LECTURE NOTE IN CRIMINAL LAW BY ROSE SAMAKAYI

PART I
1. INTRODUCTION
DEFINITION OF CRIME
We ought to define crime because of the serious consequences that follow conviction.
Various writers have attempted to define it to produce a satisfactory definition. Crime is
a moral wrong that destroys society. They are acts which affect the society badly. It is not
all acts that severely affect society. Some crimes lose their criminality. In Zambia crimes
are all written in statues and for which criminal proceedings are instituted at the instance
(legal action) of the state.
Cross and Jones describes a crime as any serious social wrong doing which
society has decided to call a crime. He defines it as:
“an illegal act, omission or event , the principal consequence of which the
offender, if he is detected, is liable to punishment.”

MORALITY AND CRIMINAL LAW

Q
“A
crime is a legal wrong the remedy for which is punishment at the instance of the state”.
This also does not distinguish between crimes and civil wrongs. For our purposes we
will take the definition in Smith and Hogan which states that:
“Crimes are wrongs… which Parliament has from time to time laid down are
sufficiently injurious to the public to warrant the application of criminal procedure to
deal with them.”
This is still debatable as it does not tell us why some acts are crimes and others are not.

PURPOSE OF CRIMINAL LAW

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 The object of criminal law is to regulate social behaviour in society or to have
moral conduct that injures society punished. The object of civil law is to compensate the
victim. For those reasons the criminal proceedings are at the instance of the state.
i. Protection of lives
- The protection of human persons (to some extent animals also) against
deliberate violence, cruelty, or unwelcome sexual approaches is one of the
objects of criminal law.
- It seeks the protection of easily persuadable classes of people like the young
and easily weak minded against abuse of their persons or property.

ii. Social protection

- Criminal law also aims to protect society against some form of unintended harm
form traffic, poison, infections and radiation.
- It aims to prevent acts which, involves willing adults, are regarded as unnatural.
Examples of these are cases involving incest, bestiality, drug abuse.
- It also aims to prevent acts performed publicly which tend to deprave or to
shock other people like indecent exposure, obscene language, or copulation
between consenting adults.
- It discourages behaviour which might provoke disorder.
- It aims to protect property rights as against theft, fraud, or damage.
- It protects social institutions such as marriage or religious worship for instance
by prohibiting bigamy or blasphemy.

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iii. Regulate all sectors of society to conform and to maintain law
and order
- it prevents public inconvenience arising from for example obstruction of roads
by vehicles.
- It collects revenue by issuing car, television licences, etceteras.
- It seeks to prevent unreasonable discrimination on ethnic groups, religions, and
sex etceteras.
- It seeks to ensure enforcement of the processes connected to the offences of
arrest, assisting offender to escape arrest and testimony at trials.
1 THEORIES OF PUNISHMENT AND PRINCIPLES OF SENTENCING
Theories of Punishment
The main aim of criminal law is to punish the offender. For this is the main
theories are: a) Retribution
b) Deterrence
c) Reformation/Rehabilitation
RETRIBUTION:
When someone is convicted the law demands that some kind of retributive act
i.e. sanction should be meted out on the offender. The reason is that society does not
approve that kind of behaviour. This is a natural instinct that the person offending will try
to retaliate, so society will try to hit back.
Retributive justice is an expression of the community’s disapproval of
defendant’s anti-social act.
The word retribution is employed to indicate either vengeance or giving the
offender his or her just deserts and using punishment as a system of censure
(disapproval) or denunciation.
The criminal law proceeds upon the principle that it is morally right to hate
criminals and it justifies the sentiments by inflicting upon criminals. This desire for
vengeance supposedly operates at two levels:
Firstly, it is asserted that punishment satisfies the victim’s (or friends’ or
relatives’) desire for revenge and the state is merely exacting vengeance on their behalf
to prevent private retaliation.

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 Secondly, it is asserted that there is a public need for vengeance. It is argued that
there is an instinctive demand which is active in every human being to retaliate. This
reaction is not only understandable but desirable as a socially acceptable outlet for our
aggressions. If there were no punishment our aggressions would become repressed to the
point when they might break out in an anti-social manner.
Thirdly, punishment is an expression of the community’s disapproval of the
defendant’s act. Punishment is a conventional device for the expression of attitudes of
indignation or resentment. The criminal should be censured and denounced for his wrong
act. We owe it to each other and to the values to which we are committed to respond to
wrongdoing.

Criticism
1. Two wrongs never make a right (revenge). We should only deter or
reform the offender.
2. Such views such as ‘the instinctive demand which is active in every human
being to retaliate ‘find little serious support today and have been alleged to
represent the breakdown of human intelligence and good will.

DETERRENCE:
This is a form of punishment meant to dissuade the offender from committing
crimes and also meant to deter others from committing the crime.
Unlike retributive theories, deterrent theories are forward looking in that they are
concerned with the consequences of punishment; their aim is to reduce further crime by
the threat or example of punishment.
R v Kumwaka wa Mulumbi & Ors [1932] KLR 147
Custodial Sentence
Custodial sentence imposed on the offender to deter both the offender and would
be offenders in general i.e. long prison sentences and flogging.
Thus, deterrence operates at two levels:
- Individual deterrence; and,
- General deterrence.

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 a) Individual Deterrence:
In the case of individual deterrence it is hoped that the experience of punishment
will be so unpleasant that the offender will not think of offending again. The task of the
sentence is therefore to look to the future and select the sentence which is likely to have
the most impact on the individual.

b) General Deterrence
Lawlessness may flourish when the probability of detection, apprehension and
conviction is low. Under this theory it is the threat of punishment that deters people from
committing crimes. At the legislative level, Parliament lays down penalties to threaten
those who might contemplate crime. At the sentencing level, offenders are punished in
order that others will be discouraged from committing crimes; this punishment is held up
as an example of what will happen if others engage in similar activities. Thus
punishment is used as a means of preventing crime and maintaining law and order.

d) REFORMATION/REHABILITATION:
To punish with the aim of rehabilitating the offender has constituted one of the
most developments in the penal theory. The aim is to secure conformity not through fear
(which is the more limited object of deterrence) but through some inner positive
motivation on the part of the individual. The process has been described as “improving
the offender’s character so that he is less often inclined to commit offences repeatedly
even when he can do so without fear of the penalty.
The object of rehabilitation is to make offenders “better persons” capable of
being reintegrated into society. Reformation aims at trying to regenerate the offender to
live a decent life. The goal of reformation is to rehabilitate the wayward offender by
providing him with skills that will help him earn money after he reforms. The arguments
for rehabilitation are the feeling of concern for the offender as a human being: the desire
to save him from criminal career and to help him redeem himself as a member of the
human family.
It is further argued that retribution is obsolete way of dealing with offenders. The
degeneration and humiliation of the human spirit can turn a man against fellow men. The

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effort, therefore, should be to give men those advantages that will help them keep their
feet on the right path – better education, more healthful dwellings and skilful training
Sometimes the court grants an absolute discharge or a conditional discharge or a
suspended sentence.
The release on parole by the President is another form of reformation.
This theory is based on moral considerations.

Principles of Sentencing
In meting out the sentence the court takes into account a number of principles
and factors:
2. That the sentence must fit the crime. Thus the sentence must be
commensurate (equal) to the crime.
a) If a sentence is excessive, on appeal the court will say this has come to us
with a sense of shock.
b) Reprobation must be avoided.
3. The maximum Penalty must be reserved for the most brutal or crude acts.
4. The first offender or one who shows remorse deserves leniency.
5. That the prevalence of mischief in any area must be minimised or eliminated.
The Magistrate will try to balance between the punishing of a first offender
and minimising the prevalence of crime in a given area.
6. There must be uniformity of sentencing across the country.
In T P v Tenson Chipeta (1970) ZR 83 (HC), the accused Tenson Chipeta was
charged with theft by servant contrary to sections 243 and 249 of the penal code. He
was convicted and sentenced to 9 months and the magistrate ordered 3 months of the
sentence to be confirmed by the High Court. According to section 8 (5) (i) a
magistrate cannot pass a sentence of more than 6 months without confirmation and
section 8 (5) (ii) a magistrate was to take into account the intrinsic value if the
subject matter antecedents of accused his youth and conduct at trial with regard to
plea. The law was confirmed in R v Enock Lamba 4 NRLR 226

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 At page 85, the High Court restated the principles of sentencing to be taken into
account when sentencing offenders. CHOMBA Ag J said:
“The sentence imposed in this case comes to me with sense of shock. “In the case
of R v Edward Nsokolo 2 N.R.L.R 85, the following were given as principles which
should guide a court when considering what sentence is to be imposed. They are:
(1) intrinsic value of the subject matter;
(2) antecedents of the accused;
(3) youth of the accused;
(4) conduct of the accused at the trial particularly with regard to his plea;
(5) Prevalence of the particular crime in the neighbourhood.”
The sentence was set aside and replaced by a 4 months sentence.

Characteristics of Crime
In order for a person to be criminally liable there must be proof of the elements
of a crime. At the base of the common law system is the concept of ‘ACTUS NON
FACIT REUM NISI SIT REA’ which means ‘THE MERE DOING OF AN ACT WILL
NOT CONSTITUTE GUILT UNLESS THERE BE A GUILTY INTENTION’.

