CRIMINAL LAW (1ST SEMESTER)

The general part of the course is to know and study The Scope, Aims and Functions of
Criminal Law. The Criminal Law is instituted by society to guide the actions of people in the
community.
The main purposes are:
- Protect individuals and their property
- Preserve order in society
- Punish offenders
- Safeguard the lives of people who are challenged in society.
 Children
 Physically challenged
 Mentally challenged
 Women
 Economically challenged.

CRIME
A crime is defined as any act or conduct that is forbidden by the State and to which a
punishment has been attached because the act or conduct is regarded by the State as being
criminal.
By this definition, a crime may be an act or an omission. It is not the nature of the act but
rather what society has proscribed the act or conduct to be so.
CRIME AND CIVIL WRONG
A crime may be:
 Malum in se : the crime is inherently and universally wrong e.g.
murder
 Malum prohibitum: the crime that is wrong because it is prohibited.

Crimes are graded according to their forms and there four (4) forms:
 Crimes which are punishable by death
 1st degree felonies ( life imprisonment)
 2nd degree felonies ( less in gravity but more serious)
 Misdemeanor (minor offences).

Before an act or a conduct becomes a crime, there must be three (3) discernible elements:
1. Is the act or conduct prohibited by law?
2. Is the prohibition by a statute which is in force/?
3. Are there provisions of penal consequences for breach of them?
The first element in the definition is that there must be a prohibited act. Whenever the State
considers any activity injurious enough to the public welfare, the doing of such act is
prohibited on pain of punishment. It is thus not possible to accord the tag “crime” to any act
that is not prohibited.
The second element is that the prohibition must be by a Statute in force. The imposition of
penal consequences is considered so important that a person must not be made to suffer for
the doing, or failure to do an act unless the prohibition was known in advance. It is a
principle in law which says that the Criminal Law should be written so as to afford all citizens
adequate notice of it. This principle has been stated in the UN Universal Declaration on
Human Rights and it is also the basis for the International Court of Justice’s statutes.
The principle is stated in the maxim that: “Nullum crimen, nulla poena sine lege
praevia lege poenali”. Meaning no crime is prohibited before the act and no punishment
before the act. The principle brings out two important elements:

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 - Nullum crimen sine praevia lege; there must be a written law before the
commission of the act. Article 19(5) of the 1992 Constitution provides that:

“A person shall not be charged with or held to be guilty of a criminal

offence which is founded on an act or omission that did not at the time it
took place constitute an offence”. This principle states clearly that there shall be
no retroactive law in Ghana.
- Nulla paean sine lege; an act or omission becomes a crime only if it is prescribed
in law. Article 19(11) of the 1992 Constitution provides that:

“No person shall be convicted of a criminal offence unless the offence is

defined and the penalty for it is prescribed in a written law.” It is important
to know that the underlying principle of article 19 (11) is to outlaw all unwritten laws.
The third element is that the breach of that statute must carry penal consequences. A
penalty is always unpleasant and it is such unpleasantness that encourages and enforces
compliance on the part of the citizens.

NATURE OF CRIMINAL LAW

The Criminal Law basically concerns itself with the study of the law of crimes, and not the
phenomenon of crime per se. Crimes are considered to be injurious to the body politic as a
whole, and affect the general welfare of the whole society. Owing to the public nature of
crime, it belongs to the sphere of law termed “public”. This is distinguished from other areas
of law which deal with relations between private parties and are therefore considered to
belong to the realm of “private law”. For this reason, steps to redress injury caused by crime
must be taken by the State itself as the ultimate protector of the citizen, and the penalty of
commission must also be inflicted on the wrongdoer by the State.

Elements of Crime
A crime is made up of two elements, namely
 a prohibited act or omission, i.e. the physical element – captured in the Latin phrase
actus reus, and
 a prohibited mental state with which the particular act or omission is done, captured
in the Latin phrase, mens rea – the mens must be rea before criminal liability can be
established.

We noted that as a general rule, the two elements must coincide in respect of the same
event for the act to amount to a crime

This dual requirement of criminal liability is captured in the Latin maxim Actus non-facit
reum nisi mens sit rea – that is, an act does not make a man a criminal unless the mind
be guilty
We also noted that sometimes, the law dispenses with the requirement mental element,
making such an act a strict liability offence.

We stressed that the actus reus may be an act, or an act together with the surrounding
circumstances, or an omission to act when required to do so.

The point was also made that the mental element differs from offense to offense – in some
situations it is intentional conduct that is proscribed, in other cases, it is knowledge of the
unlawfulness of the conduct.

