disarm her she received a mortal wound. Trial judge
invited jury to consider defences of self-defence, drunkenness and provocation (he did not put
the issue of cumulative provocation to them). He was convicted of murder. He appealed to the
SC contending that in view of his wife’s unfaithfulness, the court should have directed the jury
on the issue of cumulative provocation, culminating in the events of the night when she died,
and the jury might then have returned a verdict of manslaughter and not murder.
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Held:
Bolt J:
It is difficult to reconcile what is “cumulative” with the provisions of s.213 and s.214 of the PC
relating to provocation. On the other hand, it was held in Chibeka v R (1) that in considering
whether present conduct can amount to provocation as defined, it is essential that the court
should have regard to the previous history of the matter. With respect, although this decision,
which was given by the former Federal Supreme Court, is not binding on this Court,
nevertheless it seems to be sound common sense and not outside the ambit of ss.213 and 214 of
the PC.
If there has been a previous history of friction between those concerned, a course of conduct in
which they may have been other acts of provocative nature (not necessarily amounting
themselves to provocation as defined), then, particularly where these have been of a
comparatively recent nature, it would appear to be unreal and unjust to an accused person to
view the culminating incident in isolation.
And
The test of provocation is an objective one, that is to say, was the conduct in question such as to
cause a reasonable man of the accused person’s community to lose his self-control and assault
the other person concerned? In applying that test however, the preceding circumstances should
be taken into account and if there has been a previous history of conduct of a provocative
nature, this should be drawn to the attention of the jury who should be told to consider the
culminating incident in the light of what has gone before.
Kamiata v R 4 ALRM 375, Supreme Court

Kamiata was charged with murder in the HC. He killed a woman with whom he had had a
border dispute over farming land. He was convicted. He appealed on the grounds of defence of
property (that she had been stealing his maize) and provocation offered to the applicant’s
property.
Held : dismissing appeal
Cram J
It is possible that the deep feelings aroused in this country over possession of land, and
the smouldering of these feelings in the appellant for a quarter of a century may appear,
[in another place], as some extenuation.
Greyson v R 2 ALRM 22
Court held that the deceased’s antecedent conduct was intensely provocative and that full
weight should have been given to its cumulative effect when she brought matters to a head
[instituted the final act of insult]
Nankondwa v R 4 ALRM 388

Held :
Cram J :
“The appellant admits the declining marriage, the death of twins; the withdrawal of affection,
his escort from the village by his wife’s brother, his return to plead with her, her abuse of him
and the blow he stuck her “
Applied Kumiata v R that antecedent wrongful acts and insults could be taken into account
cumulatively if there was a final wrongful act or insult.
Question the Court considered was were these [repeated use of derogatory and humiliating
terms, wrongfully evicting him from her bed, board house and village and finally insulting him
before the fire] the circumstances, an ordinary person of the appellant’s community might be
provoked
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Court found that they , being mainly verbal, whist might be excuse for an assault on the wife
with bare hands or even a stick could not bear a reasonable relationship to the fearful
retaliation of walling her up in a burning house – an ultimate expression of human savagery.
Courts have ruled that there must be a reasonable relationship between the provocation and the
response.
Mbaila v R 4 ALRM 446
Mbaila was charged with killing his wife in the High court with an axe (she died after several
days and making a statement). He claimed that he had done this because she had pushed the
child. The wife claimed it was he who had pushed the child. Trial judge rejected the defence of
provocation finding that the appellant and not the wife had injured the child. Mbaila was
convicted of murder. He appealed to SC
Held :
Bolt J:
Quoting Briggs F J in Greyson v R
“The sub-section [s.213(2) really means that one must consider the whole of the
provocation given and the whole of the accused’s reaction to it, including the
weapon, in any used, the way it came to hand, the way it was used, and every other
relevant factor, and must finally decide whether an ordinary man of the accused’s
community – with his ordinary allowance of human wickedness – might have done
what the accused did”
In present case, ultimate cause of death was the infection which set in and not the original
wound, which might have been susceptible to successful treatment had the woman been taken
to hospital. This is no way derogates from the seriousness of what the appellant did, but it is a
clue … to the manner in which the appellant used the axe. . . prosecution failed to negative the
possibility that it was the deceased … who injured their child, to which may be added further
evidence that the woman was abusing the appellant … It cannot be said with any assurance that
the act which caused death bore no reasonable relationship to the provocation
Appeal allowed, conviction altered to manslaughter
Mukamba V r 4 ALRM 489
Sitolo v R 4 ALRM 506