Classification of Crimes
There are three Classifications namely:
i. Statute and Common law found in English Text books.
These are Common law crimes which were the sole creation of Judges of which
only two were in existence. The rest of the offences are found in statutes. In Zambia this
does not apply because Article 18 (7) states that:
“A person shall not be convicted of a criminal offence unless that offence is
defined and the penalty is prescribed in a written law.”
There is an exception of contempt of court and thus while of plausible value in English
law it is of little value in Zambia.
ii. Regulatory and Non regulatory offences
R.M. Jackson in his book ‘Enforcing the Law’ talks of real or traditional crimes
like murder and rape recognised by community and regulatory crimes which concerns

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the running of social services, maintenance of discipline on the roads. “Regulatory
offences are part and parcel of te legislation that deals with the powers of central and
local government, in running of the services and the conduct of industry, trade and
many occupations… Traditional crime usually involves a victim though there are a
number of exceptions….” Regulatory offences commonly do not require a victim i.e.
careless driving.
It is a useful classification but very wide.
iii. Treason, Treason felonies and Misdemeanours
Treasons are considered as the most serious offences of the felonies and the least
misdemeanours.
a. Felonies
Some wrong doings that are heinous classified as felonies. A felony is defined in
Section 4 of the Penal Code CAP 87 of the laws of Zambia. A felony is so declared by
the law and punishable with death or a custodial term of three years or more. Felony and
Misdemeanour are defined under section 4. The distinction between them is that a
person convicted of felony cannot be sentenced to fine alone, but to a fine in addition to
a period of imprisonment. See Section 26 (3) and (4).
For example:
Unlawful Wounding Murder Manslaughter Treason Forgery Robbery
Rape Indecent Assault Incest Bigamy Defilement Theft
Burglary House breaking
b. Misdemeanours
The lesser terrible offences are called misdemeanours and commission of
offences stipulated as such are punishable with a fine or a term of year’s simple
imprisonment as stipulated by the Act. For example:
Common assault Assault Occasioning Actual Bodily Harm Threatening violence
Unlawful assembly Sedition
c. GROUPING OF OFFENCES
Offences are grouped in the following categories:
i. Categories of offences:
Offences against the person, example:

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 Assault Unlawful wounding Murder Manslaughter
Offences against morality, example:
Rape Indecent Assault Defilement Incest
Offences against property, example
Theft Robbery Forgery Arson Malicious damage to property
Offences against public order, example:
Treason Misprision of Treason Unlawful assembly

SOURCES OF CRIMINAL LAW – Acts of Parliament, judicial precedents/ case law

In Zambia the sources of criminal law is based on English Common Law System.
The sources of law are:
(a) Customary law
This is the first and indigenous law of the tribes. It is not uniform and consists of
a variant with similar and broad principles in all the various tribal systems. Because the
application of customary law is restricted to customary law disputes like small claims in
tort and matrimonial cases it is not very important to lawyers. In customary procedure all
evidence inclusive of hearsay is admissible and the importance lay in the weight
attached to each particular item of evidence.
(b) Common Law of England
The Zambia legal system is a product of its history. As a former British
protectorate Zambia inherited the common law system by virtue of several laws that
refer to the law of England especially the English Law (Extension of Application) Act
Chapter and 11 of the Laws of Zambia. The former came into effect on 8 th March, 1963.
These provide for application of:
i. Common Law;
ii. Doctrines of Equity;
iii. Statutes which were in force in England by 17 th August, 1911; (being the
Commencement of the Northern Rhodesia Order in Council 1911)
and
iv. Any later statutes applied to Zambia.
(c) Statutes:

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 The Constitution CAP 1
Penal Code CAP 87
Criminal Procedure Code Cap 88
Acts applicable under British Acts Extension Act CAP 10 of the Laws of Zambia
Other Acts of Parliament
Subordinate legislation

(d) Books of renowned authority, e. g.:

Hatchard, J. and Ndulo M. (1994) Criminal Law and Criminology in Zambia,
Lusaka: Government Printers.
Hatchard, J. and Ndulo M. (1993) A Case Book on Criminal Law, Lusaka:
Government Printers
Smith J. C., & Hogan, B., (2002) Criminal law, London: Butterworths.
Kulusika, S.E., (2006) Text, Cases and Materials on criminal law in Zambia,
Lusaka: UNZA press
Kulusika, S.E., (2005) Criminal Law in Zambia Cases and Materials, Lusaka:
Multimedia Publications.
Ormerod, D., (2005), Smith and Hogan Criminal law: cases and Materials, 9th ed.
OUP Oxford
Phipson on Evidence, (Any Edition,) London, Sweet & Maxwell
Smith J. C., (1997) The Law of Theft, London: Butterworths.
(e) Case Law/Judicial decision
(f) Customary law which is not repugnant to natural justice. See R v Mubanga
(1959) 11 R & N 169.
Read Munalula M.M. Legal Process: Zambian Cases, Legislation and Commentaries
pp76-90

THE STATUS OF AFRICAN CUSTOMARY LAW UNDER CRIMINAL

JUSTICE SYSTEM
There are contradiction between the English common law system that are now
statutory in Zambia and the African Criminal Justice. Because of these problems some

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offences have become prevalent and some have become the subject of high public outcry
leading to higher sentences being imposed on the offenders. See Penal Code
Amendment Act No 15 0f 2005.

Bigamy s. 166 PC CAP 87

Under the Marriage Act CAP 50, a person who is married under that law cannot
marry another person. A man who is married commits adultery if he marries another
woman. Under customary Law a man is allowed to contract polygamous marriages to as
many women as he wishes for as long as he is does not decide to get or is married under
the Act. The Marriage under the Act is only to one woman and supercedes the marriage
under custom.
TP v Nkhoma (1978) ZR 4
T P v Chitambala (1969) ZR 142 (HC)
Defilement s. 138
Under the Penal Code it is a criminal offence to have carnal knowledge of a girl
under the age of 16. In rural areas of Zambia, marriages of girls under the age of 16
years are common.
R v Chinjamba 5 NRLR 384
Failing to provide necessaries of life
Under the Penal Code failing to provide necessaries of life is a felony. In some
customs there is no requirement for the husband to provide necessaries of life as each
wife and children are required to provide for the family.
Abduction of a child under the age of 16 is an offence under the penal code but
in Tonga custom it is allowed to abduct a girl and later formalise the marriage.
Theft under section 265 of the Penal Code is a felony but in some customs a brother is
entitled to take his brothers property and use it as his.
Murder section 200 of the Penal Code
While murder is a crime under statute and customary law the sanction in form of
compensation is prevalent under custom and penal under statute. However, death cannot
b ruled out under both systems.

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2. THE PENAL SYSTEM IN ZAMBIA
Courts of Criminal Jurisdiction
a. Supreme Court
b. High Court
c. Sub ordinate Court

Judicial and prosecution system

The Attorney General
The State Advocates
The Public and Private Prosecutors

3. PRINCIPLES OF CRIMINAL LIABILITY

The Elements of a crime
In order for a person to be criminally liable there must be proof of the elements
of crime. At the base of the common law system is the concept of ‘ACTUS NON FACIT
REUM NIS SIT REA’: ‘THE MERE DOING OF AN ACT WILL NOT CONSTITUTE
GUILT UNLESS THERE BE A GUILTY INTENTION.’ The elements of crime are:
i. The unlawful act (Actus Reus) i.e. taking without consent,
shooting, stabbing, etcetera.
ii. the blameworthy state of mind (Mens Rea) i.e. intention to
permanently deprive, malice aforethought, intention to hurt or harm or maim.
I. Actus Reus – The illegal act complained of.
a. The accused must be proved to have perpetrated the act complained of.
Sufficient evidence must be adduced to establish that fact. If he acted
with others his role must be defined.
b. The act must be unlawful
The act complained of must be contrary to law. However, some acts
which are not criminal might be deemed unlawful. For instance it is
morally wrong for an expert swimmer to watch a child drown. It is

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 justifiable for a person to kill somebody in self-defence or for a law
enforcement officer to kill a suspect in the process of enforcing the law or
in executing a death sentence in extra-judicial executions.
c. The act should be voluntary
The act must be executed voluntarily in order for person to be held liable. If
done involuntarily it would not be punished. Voluntariness is part of the
actus Reus.
In Bratty v A – G (1963) AC 386 at p. 409 Lord Denning said:
“No act is punishable if it is done involuntarily. An act done by the
muscles but not by the mind is called automatism and it is no act at all.”

II. Mens Rea

Mens Rea is the intent proscribed to the accused at time of commission of the
offence.
It is the blameworthy state of mind of the accused. The prosecution must prove
that the accused intended to commit the crime. In some cases intention may suffice but
in others a person acting negligently, recklessness ma suffice. Yet in others, the act may
not be blameworthy but because they are regulated by statute a person is found liable
because the offences are of strict liability, for instance, careless driving. Thus mens rea
refers to the state of mind of the accused when committing the actus Reus. Criminal
Law has classified the many different attitudes of the accused’s mind into four
categories namely:
- Intention
- Recklessness
- Negligence
- Blameless inadvertence.
The first two has to do with the accused’s mind only and are therefore subjective
standards (i.e. they relate to the individual defendant) where as the next two are
objective (i.e. they relate to something outside the individual).
Specific and Basic Intent

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 Crimes of specific intent are crimes in which the mens rea of the offence extends
beyond the actus Reus, while in crimes of basic intent the mens rea goes further thus
extending the elements of the crime. For instance, Assault is a crime of basic intent
whose actus Reus ‘causing apprehension of immediate force’ the mens rea is intention
or recklessness to cause such recklessness. There is therefore no mens rea extending
beyond the actus Reus required. But in an assault with intent to resist a lawful arrest,
contrary to section 250 of the Penal Code CAP 87 is a crime of specific or ulterior intent.
The actus reus is the same as that of Common Assault, namely; causing apprehension of
immediate force to ones person. Now the mens rea is twofold – there must be mens rea
for assault and in addition intent to resist arrest. Therefore mens rea relates to all parts
of the act together with any ulterior intent prescribed by the law which the prosecution
has to prove in cases like Burglary. Thus “mens rea is intentions or recklessness with
respect to all the consequences and circumstances of the accused’s act which
constitute the actus Reus together with any ulterior intent which the definition of the
crime requires”.
DPP v Smith [1961] AC 290
Hyam v DPP [1975] AC 55; [1974] 2 ALL E R 41
“Actus non facit reum nisi mens sit rea” means ‘the mere doing of an act will
not constitute guilt unless there be a guilty intention’.

III. Causation – The coincidence of mens rea and actus Reus

a. R v White [1910] 2 K B 124; [1908-10] ALL E R 340
Test is subjective - Foresight & reasonableness
b. R v Cunningham [1957] 2 Q B 396 -Test is subjective, Gas pipe
broke, Affected neighbour - Cunningham’s Recklessness.
c. Caldwell (1981)-Test is reckless, (Caldwell’s recklessness) a much
wider and objective definition of recklessness was introduced to cover situations the
resultant consequence would have been obvious to a reasonable man even though it did
not occur to the accused. He deliberately started a fire at victim’s hotel. He claimed that
he had not realised that someone was in the hotel and not realised that someone would
die.