We broke off at the point where we were discussing intention under section 11 as a form of
mens rea

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Here, the concept of direct intent under section 11(1) was explained in the light of the
rebuttable presumption that a man intends the natural and probable consequences of his
actions.

Then the concept of oblique intent under section 11(2) was also explained – this is where a
person engages in conduct for a particular purpose and the means chosen causes other
effects as well – here, the accused is not excused from liability if his act achieves an
undesired consequence, as long as the undesired consequence was foreseeable at the time
the act was committed.

So as the illustration under section 11(2) goes, if A, for the purpose of causing the
miscarriage of B, administers to B a drug which A knows to be dangerous to life, it is
immaterial that A earnestly desires to avoid causing B’s death, and uses every precaution to
avoid causing it

Other forms of intent under section 11:-

Sometimes a person engages in criminal conduct against a crowd or an assembly of people

without really intending to harm a particular person, and a member of the group is harmed
thereby.

Here, the intention is indeterminate in respect of who would be victimized or the eventual
victim.

This form of intent is known as general or indeterminate intent

Here, the accused will still be liable even though the eventual victim was not within his
direct contemplation.

Section 11(4) provides that:

A person who, intending to cause an event with respect to one or any of several
persons or things, or to an indeterminate person or thing as may happen to be
affected by the event, causes the event with respect to that person or thing, and
is liable in the same manner as if the intention has been to cause the event with
respect to that person or thing….

Therefore, if A discharges a gun into a crowd, and one of them is shot, A will be presumed to
have intended to cause harm, unless he can show that he had ground for believing that
harm would not be caused – here, A is punishable as if he had purposed to cause the harm
to the person to whom it was in fact caused.

A case in point is R v. Gyamfi. In that case, the Appellant was the Organizing Secretary of
the United Party (UP) at Badu in Brong Ahafo. At a political rally, the Appellant was leading a
number of UP supporters toward a crowd of CPP supporters. The UP supporters were
throwing stones. The Appellant threw a stone, described as slightly larger than a fist, at the
CPP supporters, and it hit one Kwabena Oppong, who died from injuries sustained therefrom.

His conviction for murder was overturned because there was no intention to cause death.
However, the critical point to note here is that he was found guilty for manslaughter because
there was sufficient intention to cause harm by the act of throwing a large stone into a
crowd.

Contrast this case with Ahenkora & Badu

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In that case, three persons consulted a juju man as a means of increasing their business
prosperity. The juju man took them to a cemetery and asked them to stand abreast of each
other. The juju man was to summon spirits by firing a loaded gun. The juju man instructed
the 3 men not to look around upon the firing of the gun. As the juju man was doing a third
revolution around the men the gun was fired and it struck one of the men who died shortly
afterward. The juju man and one of the 3 three men, who supplied the gun, were convicted
of murder. They appealed to the Court of Appeal.

In acquitting and discharging the Appellants, the Court of Appeal made the following
Observation:
The essential question in the present case is this: Can the appellants, because they
went to the cemetery with a gun for the purpose of summoning spirits, be presumed
to have intended the consequence that followed when the gun was discharged, and
resulting in the death of the deceased? In other words, did the appellants actually
intend killing the deceased, or any person? The jury should have been told that intent
and desire were different things, but that once it was proved that an accused person
knew that a result was certain, the fact that he did not desire that result was
irrelevant. In this case, however, the evidence is not such as to show that the
appellants knew (or ought to have anticipated) the result which followed the
discharge of the gun.

In this case, the appellants were exculpated from liability – and it would appear as though
the appellate court was bit soft on especially the juju man who had the gun.

But clearly, had the prosecution established that the accused knew or ought to have
anticipated the result which followed the discharge of the gun, the juju man would not have
been heard to say that he did not have the victim in his contemplation when he fired the
gun.

Sometimes, a person may target a person for the purpose of inflicting harm on that person,
but he misfires and harms another person instead.

For instance, if A aims at B with a gun but misfires and hits C, the law will hold A liable for
the death of C.

Here, the law says that the accused will still be liable for the harm resulting to the second
person was the result of a transferred intent.

It would realized that in such a case, the actus reus and the mens rea occur in two separate
places, that is, the actus reus occurs on the eventual victim while the mens rea occurs on
the intended victim.

So if we were to strictly apply the maxim actus non facit reum nisi mens sit rea, there
would be no crime because the there is no convergence between the actus reus and the
mens rea, and the accused would thereby be exculpated from all liability.