Held:
Court held that the provocation (being pushed by the brother-in-law) was not proportional to
the response (killing him with a panga and almost severing his head). The objective test is
whether the provocation was such as would cause an ordinary man in the accused’s
community, not the accused, to lose control of himself – it was found against the appellant.
R v Mwasumula
The reasonable relationship doctrine has come under criticism from certain learned authors. In
Russell on Crime it says
If however, the defence of provocation still exists . . . and yet the ‘reasonable retaliation’
doctrine must be retained, then the problem of formulating the legal principles upon which that
defence depends in any way which will leave standing the statements contained in the
judgements of what have hitherto been regarded as a line of leading cases stretching back to the
time of Coke, would seem to be inslube
But it is law in Malawi!
___________________________________________________________________________
Criminal Law 68

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What are the main justifications for criminal law according to the passage?

What are the main justifications for criminal law according to the passage?

What are some of the sources of criminal law mentioned in the passage?

What are some of the sources of criminal law mentioned in the passage?

CRIMINAL LAW

Crimes affect the society [in some way]

In criminal law, the state takes charge of proceedings

WHY HAVE CRIMINAL LAW

3. Rehabilitation – aims at reforming the offender

SOURCES OF CRIMINAL LAW

a. Penal Code (Chapter 701 of Laws of Malawi)

b. Criminal procedure and Evidence Code (Chapter 702 of Laws of Malawi)

c. Corrupt Practices Act

e. Road Traffic Act

g. Common Protection Act

R – Kamil and Yaghi [1971-72] ALRM 358

Section 7 of the Penal Code : ignorance of the Law is no defence

- By having the law codified, it improves the quality of the law

- Criminal law play a distributive function of resources

CONSTITUTIONAL LAW AND CRIMINAL LAW

• Right to remain silent

Arrest, detention 42. -

a. to be informed of the reason for his or her detention promptly, and in a

c. to consult confidentially with a legal practitioner of his or

d. to be given the means and opportunity to communicate

e. to challenge the lawfulness of his or her detention in

f. to be released if such detention is unlawful.

2. Every person arrested for, or accused of, the alleged

a. promptly to be informed, in a language which he or she

b. as soon as it is reasonably possible, but not later than 48

c. not to be compelled to make a confession or admission

d. save in exceptional circumstances, to be segregated from

e. to be released from detention, with or without bail unless

i. to public trial before an independent and impartial

ii. to be informed with sufficient particularity of the

iii. to be presumed innocent and to remain silent

iv. to adduce and challenge evidence, and not to be a

v. to be represented by a legal practitioner of his or her

vi. not to be convicted of an offence in respect of any

vii. not to be prosecuted again for a criminal act or

viii. to have recourse by way of appeal or review to a

ix. to be tried in a language which he or she

x. to be sentenced within a reasonable time after

a. in addition, if that person is a child, to treatment

i. not to be sentenced to life imprisonment without

ii. to be imprisoned only as a last resort and for the

iii. to be separated from adults when imprisoned,

iv. to be treated in a manner consistent with the

v. to be treated in a manner which takes into account

vi. to be dealt with in a form of legal proceedings that

NATURE OF CRIMINAL LIABILITY

1. Principle of individual autonomy

3. Minimalist Principle (Deminimis Principle)

- Minor wrongs should be left to other forms of social control

Debate between Lord Devlin and Professor Hart

NATURE OF CRIMINAL LIABILITY

C. CRIMINAL LIABILITY DISTINGUISHED

CLASSIFICATION OF CRIMINAL OFFENCES

1. SUMMARY AND INDICTABLE OFFENCES

Osman v R [1964-66] 3 ALRM 595