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d. Maloney v R. (1985) - Test is subjective, Playing game on contest to
see who was fast, with a loaded gun, he killed his step father. The Court used
reasonableness and foresight to determine his criminal liability. Lord Bridge suggested
that the jury should be guid7ed on the issue of intention that:
(1) Was death or really serious injury a natural consequence of what the accused
did?
(2) Did the accused realise that death or really serious injury was a natural
consequence of what the accused did?
If the answer to both questions was yes then it was not conclusive proof intention but
something from which the jury might infer the accused intended death or really serious
harm.

e. Hancok and Shakland (1986) the defendant dropped concrete block onto a
motorway from the bridge in order to block the road and prevent a taxi carrying a
working miner to work during a miners’ strike. One block hit the windscreen killing the
drier of the taxi. At the trial on an indictment for murder the trial judge directed the jury
using the guidelines in Maloney v R. (1985). Their Lordships held that the guidelines in
Maloney were defective. The Jury should be asked to consider:
(1) Was death or really serious injury a natural and probable consequence of the
accused?
(2) Did accused realise that death if really serious injury was a natural consequence
of what accused did?
The jury should have been instructed that: the more probable it was the more likely it
was that the accused foresaw it; and the more probable the accused realised it to be, the
more likely it was that he intended it. From this the tribunal of fact is assisted whether
to draw the inference that the accused intended death or really serious harm.
Read the following:
Nedrick (1986)
Woollin (1998)
Walker and Hayles (1990)

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BURDEN OF PROOF AND STANDARD OF PROOF
The burden of proof is the onus of proving a criminal charge beyond reasonable
doubt against the accused and it always rests upon the prosecution to i.e. he who alleges
must prove. This is also known as the legal burden. The accused is innocent until
proven guilty, article 18 (2) (a) of the Constitution. However, in exceptional
circumstances the law requires the accused to prove his assertions i.e. where accused
pleads insanity but proof in this case is on a balance of probability.

The standard of proof

In criminal case the stand of proof on the prosecution to prove that accused
committed the offence is beyond reasonable doubt. It is a higher standard than the proof
on a balance of probabilities which the plaintiff must prove in civil matters. In criminal
cases proof beyond reasonable doubt is not proof beyond a shadow of doubt.
In Woolmington v DPP [1935] AC 462 a man had a dispute with his wife. The
wife left him. He took his gun to try to persuade her to get back or he would kill himself.
In the process the gun went off and killed his wife.

Strict liability
For some crimes the law does not require mens rea in respect of either an
element of the actus reus or a particular circumstance or the required consequence.
There is however a presumption that mens rea is required as an essential
ingredient of an offence.
Sweet v Parsley (1969) (1969) 1 ALL E R 347; (1969) 2 WLR 470;
B v DPP (200), a 15 year boy was charged with having incited a girl under the age of 14
years to commit acts of gross indecency with him. The House of Lords following Sweet
v Parsley held that for a conviction on that offence the prosecution had to prove an
absence of genuine belief on the part of the accused which had not to be on reasonable
grounds.
Read also R v K (2001)

Regulatory offences:

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 These offences are purely regulatory where no moral issue is at stake i.e. sale of
food.
Read the case of Patel's Bazaar Limited v T P (1965) ZR 84 (CA); on sale of
unwholesome bread.
Public danger Offences:
On the protection of the public as this is of paramount importance to a state, the
highest standard of care is felt necessary. This covers pollution cases, dangerous drugs,
weapons and pollution cases.
In Steele (1993) the defendant was convicted on a charge of possession of a firearm
without a certificate under the British Firearms Act 1968. His defence was that he had
been gi

Gven a holdall containing a sawn off short gun minutes before the police apprehended
him. On appeal his conviction was confirmed as it was irrelevant that he did not know or
even could not reasonably have known what the bag contained.

a) Dangerous drugs
In this respect dangerous drug offences are meant for protection of public safety.
Marriot (1971) 1 ALL E R 595; (1971) 1 WLR 187; 55 Cr App Rep 82 in which the
defendant was found in possession of a penknife which he knew had traces of a
substance that turned out to be a prohibited drug. The court said the defendant needed
the mens rea with regard to possession of a substance on the knife but no mens rea no
mens rea with regard to the circumstance that the substance was a prohibited drug. It was
irrelevnt that he did not know or could not reasonably have known that the substance
was a prohibited drug. See Sweet and Parsley on the limits of this policy on dangerous
drugs cases.
b) Road Traffic Offences
Some road traffic offences where strict liability is imposed are of regulatory,
quasi –criminal in nature. For example, careless driving and being in charge of a motor
vehicle while under the influence of drink or drugs; sections195 and 197 of the Roads
and Road Traffic Act Cap 464.

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c) Pollution
Crimes of pollution are designed to protect the public.
d) Sale of food
This is also regulatory and compliance is kept under control by strict liability.
Patel's Bazaar Limited v T P (1965) ZR 84 (CA)
In Smedleys Ltd v Breed (1974), the defendant company was convicted of selling food
which was not of substance demanded by the purchaser. The House of Lords held the
defendant company liable even though no other practicable preventive measures could
have been taken and the standard of care taken at the factory was extremely high.

4. PARTIES TO CRIME
In certain cases there are several persons involved in the commission of an
offence. It follows that it is not only the perpetrator but other participants may also be
liable. They are called principal offenders or offenders in the first or second degree.
They may be accessories before or after the fact. They are normally jointly charged.
Where two or more parties commit a crime jointly, each party plays a specific role. The
Criminal Law in Zambia identifies five common roles played by principal offenders as
follows:

a) Principal offenders
The principal is the main perpetrator who commits the actus reus or the
substantial party of the act. It is possible to have more than one principal if more than
one person is responsible for the act. The question is whether the person contributes to
the actus reus voluntarily rather than by merely aiding and abetting the commission of
the crime.
A principal may not directly carry out the commission of the offence himself but
he may use an innocent agent.
i. the perpetrator who is the person who actually commits the offence; for
example, he steals, shoots to kill or wounds. Section 21 (1) (a) of the Penal Code CAP
87
The other four are also known as secondary participators:

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ii. the aider or an enabler is the person who assists the principal in the commission
of a crime; for example, the one who holds the victim while the others rob or stab him or
the person who facilitates crime by provision of transport like the taxi-driver used as an
escape vehicle in a robbery or stock theft. Section 21 (1) (b) of the Penal Code CAP 87
iii. the abettor is the person who encourages or urges the perpetrator or other
participants, and the principal draws encouragement from him. Section 21 (1) (c) of the
Penal Code CAP 87
In Wilcox v Jeffrey [1951] ALL E R 464; [1951] 1 T L R 706; the accused was
present at a concert given by the person who was performing in the country in
contravention of the Aliens Order 1920. He had earlier met the performer at the airport
and afterwards praised the performance in a magazine/ periodicals of which he was the
proprietor. The Court held that to be sufficient encouragement to constitute secondary
participation.
iv the counsellor is the one who provides advice to the perpetrator or other
participants prior to the commission of the offence and may not be present at the scene
of the crime. Section 21 (1) (d) of the Penal Code CAP 87
In Calhaem (1985) the defendant was charged with murder by counselling
another to commit murder. The other testified that despite the accused’s instructions he
had no intention to commit murder but when he got to the deceased’s flat he had gone
‘berserk’ and killed her. The judge directed the jury that counselling involved ‘putting
somebody up to something’ and that the acts were carried out within the scope of advice.
On appeal against conviction on the ground that there had to be connection between the
counselling and the act, the court decided that there was no such requirement.
v. the procurer who provides the means for use in the commission of the offence;
i.e. provision of a gun or ammunition of aggravated robbery. It is not necessary that the
procuring was without knowledge but procuring does imply causal connection.
Mere presence at the scene of crime and omitting to stop the commission of the
offence or not reporting it is not being a participant. Thus being present at the scene of
murder does not make one guilty of murder unless he is a participant and was aware a
weapon will be made use of during the commission of the crime.
National Coal Board v Gamble [1959] 1 Q B 11

19
 If one is charged with counselling or procuring in a criminal offence and the
perpetrator is acquitted so should all parties also be acquitted of that offence or be
charged with some other offence. Read sections 389 and 399 of the Penal Code CAP 87;
see also the case of Shindano v TP (1972) ZR 155.
At common law the perpetrator was known as the principal offender while the
other four were known as accessories.
Accessories after the fact are persons who assist the participants of the crime to escape
the course of justice by for example hiding them.
R v Levy [1912] 1 KB 158
The one who receives goods known to be stolen which are expected to be
exhibits in court is known as an accessory after the fact. Read Section 397 of the Penal
Code CAP 87. However under section 397(2) of the Penal Code, a spouse who helps
another spouse to escape being prosecuted is not an accessory after the fact.
The maximum sentence for an accessory after the fact in relation to a felony is 3
years and under section 217 an accessory after the fact to murder is guilty of a felony
and is liable to imprisonment for 7 years.

b) Doctrine of Common Purpose or Common Design

When two or more persons commit an offence with a common design, the
general rule is that they must be charged with the same offence and must be punished in
the same way as the perpetrator. A joint offender can be given a lesser penalty if he can
prove to the court that he did not desire the result of the conspiracy. In this respect he
bears the evidential burden of proving that he did not desire the serious crime.
Read:
Kalunga Petrol v TP (1987) (SCZ) No 38
Haonga & Ors v TP [1976] Z R 200
Mwape v the People (1976) Z R 160
Powell (1997)
Stewart and Schofield (1995)
However, a person who uses a child under the age of 8 years of or some mentally
incapacitated to commit an offence is guilty of the offence as if he actually committed it

20
himself. The acquittal of or absence of the principal party does not provide problems
provided an offence had been proved, the secondary participant can be convicted.
If the perpetrator is acquitted because the actus reus has not been proved then
there can be no secondary participants.
In Thornton v Mitchell (1940) 1 ALL E R 339, a conductor was charged as a
secondary offender for assisting the driver to reverse. The diver was acquitted on there
being no carelessness and therefore there was no aiding and abetting. If there is no mens
rea or the accused advances a valid defence there is an acquittal.
Read:
Cogan and Leak (1976)
R (1992) 1 A C 593
Mwape v TP [1976] ZR 160
Earnest Mwaba v TP [1987] ZR 12
Smith v Desmond [1965] 1 ALL E R 975