However, the law seeks to overcome this clearly undesirable situation by the adoption of a
legal fiction of transferring or stretching the mens rea to match the actus reus.

This form of intent is known as transferred intent.

The underlying philosophy is that a man who has an unlawful and malicious intent against
another, and, in attempting to carry it out, injures a third person, should be punished as if
the initial intention was to harm the injured person.

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So section 11(5) provides that:
A person who does an act with intent to assault, harm, kill, or cause any
other event to a particular person, which act takes effect, whether
completely or incompletely, against a different person, is liable to be tried
and punished as if the intent had been directed against that different
person.

A case in point is Ametewee

In that case, the appellant, a police officer who was on duty at the Flagstaff House, fired
three shots at the President. One of the shots hit and killed the President’s body guard. The
appellant contended that his sole desire was to take away the life of the President and that
he did not at anytime form any intention to kill the deceased. Therefore, it would be illogical
to hold that he intended to kill the deceased. In the words of the appellant:
On 1January, the President came to the office. I was on duty but I did not see him
when he came to the office. It was on the second that I saw him. He entered the
office, and when he was about to go I tried to do the job. The distance between the
President and me was not far; and if I meant to aim at him properly I would not miss,
but I just held the gun anyhow and fired. I fired thrice. I remember running towards
the President and his Aide-de-Camp, Mr. Salifu Dagarti was then holding the
President by the hand. He was trying to drag him into the car. I fired the third time
again but I missed the President. I was all the time aiming at the President, so my
mind was on nobody else. But in fact it was not my mind to kill him; if I meant to kill
him only one shot of mine would have killed him.

Later, the appellant had this to say:

I was too busy to think of Salifu Dagarti because he was not in my focus. I was
cocking the fourth round into the rifle chamber when it sprang out and dropped to
the ground.

The Supreme Court was clearly unimpressed and stated as follows:

It would seem that the appellant was labouring under a misapprehension that
because his aim was to kill the President, if his bucket hit and killed the deceased by
mistake “it would be illogical to hold him responsible for the murder of the
deceased.” Such a contention is wrong and untenable and cannot be countenanced
by our courts. As Darling J. said in R. v. Gross: “If a person feloniously fires at another
in such circumstances as would make the killing of that other person murder, but by
accident hits and kills a third person whom he never intended to hit at all, that is
murder”.

It should be noted that in determining liability under the concept of transferred intent, any
defence available to the accused or any extenuating factor that works to the advantage of
the accused, had the harm occurred to the intended victim, will still be available to the
accused although the harm occurred to another person.

This is the effect of section 11(6) which provides that:

For the purposes of subsection (5), a ground of defence or extenuation is
admissible on behalf of the accused person who would have been
admissible if the act had taken effect against the person in respect of
whom, or the thing in respect of which, the accused person intended it to
take effect.

Proof of Intent

Now, how does one prove intent?

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It is not at all easy establishing intent – for as you may have heard, the Devil himself knows
not the intent of a man.

Since the law is not a practice in clairvoyance, we have established a presumption to aid in
the determination of a person’s intent at the time an event occurs.

The presumption is to the effect that a person intends the natural and probable
consequences of his actions.

So the general rule is that, if what occurred is the natural or probable consequences of a
conduct engaged in, it does not lie in the mouth of the accused to assert that he did not
intend the achieved result.

For instance, if a man sleeps with a woman without protection during an unsafe period, he
may not have to say that he did not intend to impregnate the woman – why? Because the
natural or probable consequence of sleeping with a woman without protection during an
unsafe period is pregnancy.

It should be noted that the presumption that a man intends the natural and probable
consequences of his actions is not a conclusive presumption – it is rebuttable if the accused
is able to lead evidence to the contrary.

So that in our example, if the man is able to show that he used protection in the form of a
condom, he may be able to escape liability although the condom broke.

Thus, if a man loads a revolver, points it at another, aims carefully at the victim’s heart and
pulls the trigger, the only possible explanation is that he intended to kill the victim.

Therefore, section 11(3) provides that:

A person who does an act of a kind or in a manner that, if reasonable
caution and observation had been used, it would appear to that person
a) that the act would probably cause or contribute to cause an event, or
b) that there would be great risk of the act causing or contributing to
contributing to cause an event,
intends, for the purposes of this section, to cause that event until it is
shown that that person believed that the act would probably not cause or
contribute to cause the event, or that there was not an intention to cause
or contribute to it.