5. INCHOATE OFFENCES
Sedition/incitement, attempts and conspiracy comprise the preparatory stages of
other criminal offences. The penal code lists them as substantive offences in themselves.
The main offence need not be committed. In some cases it is unlikely that the main
offence will be committed and in others circumstances render the commission of the
offence impossible.
i. SEDITION
Seditious Acts: ss 57-58, 60-61 of the Penal Code CAP.87
The Penal Code provides for seditious intention. In other words, the offence of sedition
cannot exist without a seditious intention. Seditious intention is defined in section 60 of
the Penal Code and the same section provides for instances that amount to seditious
intention. The proviso to the said section does not make seditious an intention to:
a) Show that the Government has been misled or mistaken in any of its measures;
b) Point out errors or defects in the Government or Constitution or in legislation or
administration of justice with a view to the reformation of such errors or defects;

21
 c) Persuade the people to attempt to procure by lawful means the alteration of any
matter as by law established; or
d) Point out, with a view to their removal, any matters which are producing or
tending to produce feelings of ill will or hostility between different classes of the
population of Zambia.
Thus constructive criticism of errors or defects of Government is not seditious
intention. Persons have the right to discuss any grievance or criticize, canvass and
censure the acts of Government and their public policy. They may even do this with a
view to call attention to the weakness of a Government provided they keep within the
limits of fair criticism.
The British call sedition Incitement. The inciter tries to hep, influence,
encourage, threaten or pressurise another to commit a crime. The crime incited may or
may not be committed; if it is committed the inciter becomes a secondary participant.
Sedition/incitement is a crime of specific intent. The accused must intend the full
offence to be committed.
Under common law there can be incitement it at the time of the incitement the
commission of the offence was possible.
In Fitzmaurice (1983) The Defendants father had asked him to recruit someone to rob a
woman on her way with salaries to a bank. Believing to take place, the Defendant
recruited B and encouraged him to take part in the proposed robbery. In fact the
proposed robbery was not really intended to occur but was part of the defendant’s
father’s plan to enable him collect reward money for informing on a (in fact false)
robbery. The defendant was convicted for incitement to rob. On appeal the court held
that:
(1) it is no offence to incite someone to commit an offence which at the time of the
incitement is impossible of commission e.g. inciting a person who is not pregnant to
have an unlawful abortion);
(2) in this case the robbery, though unlikely was no an impossibility at the time of the
defendant’s incitement of B.
Unlike conspiracy and attempts to commit the impossible, sedition is still subject
to common law.

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R v. Chona (1962) R & N 344
DPP v. Ngandu and Others (1975) ZR 253 (SC)
DPP v. Chike Obi (1961) All NLR 186
Boucher (1951) SCR 265;
Holland (1914) 33 NZLR 931;
Ambrose v Hickey (1922) NZLR 96;
R v Card (1970) 54 Cr. App. R. 499;
Smith & Hogan: Chapter 20.

ii. ATTEMPTS s. 390

When a person intends to commit and offence and he begins to put his intention
into execution by some overt act but does not complete the offence and get the intended
results, he is deemed to have attempted to commit that offence. See Section 389 (1) of
the Penal Code. To attempt to commit an offence means that the offence is not complete.
Attempts are generally misdemeanours unless otherwise stated to be a felony.
For example,
1) Attempt to murder is a felony under section 215 of the Penal Code:
“Any person who-
(a) attempts unlawfully to cause the death of another; or
(b) with intent unlawfully to cause the death of another does any act, or omits to
do any act which it is his duty to do, such act or omission being of such a
nature as to be likely to endanger human life;
is guilty of a felony and is liable to imprisonment for life.”
2) Attempt to commit incest is a felony under section 159 (4) of the penal code:
“Any person who attempts to commit incest commits a felony and is liable to
imprisonment for a term of not less than ten years and not exceeding twenty-five
years.”
3) Attempt to commit offences under the Act, section 11 of the Narcotics Drugs and
Psychotropic Substances Act CAP 96
S. 389 define attempts as follows:

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“ (1) When a person, intending to commit an offence, begins to put his intention into
execution by means adapted to its fulfilment, and manifests his intention by some
overt act, but does not fulfils his intention to such an extent as to commit the offence,
he is deemed to attempt to commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender does
all that is necessary on his part for completing the commission of the offence, or
whether the complete fulfilment of his intention is prevented by circumstances
independent of his will, or whether he desists of his own motion from the further
prosecution of his intention.
 It is immaterial whether the crime was intended to commit was impossible to
commit. For example, A person gets explosives and breaks into a building in order to
steal cash from a safe. He tries to blow the safe but the safe remains intact. He is
arrested and charged an attempted theft.
 Activities such as getting equipped, reconnoitring the scene, lying in wait, will not
amount to more than preparation.
 A person must move from the role of preparation into that of execution or
implementation. Geddes (1966) In the case of Tosti (1977) D had oxyacetylene
equipment; he went to scene of planned burglary, hid the equipment in a hedge,
approached the door of a barn and examined the padlock on it. This when they
realised that they were being watched so they ran away. On appeal against
conviction for attempted burglary, the court held dismissing their appeal that they
had done an act whish showed that they had actually attempted to commit the
offence. The judge had been correct to leave the issue to the jury.
 In attempts the mens rea of intention only will suffice
In Khan (1990) the defendant was charged with attempted rape of a woman. He was
reckless as to whether she consented or not. The Court of Appeal dismissed the appeal
and held that the law required intent only and any consequence.
 Attempt is a crime of specific intent.
(3) It is immaterial that by reason of circumstances not known to the offender it is
impossible in fact to commit the offence.”
Read: Kalimukwa v TP (1971) Z R 85 (HC)

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iii. CONSPIRACIES s. 394, 395 of the Penal Code CAP 87
Conspiracy is a widest crime in the Penal Code CAP 87. It is a common law
crime and one of the oldest. According to the British conspiracy is governed partly by
Common law and partly by the Criminal Law Act 1977. This Criminal Law Act 1977 is
not applicable in Zambia see British Acts Extension Act CAP. 10. However common
law is applicable under CAP 11
The Common Law definition is:
“An agreement between two or more persons to effect (bring about) an unlawful
purpose or a lawful purpose by unlawful means.”
For example, not a crime but it is morally wrong corrupting public morals. Shaw v DPP
(1962) A C 220: (1961) ALL E R 446
Section 394 states that:
“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 Zambia would be a felony…”

Actus Reus
The Actus Reus consists of:
- Agreement
- by two or more persons
- to effect an unlawful purpose
- to corrupt public morals or ire public decency.

There must be an agreement between two or more persons to:

- commit a criminal offence;
- to defraud somebody; or
The stage of negotiation is not agreement; R v Walker (1962) Crim L R 458.
The fundamental nature of this offence is the agreement itself; once this is
proved, no further conduct is required. It is not punishing ‘evil thoughts’ only but also
requires some physical manifestation of the evil intention by proof of the agreement.
This is because collaboration between persons or groups makes it more likely for the

25
actual crime to be committed by at least one of them. Thus a dangerous collaboration
that reveals a larger criminal enterprise accurately describes the conspiracy.
It is possible to conspire verbally as evidence can be tapped
Under Part XLIII of the Penal code a person can conspire to commit a
felony, a misdemeanour or under section 396 a person can conspire to commit felonies
which are not criminal.
Conspiracy to murder section 219 of the Penal Code CAP 87
Conspiracy to commit Drug Offences section 12 of The Narcotics Drugs and
Psychotropic Substances Act CAP 96

396. “ Any person who conspires 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, Statute, or Order;
or”
Under this subsection there must be a deliberate action to defeat an act or law. It is
political.
“(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”
There must be either assault, defamation or depreciate value of any property. The
malicious torts of Fraud and defamation; defamation is generally not a crime unless you
have libel and slander.
“(c) to prevent or obstruct the free and lawful disposition of any property by the
owner thereof for its fair value; or”
The conspiracy is to tell lies to prevent someone to sell at a fair price and open
market.
(d) to injure any person in his trade or profession; or
See Chewe and Ors v R (1958) R & N 455 – Conspiracy to boycott beer hall.
(e) to prevent or obstruct, by means of any act or acts which if done by an
individual person would constitute an offence on his part, the free and lawful exercise
by any person of his trade, profession, or occupation; or

26
Under this Sub-section, it is unlawful to for anyone in profession or trade to prevent
competition and conspire with another to stop competition. The competition must be
reasonably fair.
(f) to effect any unlawful purpose; or
(g) to effect any lawful purpose by any unlawful means;
is guilty of a misdemeanour:”
The Proviso exempts an agreements or combinations by two or more persons to
do or procure to do any act in consideration or furtherance of a trade dispute, under the
Industrial and Labour Relations Act, CAP 269, acts which if committed by one person
would not be punishable as a crime.
There must be an agreement and two or more person. One cannot conspire with
one’s spouse. For purposes of conspiracy, husband and wife is one person. The
agreement must be between individuals but not corporations; R v McDonnell [1966] 1 Q
B 233. Under section 394 the conspiracy has got to be of an offence in Zambia and in
the other country. For example homosexual is an offence in Zambia and not in England.

Conspiracy at Common Law

Conspiracy at Common Law is applicable to Zambia by virtue of and CAP 11.
Common Law Conspiracies:
- Conspiracy to defraud
- Conspiracy to corrupt public morals
- Conspiracy to outrage / ire public decency

Conspiracy to defraud
Conspiracy to defraud involves two types both of which require proof of a design
to use deceit or dishonesty means. One involves economic loss and deprivation of
some property interest.
The other is to cause a public officer perform his duties contrary to his public duty.
Read:

27
Scott v MPC (1975) – copy films without authority and without payment of fees. The
House of Lords held him liable for conspiracy to defraud and that it was not necessary to
show deceit when other means of dishonesty are employed.
Wai Yu Tsang (1992) - Agreed with others not to enter certain dishonored cheques to
save the band reputation
Hollinshead (1985) – manufactured and marketed devices to be fitted to the meter to
falsify electricity consumption
There are two types of conspiracy. One type is called a wheel where there is a
central figure who conspires with one to rob and one to laud (clean i.e. in Swiss banks)
the money. Several of them are involved but they do not know each other but the main
man who is the hub of the conspiracy knows them. The other type is also a chain
conspiracy where you have one person who knows one man and that man knows the
former and another man. This is chain sabotage:
A → B → C → D → E → F → G.

Conspiracy to corrupt public morals

Shaw v DPP (1962) A C 220; (1961) ALL E R 446 (1963) – He published a
‘Ladies Directory’ containing Prostitutes details. He sold the magazine to invite people
to ring prostitutes. He was charged with conspiring with Prostitutes to corrupt morals.
By selling the directory it showed conspiracy to publish a directory of prostitutes.
Knuller (Publishing, Printing and Promotions Ltd) v DPP (1973); (1972) 2 ALL
E R 898; Advertisement in Contact Magazine aimed at homosexuals. House of Lords
held this was Conspiracy to deprave and corrupt of the readership.

Conspiracy to outrage/ire public decency

This is where persons conspire to exasperate community decency.
Read:
Gibson (1990) – Included in his work of art earrings from freeze-dried foetuses, charged
with, and convicted of outraging public decency.

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Knuller v DPP(1973) ); (1972) 2 ALL E R 898 defined outranging public decency as
“…considerably beyond offending the susceptibilities of, or even shocking, reasonable
people.”

Conspiracy to defile – see section 150 of the Penal Code CAP. 87. this of strict liability
as no knowledge is required by the section.

Mens Rea
For all conspiracies, Knowledge of all facts that make the agreement criminal or
unlawful is the Mens Rea. For statutory conspiracy the mens rea is intention and not
recklessness. Knowledge or belief is required as to as to circumstances. This makes it a
crime of ulterior or specific intent.

6. DEFENCES
i. IGNORANCE OF THE LAW
S. 7 PC. States that Ignorance of the law does not afford an 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. All men are presumed
to know the law of their country and of other jurisdictions.
The general rule is that ignorance of the law is no defence. The Latin maxim for
this is “ignorantia juris quod quisque scire tenetur non excusant” which means
“ignorance of the fact excuses, but ignorance of the law does not excuse.” If it were to
be an excuse no one will be convicted.
In Bilbie v Lumley the judge said,
“Everyman must be taken to be cognizance of the law; otherwise there is no
knowing to what extent the excuse of ignorance might be carried. It would be argued
in almost every case”
In R v Bailey (1800) Russ & N 1, a sailor was charged and convicted of
contravening an act of Parliament enacted while he was away at sea. He pleaded
ignorance of the law but his defence failed. Bailey was found guilty of contravening the
law enacted while he was at sea.

29
 An exception to this rule is when the law makes knowledge an element of the
offence. For example if the statute states that: ‘Any person who knowingly…’
R v Esop (1836) m 7 C & P 436.
All men are presumed to know the law.

ii. BONA FIDE CLAIM OF RIGHT (s. 8 of the PC)

This defence only relates to crimes involving PROPERTY. It is usually applied
in cases of theft; however there is judicial authority that it can apply to malicious
damage as well.
S.8 of the Penal Code CAP 87 provides that:
“A person is not criminally responsible of an offence relating to property, if the
act done or omitted to be done by him was in the exercise of an honest claim of right
and without intention to defraud.”
There must be bona fide belief held in good faith. He must have belief that he had
a right to do as he did not a belief that his act is no crime.
Thus the act must be done with
a) AN HONEST CLAIM OF RIGHT, AND
b) WITH NO INTENTION TO DEFRAUD
There must be some belief in a right against which the person holds the property
on condition that the right will be met.
In R v Malamula (1962) R & N 553; two people, accused and the complainant
were involved. Accused owned an oxcart which he hired to the complainant at a fee.
When complainant brought back the oxcart he paid the hire fee, but a pump was missing
from the oxcart. Accused demanded compensation which was not forth coming so he
went to complainant’s house and collected a bicycle belonging to the complainant. He
was convicted of theft and the High Court quashed the conviction for the reason that the
public prosecutor had failed to negative the accused’s defence of claim of right to keep
the bicycle to enforce payment.

R v Halford (1868) 11 Cox C C 88

30
 The holding in this case was that where an accused has a claim of right he could
not be held responsible of an offence.
In R v Wade (1869) 11 Cox C C 549; the accused kept umbrella until he would be
paid.
He retained an umbrella he had repaired until upon being paid for his labour.
In Matiya Mwachilama v TP C.A.Z. Appeal No. 61 of 1972; the accused was
convicted of stock theft in the High Court after he had kept cattle that had strayed on to
his land and eaten his crops. He believed that he had right to keep them as he could not
find the owner and he had lost his maize. In allowing the appeal the Court stated that
“the defence of Bona fide
He detained cattle in order to be compensated for his crops that were eaten.
With malicious damage this defence can be proved that:
a) the accused acted in bona fide exercise of a supposed right;
b) did no more damage than would reasonably be necessary for its assertion.

Look up Webb v Stanfield [1966] Crim. L. R. 449; R v Benard (1938) 2 K B 264;

R v Smith (1974) 1 ALL E R 632; R v Clem (1898) 1 Q B 566 and, Soko v R [1961] R &
N 847

iii. Intention and Motive - Section 9 of the Penal Code CAP. 87

Unless an intention to cause a particular act is expressly declared the reason or
motive for causing result intended by the act or omission is immaterial. unless the statute
that creates the offence makes it an element of that offence. Under section 9 (1) intention
and motive is a defence where an act occurred independent of his will except where
negligence is an element of the offence. R v Matengula 5 N R L R 148;
Under section 9 (3) the reason or motive for causing result intended by the act or
omission is immaterial unless the statute that creates the offence makes it an element of
that offence. For example section 137 (3) (a) provides for an offence where indecent
curiosity is an element of the offence.
R v Serne (1887) 16 Cox C C 311;
Under Section 9 (2) Intention and motive is a defence to cases of specific or ulterior
intent or omission stated as an element of the offence.

31
Section 137 (3) (a) and (b) stipulates that:
“(3) Any person who is found in any building or dwelling-house or in any verandah
or passage attached thereto or in any yard, garden or other land adjacent to or within
the curtilage of such building or dwelling-house not being a public place-
(a) for the purpose of and from motives of indecent curiosity gazing at or
observing any woman or girl who may be therein while in a state of undress or semi-
undress; or
(b) with intent to annoy or indecently to insult any woman or girl who may be
therein;
is guilty of a misdemeanour and is liable to imprisonment for one year.”

R v Smith (1960) 2 Q B 423;

In R v Windle (1952) K B 826 motive was irrelevant.

iv. MISTAKE OF FACT - section 10 of The Penal Code CAP. 87

For this defence to succeed the accused must show that he/she acted or omitted to act
under an honest and reasonable but mistaken belief in the existence of the state of
affairs. The mistake must be of fact not law. It must be an honest belief and it must be
reasonable and on the existence of the facts as he saw them it would not amount to a
crime. See Fabiano Kinene & Ors., (1941) (EACA) Belief in witchcraft is unreasonable
and cannot be taken as a reasonable belief for defence of mistake of fact to succeed. See
also R v Matengula 5 N R L R 148; Chabijana Kajuna s/o Mbake v R 12 EACA 104;
Younghusband v Luftig [1949] 2 ALL E.R. 72 P. 80 or [1949] 2 KB 54. Read Wilson v
Hiyanga (1951) 2 ALL E R 237
Read also the proviso to section182 and 137 (2)
The accused must have a ‘BELIEF IN THE EXIXTENCE OF THINGS’ which
was held ‘HONESTLY AND REASONABLY.’
DPP v Morgan (1976) AC 182, it was held that a mistaken belief that the woman
he had raped consented was not a mistake of fact at all. The question public importance
was ‘whether in rape a defendant can properly be convicted notwithstanding that he in
fact believed the woman consented, if such belief was based on reasonable grounds.

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Mistake of fact is not unlimited but a qualified defence. The section states that the
accused is not criminally responsible “to a greater extent than if the real state of things
had been such as he believed to exist”. That is if the accused has made a mistake but
committed a crime on the facts AS HE THOUGHT EXISTED he will be convicted.
The mistake must be reasonable and must be a mistake of fact not law.

v. MENTAL INCAPACITY/DIMINISHED RESPONSIBILITY

The general rule is that every adult person is presumed to be sane until the contrary is
proved.
Macnaghten rules s. 11 of the Penal Code.
 INSANITY s. 12
Insanity as a defence is governed by the principles laid in McNaghten’s case
(1843) 10 C & F 200.
(1) Everyman is presumed sane until the contrary is proved. Section 11 of the
Penal Code. The onus of proof lies with the defence and such proof is on a
balance of probabilities.
(2) To establish a defence on the grounds of insanity it must be clearly shown
that, at the time of committing the act:
- the accused was labouring under 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, that he did not know he was doing what was
wrong.
Thus it has to be shown that at the time of the commission of the offence the accused
was SUFFERING FROM A DISIEASE AFFECTIG HIS MIND to that he was
INCAPABLE OF KNOWING THAT HE OUGHT NOT TO DO THE ACT OR
OMMISION.

Disease of the Mind

The courts have defined disease of the mind differently from the medical definition.

33
 R v Kemp (1957) 1 QB 399 [1956] 3 ALL E R 249; the defendant suffered from
arteriosclerosis which causes him to have temporary black outs. He attacked his wife
with a hammer causing her grievous bodily harm. The court held that a disease of the
mind was any disease affecting the ordinary faculties of reason, memory and
understanding including the example of Kemp’s arteriosclerosis. A disease of the mind
can be temporary or permanent, curable or incurable.
R v Sullivan (1983) the defendant had an attack of psychomotor epilepsy.
Doctors said he probably kicked and injured the man during the third stage of an attack.
The House of Lords held that epilepsy was a disease of the mind because the defendant’s
metal faculties were impaired to the extent of causing a defect of reason irrelevant of the
fact that it was an organic disease which was sporadic.
A malfunction of the mind of a transitory effect caused by the application to the
body of some external factor is not a disease of the mind within the meaning of
MacNaghten Rules. Such malfunctioning, if self induced, by a failure to take appropriate
precautions will not relieve the accused person from liability and afford him an acquittal.
In R v Quick (1973) 1 Q B 910 a diabetic suffering from hypoglycaemia injured a
person. He pleaded of automatism was convicted and he appealed. The Court of Appeal
was allowed the appeal and held that the black out was not caused by a disease, but by
alcohol and lack of food combined by insulin. The temporary effect of the application of
external factors is not a disease of the mind and is not insanity. Diabetes is a disease and
if it caused a blackout, it could amount to insanity.
Hennessey (1989) distinguished Quick because hyperglycaemia is caused by
external factors such as alcohol, food or too much insulin, and not by the diabetes itself.
Hennessey was charged with taking a conveyance without authority and driving while
disqualified. He was diabetic he pleaded automatism that he was in a state of
unconscious automatism as he was hyperglycaemic at the time. The judge held that it
amounted to insanity. The Court of appeal confirmed this holding that hyperglycaemia
was by an internal condition, diabetes, a disease of the mind. The stress and anxiety
could not be treated as external causative factors.