So in Serechi v. The State, AGC employees were conveying firewood trucks on a

locomotive train from Obuasi to a village. Some non-employees jumped unto the trucks as
the train started moving, obviously to hitch a free ride.

The accused did not take kindly to this mode of “lift”. So they pushed a few of the non-
employees off the train. Unfortunately, they pushed the deceased off when the train was
moving very fast. He fell and he was run over by a falling truck. The accused flatly denied
their involvement in the incident. They were convicted for murder.

On appeal, the Supreme Court held that was sufficient evidence of an intention to cause
death and the infliction of the unlawful harm.

You cannot lightly fault the Supreme Court on this – for what do you expect when you push
off a man from a fast moving train.

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Now, what is the test or standard for upholding the presumption that a man intends the
natural and probable consequences of his actions?

Under English law an attempt was made in the much criticized case of DPP v. Smith to set
an objective test by the adoption of the standard of the reasonable man, that is the standard
of an ordinarily cautious or observant person.

In DPP v. Smith, the respondent was driving car in the back of which were stolen sacks of
scaffolding chips. A police constable, noticing the sacks, asked him to stop, but instead the
respondent accelerated. The constable clung on to the side of the car, which pursued an
erratic course, but he was finally shaken off and fell in front of another car, receiving fatal
injuries. The respondent contended that he did not intend to kill the constable but merely
wanted to shake him off the car.

In upholding his conviction for murder, the House of Lords outlined the objective test as
follows:
It is immaterial what the accused in fact contemplated as the probable result of his
actions, provided he is in law responsible for them in that he is capable of forming an
intent…On that assumption, the sole question is whether the unlawful and voluntary
act was of such a kind that grievous bodily harm was the natural and probable result
and the only test of this is what the ordinary responsible man would, in all the
circumstances, have contemplated as the natural and probable result…

Once the accuser’s knowledge of the circumstances and nature of his acts has been
ascertained, the only thing that can rebut the presumption that he intends the
natural and probable consequences of those acts is proof of incapacity to form an
intent, insanity or diminished responsibility.

The Supreme Court of Ghana, in the case of Akorful, disapproved the test of the standard
of the reasonable man set by the House of Lords in DPP v. Smith

In Akorful, the appellant heard someone trying to force open his window at about 1 am. He
got up, took up his gun and went out to investigate. He did not see anybody. A few moments
later, he saw someone walking in the dark. He shouted at the person, but there was no
answer. Thinking that the person was a thief, he fired his gun toward the direction where the
person was coming from in order to scare him away. His shots hit and killed one Kofi
Buabeng.

In his summing up to the jury, the trial judge adopted the test of the reasonable man.

The Supreme Court rejected the test of the reasonable man in the following words:
In our view DPP v. Smith is not an authority on the law of murder for this country,
and by directing the jury to apply an objective test the learned trial judge seriously
misdirected the jury on the only issue before him. What the learned trial judge in
effect told the jury was that once they were satisfied that a reasonable man in the
circumstances of the appellant would appreciate the consequences of his act they
should pay no attention to what the appellant said about the state of his own mind.
That of course is not our law. It would indeed be monstrous that the idiot or stupid
man should hang simply because he had not the intelligence or the foresight of the
reasonable man…The proper criterion is what the prisoner himself had in his mind.
Indeed, it would appear that by the formulation of section 11(3), the test applicable in
Ghana is at once both objective and subjective.

The statement of the presumption in the first part of section 11(3) appears to be based on
an objective test – (refer).

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On the other hand, the second part of section 11(3) which deals with setting aside the
presumption appears to be based on a subjective test – (refer).

Motive

Now let’s contrast intention with motive.

Intention is very different from motive.

Intention is the will to engage in an act, while motive is the feeling that prompts
the desire to engage in the act.

For instance, if a person kills another, the motive may be for revenge or to attain some
economic benefit from the death of the victim.

So if a man shoots and kills his uncle to benefit under his will, the intent, which makes the
act murder, is the desire to kill, while the motive, which forms no part of criminal liability, is
the desire to benefit under the will.

Unlike the situation in some jurisdictions in the United States, in Ghana there is no obligation
on the part of the prosecution to prove the motive behind that person’s action.

On another score, motive is not defence for engaging in a criminal conduct, however
innocent it is – in other words, one who breaks the law with a good motive or in aid of a
religious belief still breaks the law.

Causation

We have established that for a crime to be made out there must be a coincidence of the
physical prohibited act, the actus reus and the prohibited mental state, the mens rea.