Defect of Reason

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 First, the disease of the mind is established then it has to be proved that it caused
a defect of reason which resulted in either one of the two following consequences:
- that the accused did not know the nature and quality of his act, or
- that he did not know his act was wrong.
A defect of reason is not mere temporary forgetfulness. Read Clarke (1972)

Nature and Quality of the Act

Because of the defect of reason the accused does not understand the physical
nature of and quality of the act.
Knowledge That the Act Was Wrong
“Wrong” in the McNaghten Rules means contrary to law. Where it is shown that
the accused knew that what he was doing was contrary to law then accused is not insane.
If the defendant knew that his act was wrong; by ’wrong’ it is meant legally wrong
rather than morally wrong, then the accused will be found liable.
In R v Windle (1952) 2 QB 826 Windle gave his wife an overdose of aspirins
which killed her. At the trial evidence was given to show that the wife was certifiably
insane and further that he had communicated this insanity to her husband (although
medical evidence was given that he was suffering from metal illness the issue of
transferred insanity was not decided). However, he had informed the police and stated
that “I suppose they will hang me for this”. The Prosecution used the statement to show
that he knew what he was doing was legally wrong. It is immaterial that he thought his
actions morally correct.

Court Procedure
If this defence is established the verdict is “not guilty by reason of insanity” The
defendant will be detained indefinitely in a mental hospital which may be worse than a
prison sentence.
R v Wolomosi Phiri (1952) 5 N R L R 184 was charged with murder of his grand
mother. He was found guilty but insane.
Read R v Paddison (1973)

35
CRITICISM OF THE MCNAGHTEN’S RULES

 AUTOMATISM s. 12A of the Penal Code

Automatism is a defence based on an abnormal state of mind of consciousness of
the accused. Either he is acting under confusion, delusion or disassociation that is
regarded as incompatible with the existence of mens rea, but does not amount to
insanity. Automatism was defined in the case of Bratty v A-G for Northern Ireland
(1963) AC 386; (1961) Cr. L. Review 829. The court said:
“No act is punishable if it is done involuntarily and an involuntary act in this
context –some people speak of it as automatism – means an act done by the muscle
without any control by the mind such as a spasm, reflex action or a convulsion or an
act done by a person who is not conscious of what he is doing; such an act done while
suffering from concussion, or while sleepwalking”
The facts, in Bratty v Attorney General for Northern Ireland, (1963) AC 386;
(1961) Cr. L. Review 829, were that the defendant hand been convicted of murder by
strangulation of an 18 year old girl. In a statement made to the police he said that when
he was with the girl he had a terrible feeling and a sort of blackness came over him.
Three defences were raised including insanity and automatism. The court held that there
were types of automatism -INSANE – and NON-INSANE. Insane automatism occurs
where there is unconsciousness through defect of reason of mind and must be considered
under the rules relating to insanity. With non-insane the burden of proof is on the
prosecution to show that the defence was controlling his acts and with insane
automatism the defendant has to show that it’s the defendant that was suffering from
some form of insanity.
The main areas of automatism are:
(1) Sleepwalking - For instance where a driver got up in the night and a
motor cycle accident.
(2) Concussion

36
 (3) Epilepsy
(4) Hypoglycaemia (deficiency of sugar) – See R v Quick (1973) 1 Q B 910
(5) Dissociate States (Hysterical neurosis - Split personality or severe
psychological blow such as a rejection by a lover.)
In Hill v Baxter [1958] 1 Q.B. 277; [1958] 1 ALL E. R. 193; Pearson J. gave the
following example of automatic behaviour:
(i) A man has an epileptic fit so that his movements are merely spasmodic.
(ii) He is reduced to a state of coma by some disease.
(iii) He is stunned.
(iv) He is attacked by a swarm of bees and loses control.
In R v Charlson [1955] 1 ALL E. R. 859 a devoted and indulgent father made a
sudden and savage attack on his son, striking him on his head with a mallet and throwing
him from a window. He was charged with various counts against the person. Evidence
was given to show that he was suffering from a cerebral tumour which would make him
subject to uncontrollable outbursts. The jury was told to acquit if his action was purely
automatic.
The other example given is that of a sleep walker.

R v Kemp (1956) 3 ALL E R 249; [1957] 1 Q B 399

The accused who suffered from a physical disease called arteriosclerosis which
may lead to congestion of blood made an irrational and motiveless attack on his wife
with a hammer.

Read Wolomosi Phiri v TP 5 N R L R 184, in which the accused made an irrational

attack on his grandmother.

 INTOXICATION
Under section 13 (1) Intoxication is not a defence. However, under sub –section
13 (2)
Intoxication is a qualified defence. Intoxication can be caused an alcoholic drink,
narcotics or drugs.

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 a) Intoxication as a defence negatives intent to commit a crime. In murder if
the intent to kill anyone is not there the killing becomes manslaughter. It is objective
standard as the accused is acting below a reasonable man standard and the offence of
murder is reduced to manslaughter. Intoxication therefore negatives mens rea.
b) Intoxication producing insanity
When one takes alcohol the alcohol gets to the brain after being absorbed in the
stomach then to the brain and gets into the brain cells nullifying and damaging brain
cells which may result in shakes or madness.
In DPP v Majewski (1976) the defendant was drunk. He became violent and
assaulted 3 policemen and owner of premises. He was convicted of a crime of basic
intent. The House of Lords held that evidence of voluntary intoxication cannot negative
mens rea in a crime of basic intent.
Voluntary intoxication for Dutch courage
If the accused gets drunk for Dutch courage to commit an offence and he
proceeds to do so; he will not be allowed to claim lack of intent
Intoxication can come about through alcohol of any kind and through drugs
Self –Induced Intoxication to get “Dutch Courage’ is not a defence.
Lord Denning in Gallagher v A-G of Northern Ireland (1963) AC 349; (1961) 3 WLR
619stated that:
“If a man, whilst sane and sober forms an intention to kill…and the gets
himself drunk so as to give himself drunk so as to give himself Dutch courage to do
the killing… he cannot rely on his self induced drunkenness as a defence to a charge
of murder, nor even as reducing it to manslaughter…the wickedness of his mind
before he got drunk is enough to condemn him coupled with the act which he intended
and did do”
c) Involuntary intoxication
Where a defendant is reduced to a state of intoxication through no fault of his
own (because for example his drinks were ‘laced‘) he cannot be ‘blamed’ for his actions
and will accordingly have a defence to any criminal charge. However, this protection
extends only to the defendant who is so intoxicated that he does not form mens rea. If

38
one is made drunk without his knowledge or consent and he commits an offence
because:
- He did not know what he was doing;
- He did not know that what he was doing is wrong;
then intoxication becomes a defence.
See also DPP v Beard (1920) A C 479; 14 Cr App R 159; in which the accused raised a
defence of drunkenness to a charge of murder of a thirteen year old whom he raped.
Read Mulonda v TP (1978) ZR 89; and,
Kalaluka Musole v. T P (1963-1964) Z AND N.R.L.R. 173 (C.A.) raised
defences of mistake, intoxication and provocation. The Court held that:
“That the defences of mistake, intoxication and provocation advanced on
behalf of the accused could not succeed for the reasons set out in the judgments.”

vi. LIMITS OF CRIMINAL LIABILITY OF CHILDREN BELOW 12

YEARS’ (s.14 of the Penal Code CAP 87)
Infants under 12 years (with some exceptions) are exempted from criminal
liabilities. The section divides them into three categories.
(a) Immature Age (Doli Incapax). Under section 14 (1), in Zambia a person under
8 years of age is not responsible for any act or omission even though there is clearest
evidence that the child caused the actus reus with the requisite mens rea. The child is
therefore exempt from criminal liability until a day before his eightieth birth day. This is
an irrebuttable presumption. The rule is stated as a conclusive presumption that the child
is “doli incapax.”

(b) Section 14 (2) stipulates that a person under 12 years is not criminally liable
unless it can be shown that he knew or ought to have known that what he was doing was
wrong. This is a rebuttable presumption. The presumption can be rebutted by showing
mischievous discretion. Proof of mischievous discretion can be achieved by showing
that the child could “discern between good and evil at the time of commission of the
offence”. This is a category of over 8 and under 12 years.

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 In R v FC (a juvenile) 2 N R L R 185 A boy aged 10 years stole a watch and
sold it. At the time of selling he told a lie that he had been authorised to sell it. From the
lie it showed that he knew that what he was doing was wrong.

(d) A male person aged 12 years is incapable of having carnal knowledge. This is a
rule of law and no rebuttable evidence is allowed. See Section 14 (3).

vii. JUDICIAL IMMUNITY s. 15.

Magistrates and Judges are not subject to be charged for their actions done or
omitted to have done in the course of their duties. This defence is absolute. Magistrates
may be sued if they acted maliciously. It means that a judge or magistrate or judicial
officer cannot be charged on any act while exercising his duties even if he was acting
beyond his powers. The only remedy is to appeal on the decision if the judge acted
ultravires.
Polley v Fordman (1904) 91 L T 525
Sinyangwe v R (1957) R & N 581
viii. DURESS AND COERCION s. 16 of the Penal Code CAP 87
When a person acts or omits to do an act under inducement or threat of
impending danger to his/her life or health, that he/she believes will be carried out,
exerted on them by another person it is duress. A person should be compelled to act or
not to act under duress. Abott v R (1977) A.C. 755 expressed that it should be a
mitigating factor. A person acting under duress does not have the mens rea. He is faced
with two evils either to commit a crime to break the criminal law and commit the crime
or to submit to infliction of some evil on himself or another. Duress/ compulsion can be
a defence only where there is a threat to life and a person may be excused according to
the circumstances since the person is merely acting as a medium through which another
person executes his intention. The statute requires that
a. There must be a threat of death or grievous injury made to the
accused.
b. The accused believes the threat of bodily harm was to be carried
out

40
 - Immediately without delay , and
- Sooner than he could have any real opportunity to seek
official protection.
c. There was no chance to avoid or prevent the harm threatened.