Sometimes, it is not so easy to establish conclusively whether the accused is responsible for
the actus reus due to the existence of a combination of factors that operate to make such a
definite determination unclear.

Yet, for a person to be linked to the actus reus – i.e. we must establish a causal connection
between the accused and the act that constitutes the actus reus.

In the absence of this link, a person cannot be held liable for the particular offence.

The concept of causation attempts to ascertain when we may conclude that a person is
responsible for a blameworthy act or whether a person is responsible for bringing about a
prohibited event or state of affairs.

Hart and Honore posit that on a primary level, human beings bring about desired alterations
in objects by making appropriate movements of their bodies – these, they say, are captured
by transitive verbs like push, pull, bend, twist, break etc.

On another level, human beings bring about secondary changes, not only in the objects
actually manipulated, but in other objects.

In law, our concern is the result of our primary actions – that is, the desired secondary
change.

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The desired secondary change is the effect and the cause of the secondary change is our
action in bringing about the change – so we cause injuries by blows, glass to break by
throwing stones etc.

In other words, causation looks to our producing one thing by the doing of another thing
In other words, the result of our action is the end and our action is the means to that end.

Causation, therefore, is the result of a person’s action or inaction.

In establishing a causal link between the accused and the actus reus, our concern is not to
indulge in logical sequencing – that is, since this event followed the other then that other
must have caused the event.

This is captured in the Latin phrase, post hoc ergo propter hoc – meaning “after this,
therefore because of this”.

This is said to be a logical fallacy that asserts or assumes that if one event happens after
another, then the first event must be the cause of the second – for e.g. A’s blow was
followed by B’s death, therefore A’s blow caused B’s death.

Do you appreciate the inherent fallacy in this assertion?

In law, we adopt common sense principles of causation – we do not engage in strict physical
scientific analysis of causation – therefore if A sets fire to a house, we will not remove
ourselves six steps from practicality by saying that the fire was not caused by A but by the
presence of oxygen that kindled the fire – yet in strict scientific analysis, it is indeed the
presence of oxygen that caused the fire.

In other words, in law, we are not concerned with the factual or de facto scientific cause –
were it to be so, no one will ever be held to have caused an event.

Our concern, therefore, is legal cause – that is – a finding of the person that set a chain of
events in motion.

In law, to cause, is to bring about an event or state of affairs by one’s own act or endeavor.
Causation is treated under sections 13, 64 and 81 of Act 29.

By section 13(7), it is a question of fact whether an event is fairly and reasonably to be

ascribed to a person’s act to have been caused by that act.

To establish the responsibility of the accused for the actus reus, it must be proved that the
accused caused or contributed to cause the prohibited event.

So if no connection can be established between the act of the accused and the ensuing
event, the accused will be exculpated from liability

A case in point is R v. Yeboah – The accused was seen one evening leading a group of
people who were chasing an unknown man and shouting “thief” “thief”. The following
morning, a fatally injured man was discovered a short distance from the direction of the
chase. He died and the accused was charged with the murder. It was held that there was no
evidence connecting the accused with the death of the deceased.

The lesson here is that mere suspicion will not do.

The situation we have just described relates where only one person act is in question or
where only one person is alleged to have acted.

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What about the situation where the acts of several persons cause or contribute to cause an
event?

This is the area of Joint Causation.

Where the several acts of several persons result in a proscribed event or state of affairs, it is
the act that is proximate to the occurrence of the event or state of affairs that may be
instructive.

Thus, section 13(3) provides that:

“Where an event is caused by the acts of several persons acting jointly or
independently, each of the persons who intentionally or negligently
contributed to cause the event has…caused the event; but a matter of
exemption, justification, extenuation, or aggravation which exists in the
case of any one of those persons shall have effect in favour of that one
person, whether it exists or not in the case of any of the other persons”

So as the illustration in the Act goes…

See also the case of R v. Waters

It is clear from the second part of section 13(3) that the accused’s act must not be a purely
trivial cause of the event – this is what is known as the defense of minimal causation –
captured in the Latin phrase – de minimis contribution – that is trivial or minimal
contribution.

The rule from the second part of section 13(3) is that a trivial or de minimis contribution
operates to exculpate the accused from liability.

A case in point is R v. Cato – in that case it was explained that a trivial or minute
contribution to causing an event will not suffice for the purpose of establishing criminal
liability.

In all these, it must be stressed that there must be an unbroken chain of causation between
the act of the accused and the event.