For the defence of duress/coercion to operate the following conditions have to

exist:
(a) THERE MUST BE TWO OR MORE OFFENDERS. This is a limiting
factor. Presumably the assumption is that the person making the threat is
necessarily a party to the offence, in addition to the accused who pleads
compulsion. But the unfortunate result is that it throws an additional burden
upon the accused to satisfy the court that the compeller is in law a party to the
offence.
(b) DURESS CONSISTS OF THREATS OF INSTANT DEATH OR
GRIEVOUS HARM TO THE DEFENDANT. Again this is a limiting factor,
and threats such as assault which are less serious will not satisfy.
Furthermore the threats must be directed to the accused alone, not his family.
(c) THE THREATS MUST CONTINUE THROUGHOUT THE WHOLE
PERIOD OF THE OFFENCE. This is satisfactory: as soon as there is a
chance to escape the threat the defendant must have attempted to do so.
(d) THREATS OF FUTURE INJURY ARE IRRELEVANT. The threats must
exist at the time of the offence.
The authorities generally accept murder from the scope of the defence. In Tylor
(1838) 8 C & P 616 Derman stated that “no man from fear of consequences to
himself has a right to make himself a party to committing a mischief on mankind”.
Read Smith &Hogan Chap. 8.

Thus for it to be a defence a person must be acting under duress This defence is
not available to a soldier or a police officer under lawful military and police orders or
command to kill. TP v Shamwana [1982] ZLR 183
Lynch was driven but he knew of killing, implicated, he pleaded duress.

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 Coercion was restricted to wives committing felonies or misdemeanours in the
presence of the husband under moral and spiritual coercion as distinct from physical
coercion. However section 19 dealing with this was repealed.
R v Bourne (1952) 36 Cr App. R. 125, compelled wife twice to have carnal
knowledge with a dog the wife was acquitted. He appealed that there can be no aiding
and abetting if the wife acted against her will and therefore, not a principal offender but
a victim therefore no crime of buggery. He was found guilty as principal in the 2 nd
degree.

ix. NECESSITY – section 16 of the penal code, CAP 87.

Necessity is a defence of self preservation in the face of danger of death in order
to preserve one’s own life and that of others. Necessity as a defence can only operate in
circumstances where a person is faced with alternative of committing a crime or
allowing a greater evil to occur and he chooses to commit the crime. Necessity forms
the basis of the defences of duress and self defence. In such circumstances there is a
situation which gives no way out and the only way out will be to do what will plainly be
a crime.
Greater evil in this case can be grater evil being a more serious crime or greater
evil not being a crime but greater suffering than if the crime had not been committed.
(a) The greater evil being a more serious crime
In R. v Vantandilo (1815) 4 M & S 13, a mother carried a child suffering from a
contagious disease. She was convicted of exposing an infected person in a public place.
However, Ellen Bourough J., stated obiter that if she had been trying to procure
treatment for the child they would have accepted it as a defence than if the mother made
no effort at all to save the child and it had died she might have been liable for
manslaughter; the greater evil being the crime of manslaughter.

(b) A greater evil not being a crime.

An act or omission which amounts to a crime cannot normally be justified by
necessity, for a particular act is never necessary in the sense that there is no
alternative .Even if the only alternative is death, this does not justify crime.

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 In R v Dudley and Stephens (1884) 14 Q B D 273, four people three men and a
boy were shipwrecked at sea had no food. After 18 days without food and water the two
accused suggested to the third man that they kill youngest the boy. The third man
declined to fall into their plan. Two days later the two accused killed the boy and ate his
body. Four days later they were rescued. After they were rescued they were charged and
tried for murder. They pleaded the defence of necessity. The defence of necessity failed.
Then what mitigated the severity of the punishment that was reduced to 6 months
imprisonment. There was no appreciable chance of saving life except by killing thereby
giving the conclusion that the killing of one was necessary to preserve the lives of the
three. It was on this basis that the sentence was reduced to 6 months. See also the case
of Buckoke v Greater London Council (1971) 1 Ch 655; and, U S v Holmes (1842) 26
Fed Cas 360
The defence of necessity can only be raised in murder cases and the rationale is
that it is no defence to kill another in order to preserve your own life except in self
defence.
Glanville Williams’s definition of necessity is “a law being broken to achieve a
greater good”. It becomes apparent that even if necessity is not a defence it may make
conduct excusable when the act is committed for the preservation of life. Notably, the
light sentence meted in R v Dudley & Stephenson was as a result of for the purpose of
preservation of life and this is only claimed in special circumstances as there no law that
one kills an innocent person.
Some statutes recognise necessity within the definition of a particular offence.
For example sections of the Penal Code “to save the life of another.” For instance in the
following cases: Section 17 of the Penal Code, on self defence, section 221 “done in
good faith for the purpose only of preserving the life of the mother;” and section 234
of the Penal Code “not criminally responsible for performing in good faith and with
reasonable care and skill a surgical operation upon any person for his benefit, or
upon an unborn child for the preservation of the mother's life.”
In R v Bourne (1938) 3 ALL E. R. 615, a surgeon performed an abortion on a 14
year old to preserve the life of a mother to avoid physical and mental damage to their
mother. S. 221 of the Penal Code provides for saving the mother.

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 In Leigh v Gladsten (1909) 26 T.L.R. 39, prison officials had to force feed
prisoners to preserve their health. For this reason the committed assault in forcible
feeding and avoided a greater evil of possible death from starvation.
In R v Kitson (1955) 39 Cr. App. Rep., 66; A drunken man was asleep in the
passenger’s seat. The car was parked at the top of a hill by a brother-in law. He
awakened to find the car rolling down hill so that he grabbed the wheel and guided it
down to a grass verge over 300 metres. He was charged with driving a motor vehicle
under the influence of beer. He avoided death being the greater evil or to save his life
being a greater good.
Necessity was recognised in Johnsten v Phillips (1976) but the doctrine was used
to support a conviction.

x. DEFENCE OF PERSON OR PROPERTY

SELF DEFENCE s. 17of the Penal Code CAP 87 stipulates that:
17. “Subject to any other provisions of this Code or any other law for the time being
in force, a person shall not be criminally responsible for the use of force in repelling
an unlawful attack upon his person or property, or the person or property of any other
person, if the means he uses and the degree of force he employs in doing so are no
more than is necessary in the circumstances to repel the unlawful attack.”

Self-defence and defence of others almost invariable arise out of an attempt to

commit a crime by the assailant and thus consist in the use of force to prevent the
commission of the crime. The purpose of the person attacked is defence of himself or
another and not, normally, the prevention of the crime.
A person who is violently attacked and fears for his life or injury to his
person is entitled to retaliate with force to repel the attack. However the force used
against the aggressor must be proportionate to the attack. For instance if A slaps B, B
cannot retaliate with a gun.
Tembo v TP (1980) Z R 209
TP v Njobvu (1968) Z R 132

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- The right to self defence extends no further than doing what is necessary to repel
attack.
- It is true that in certain circumstances, a person faced with a felonious attack, may
overstep the bounds and kill his attacker, and may not be able to measure with niceties
and make retaliation proportionate to the attack.
Zulu v TP [1981] Z R 341
In self defence the defendant must be under attack or must believe himself to be
under attack. He must use necessary and reasonable force in order to repel the attack.
He is not the arbiter as to how much force was reasonable to use in the circumstances.
The test of how much force is reasonable is an objective one for the tribunal of fact to
determine.
Owino (1995)
Self defence is also known as private defence and it covers defence of property,
defence of another, preventing crime, and assisting lawful arrest.
Once the issue of self defence is raised the burden of proving beyond reasonable
doubt that he was not acting in self-defence or he used more than reasonable force rests
on the prosecution.
Reasonable force
The use of reasonable fore is a question for of fact and not law. It is therefore for the jury
or judge (as a tribunal of fact) to decide. The tribunal of fact will take into account the
urgency of the situation, the ferocity of the attack; any other means open to him to
defend himself such as retreating instead of using force and whether the accused’s
defence had continued or the attack had stopped or the threat of attack had faded.
The person has to face with a sudden or threatened attack. If, in the immediacy of
the moment and without time to think and weigh things to a nicety, the accused did what
he honestly and instinctively thought was necessary, the defence would succeed.
R v Zebroni (1956) R & N 195;
R v Mudewa (1973) ZR 147 The deceased visited a woman, who said she was
expecting another man and she asked deceased to leave. The accused came later and the
deceased struck accused with heavy blow, the accused fell down and a lean-to-door fell
on him with deceased on top of him. As a businessman the accused usually carried gun.

45
He got the gun from his pocket fired once in attempt to frighten his assailant and then
when attack was renewed fired again. Trial Court found deceased died as a result of
bullet wound inflicted by accused. Prosecution contended that he had not retreated and
to fire a gun was use of excessive force. The test is objective one of reasonable reaction
taken in the heat of the moment of unexpected anguish. (Ct.) Cullinnan AG. J found
prosecution had not negated the defence of self defence. To retreat only an element on
which reasonableness of accused demeanour is to be judged. He must demonstrate that
he does not want to fight. In a murderous assault it is too much to expect the niceties in
the method one chooses to defend himself. Immediate peril/danger calls for immediate
defensive action by some instant reaction.
Read: Palmer v R [1971] AC 814; [1971] 1 ALL E R 1077; [1971] 2 WLR 831
The accused must have been attacked first and was acting pre-emptively to prevent an
attack.
Read:
Bird (1985)
A – G’s Reference No. 2 of 1983
Martin (Anthony) (2001)

Excessive force
If the accused used more than excessive force the defence of self defence will
fail. This called an “all or nothing” defence. If the defence succeeds the accused is
acquitted. Under a murder charge if the accused acted in self defence but used excessive
force the defence has been disapproved. It does not result in lowering of the verdict to
manslaughter. However the verdict can be lowered on other grounds such as provocation
or lack of proof that the accused intended to kill or cause grievous bodily harm.
Read:
McInnes [1971] 3 ALL ER 295 [1971] 1 WLR 1600
Clegg (1995)

DEFENCE OF ANOTHER s. 17 of the Penal Code CAP 87

46
 In Duffy (1967) 1QB 63 the Court of Criminal Appeal held that a woman would
be justified in using reasonable force when it was necessary to defend her sister, not
because they are sister, but because “there is general liberty as between strangers to
prevent a felony”. That general liberty now extends to all offences. All other rules
relating to self defence apply.
Read R v Goth.

DEFENCE OF PROPERTY
The defender of property like the defender of the person is generally engaged in
prevention of crime.
The acceptable type and degree of force used will depend on the nature of the
property protected and the state of mind of the person protecting the property.
 If a person enters a dwelling house forcibly the rule appears to be that the house
owner may use as much force as necessary to repel the intruder. No warning need be
given.
 If a person enters as an ordinary trespasser the householder is under an obligation to
request the trespasser to depart. If he refuses he may use a reasonable force to
remove him. If the trespasser fights back the normal rules of self defence apply.

Use of force in affecting arrest s. 18 of the Penal Code and Sections 26,39,61,and 64 of
the Criminal Procedure Code CAP 88.

Section 18stiplates that: “…the court shall, in considering whether the means
used were necessary or the degree of force used was reasonable for the apprehension
of such person, have regard to the gravity of the offence which had been, or was
being, committed by such person and the circumstances in which such offence had
been, or was being, committed by such person.”
The test of reasonable force in protection of property in affecting arrest is applied. The
court shall, in considering whether the degree of force used was reasonable or whether
the mens used were necessary have regard to:
(a) The gravity of the offence committed by the person arrested.

47
 (b) The circumstances in which the arrested had, or was in the process of
committing the crime.
As in the case of self-defence what constitutes excessive force can only be
determined by the facts of each particular case.
In Marwa S/O Robi v R (1959) EA (CA) it was stated:
“we think it must be a question of fact in each case whether the degree of
force… which caused death was, or if not justifiable, whether it was such as to
amount only to manslaughter or was so excessive as to constitute the offence of
murder”.

PROVOCATION
The defence of provocation is a partial and limited defence and available only in
murder cases. The effect of a successful establishment of the defence results in the
reduction of the offence of murder to manslaughter. In order to succeed, the accused
needs to show that as a result of the provocation there was sudden and temporary loss of
self control so that he was not in charge of his full mental faculties.
Section 206 of the Penal Code defines provocation. Since section 206 appears to
be incomplete, it should be read in conjunction with section 205. The defence of
provocation is only available to murder, not to any other charge, although it may
mitigate sentence. The accused meant to kill. Murder is reduced to voluntary
manslaughter by statute under section 205.
Provocation, where pleaded successfully, operates to reduce murder to
manslaughter. The essence of provocation is that the accused person kills another in the
heat of passion before there is time for the passion to cool. First there should be sudden
provocation and no time to cool. Second, there must be reasonable retaliation. There is
momentary loss of self-control and the test applied by the courts in Zambia is that of an
ordinary person in the accused person’s community. It is not for the accused to establish
provocation as a defence. If there is any evidence of provocation, the court cannot
convict of murder unless it is satisfied that the prosecution has proved beyond all
reasonable doubt because either that there was no provocation as defined in the code, or
if there was provocation, that what was done in the assault could not be regarded as what

48
 an ordinary person of the community to which the accused belonged, who had lost
self-control, might have done on the provocation given. (See the case of Chibeka v. R
(1959) 1 R & N 476).

Elements of Provocation
The elements of provocation are as follows:
i. Killing in the heat of passion and without time to cool;
ii. The provocation must be sudden;
Provocation is defined as:
(a) wrongful act or insult
(b) Directed to accused or another in a special relationship to the accused.
(c) As a result accused is deprived of self control
(d) Accused is induced to assault the deceased.
iii. There must be a wrongful act or insult;
iv. There must be loss of self-control which is what would happen
to an ordinary member of the community to which the accused belongs; and
v. The retaliation must bear a reasonable relationship to the
provocation.
The court is entitled to take all the circumstances of the case into account in
determining whether there is sufficient provocation. In TP v Njovu {1968} Z R 132,
Njovu killed his wife of 28years of marriage. His wife slapped him in bed and pulled his
leg after a family quarrel. The Court held that it was sufficient provocation (straw that
broke the camels back). They had had a difficult marriage and finally the slap and
pulling of his leg was enough provocation.

a) Wrongful Act or Insult

There must be a wrongful act or insult. This refers to provocative conduct (see
section 206(1) of the Penal Code). In terms of the above section as read with its sub-
section 2, the provocative conduct may either be directed to the accused person or to any
person related to the accused in his presence.

49
 The wrongful conduct must be sudden and must cause actual loss of self-control
in the accused person. The test to be applied is an entirely subjective one. The
requirement of loss of self-control entails that the accused person must suddenly and
temporarily lose his self-control, rendering him subject to intense passion as to make
him at that moment not master of his mind. Mere loss of temper will not suffice; and
those who easily get annoyed by the slightest oversight are excluded. The imperative
thing is that the accused person was unable to restrain himself from doing what he did.
Thus, a carefully planned revenge against an aggressor after lapse of considerable time
from the time of the provocative conduct negatives the defence of provocation.
R v. Ahluwalia (1993) 96 Cr. App. 133; (1992) 4 ALL E. R. 889
Adultery has been accepted as provocation to commit murder.

b) Loss of Self-control by Ordinary Person

It is necessary not only to show that the accused person lost his self-control but
also that an ordinary person in the accused person’s community would have lost his self-
control in the circumstances. The test applied is an objective one under section 206 (1)
of the Penal Code where “an ordinary person” is defined as an ordinary person of the
community to which the accused belongs.
This concept of the ordinary person under the Penal Code encompasses the
diverse backgrounds of the people of Zambia (see Ndulo: 1994). Therefore, local
traditions, beliefs and conditions can be taken into account in assessing the reaction of
the ordinary person to the particular situation. It is for the above reason wider than the
English law concept of the reasonable man. The situation in which accused lives gives a
subjective test and objective test of a reasonable man in that community; thus a different
reasonable man in a different community. The assault must have been in reasonable
retaliation is tested to the reasonable man in that community.
Read:
James Chibangu v. The People (1978) ZR 37
Nyambe Mubukwanu Liyambi v. The People (1978) ZR 25
Morhall (1995) 3 All ER 659
DPP v. Camplin (1978) 2 All ER 168

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 c) Reasonable Relationship Between Retaliation and Provocation
The Penal Code does not define this concept. However, it means that the act which
caused death must have borne a reasonable relationship to the provocation. The
retaliation must not be excessive. Thus a man who killed his former mistress by
inflicting four blows on her head with a panga on the ground that she slapped him and
spat at him when he suspected her of having made off with a considerable sum of money
was convicted of murder as his mode of resentment was out of all proportion to the
provocation (see the case of Obiero v. R 16 EACA 139).
In the case of Simutende v TP [1975] Z R 294, Simutende had been burgled and
he lost part of his clothes. He met a man very smartly dressed in his clothes. He hit him
with an axe. The issue was whether a man wearing his clothes was sufficient
provocation to murder. The court found that it was not reasonable retaliation to the
provocation so there was no reasonable relationship to the provocation.

Chintunkwe v TP 5 N.R.L.R. 339; Accused killed his wife by wounding her

twice with an axe and cutting her throat with a knife after taunting him with impotence.
She had additionally said, “You are not like other men such as Skini Njani” Mere words
unaccompanied by blows could not be regarded as provocation for retaliation
unreasonably related to the alleged provocation. Ct found insults were of gross nature
coupled by deceased’s infidelity, shown from her words, with other men including Skini
Njani. Prosecution discharged onus.
R v Duffy (1949) 1 ALL E. R. 932; That there should be circumstances that
deprive accused the power of self control, being “an ordinary person”, to be “sufficient
provocation which must have been sudden and have been acted on in the heat of
passion, without time for cooling”, that the act which caused death bore reasonable
relationship to the provocation.
Mancini v DPP (1942) AC 1;
In Milambo v T P (1977) the appellant a soldier was found naked under woman’s
bed. A relative of the woman beat him, he fled, swam naked across Zambezi River but
he was followed and brought back. The beating continued, one in the crowd had a panga,

51
so accused was very frightened, he developed rage, which made him take an army gun
from vehicle and fired into the crowd killing the deceased. The Court held that the mode
of retaliation was not out of proportion and self defence murder reduced to
manslaughter;

Cumulative Provocation
Esther Mwiimbe v T P (1986) ZR 15 (SC),;
Mancini v DPP (1942) AC 1, thought that people wanted to beat him, two people
attacked him, rushed home and collected a long knife, stabbed one person. Ct. refused
defence of provocation.
Chitengi v TP 1966 Z R 37
Read:
Tembo v TP (1997) ZR 332;
Banda v TP (1973) ZR 112;
Chileshe v TP (1975) ZR 236
DPP v. Camplin (1978) AC 705; (1978) 2 All ER 168;
R v. Amuli (1953) 4 NRLR 243;
Clarkson & Keating: p. 651;
Hatchard & Ndulo: pp. 50-60;
Smith & Hogan: Chapter 12;

xi. CONSENT OF A VICTIM. Volenti non fit injuria

In instances where a person deliberately places himself in a peril and
subsequently gets injured, the accused can raise a defence that the victim consented.
DPP v Morgan (1976) AC
“Actus reus non facit (reum nisi mens) sit mens rea.” A man cannot be convicted
of crime unless there is the prescribed intention, i.e., permanently depriving in theft,
intention can be drawn from circumstances.

xii. SUPERIOR ORDERS

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 This is not a defence in our laws as no man can licence another to commit a
crime.
In Keighley v Bell (1866) 4 F & F 763 Wiles J said obiter that: “the better opinion is
that the officer or soldier acting under the orders of his superior not being necessarily
or manifestly illegal would be justified by his order.
Read Hatchard, J. and Ndulo M. (1993) ‘A Case Book on Criminal Law’ at page 128;
and,
Magayi v Uganda (1965) E A 667.

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