Thus, although the accused may have set a chain of events in motion, if a factor or the act
of another person interposes itself between the act of the accused and the ensuing event to
break the chain of causation, the accused will not be held liable.

This is the concept of novus actus interveniens – that is a new intervening act.

The question here is this: can you hold a man responsible for doing an act sufficient
to produce harm, with the intention of producing the harm, even if the act strictly
cannot be said to have caused the harm?

For instance, A., intending to kill C, inflicts a serious wound on C. B., without being asked,
joins in and actually kills C. B’s culpability is certain, but what about A?

On this point, section 13(4) provides:

A person shall not be convicted of having intentionally or negligently
caused an event if, irrespective of the act person and the acts of any of the
persons acting jointly with that person, the event would not have happened
but for the existence of a state of facts, or the intervention of any other

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 event or of any other person, the probability or the existence or
intervention of which other event or person the accused did not take into
consideration

Under this principle, the chain of events is broken when a third force intervenes to change
the course of the train of events that the accused set in motion – but this is so only if the
accused had no cause to take that factor into account while directing his mind to his action
or if it was an unforeseen event.

So as the illustrations in the Act go…

Under what specific circumstances may we conclude that an intervening event has broken
the chain of causation to exculpate the accused from liability?

The first circumstance is as follows:

Does the resort to the use of persons under a disability break the chain of causation?

In other words, does the use of Involuntary Agents break the chain of causation?

An involuntary agent is defined under section 13(2) as an animal or any other thing, and
also a person who is exempted from liability to punishment for causing the event, by reason
of infancy, or insanity.

The rule is that a person who intentionally causes an involuntary agent to cause an event,
shall be deemed to have caused the event – s. 13(1).

The rationale is that an involuntary agent does not possess the requisite mens rea – the
mens rea at all times remains with the person who resorted to the use of the involuntary
agent

So as the illustrations in the Act go…

A case in point is R v. Michael – in that case, the accused bought a bottle of laudanum and
handed it to a woman named Stevens with instructions to administer it to the accused’s
child. Stevens left the bottle on the mantelshelf and another child of five picked it and
administered to the other child and it died. It was held that the accused was guilty of murder
since the administration of the poison by an unconscious agent was equivalent to
administration by the accused herself.

See also R v. Saunders (1573) 2 Plowd 473

The second circumstance is as follows: does an act done, not out of legal duty, but out of a
moral obligation operate to break the chain of causation?
Here the rule is that an act reasonably done to rescue the victim or render medical
assistance, even if the actor is not legally bound to help, does not relieve the accused from
liability, if death occurs from the attempt to rescue or to render assistance

This is because in terms of section 13(4), the accused ought to have contemplated that
some person, upon seeing the victim writhing in pain from the harm he has visited upon the
victim, would attempt to rescue or render assistance to the victim

A case in point is R v. Smith – in that case the appellant, who was a soldier, stabbed
another soldier in a barrack-room fight. There followed a series of unfortunate occurrences.
A fellow-member of his company tried to carry him to the sick bay but he tripped over a wire
and dropped him. He picked him up again, went a little farther and fell with him again. He

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left the victim on the ground and went for help. At the sick bay, the victim was given
medical treatment which turned out to be inappropriate and he died. The appellant was
convicted for murder.

Lord Parker J. opined that:

It seems to the court that if at the time of death the original wound is still an
operating cause and a substantial cause, then the death can properly be said to be
the result of the wound, albeit that some other cause of death is also operating. Only
if it can be said that the original wound is merely the setting in which another cause
operates can it be said that the death does not result from the wound. Putting it
another way, only if the second cause is so overwhelming as to make the original
wound merely part of the history can it be said that death does flow from the wound.

The third circumstance is this: does an act done to avoid detection of an earlier act operate
to break the chain of causation?

The question arises whether a person should be held liable for doing an act with the
intention of causing an event but unknown to him the act does not cause the desired event.
Then laboring under the mistaken belief that he has caused the desired event, he proceeds
to a second act of covering up the first act to avoid detection or punishment. But it turns out
that the second act, and not the first, actually caused the desired event. The question here
is whether the second act, done in the mistaken belief that the first act had caused the
intended event, operates to break the chain of causation.

For e.g. A, intending to kill B, hits him on the head with a crow-bar. However, unknown to A,
the hit did not kill B as he intended but merely rendered him unconscious. A, then, laboring
under the mistaken belief that B is dead, proceeds to place him under a grove, in an attempt
to cover up the death of B. B, then, dies of exposure under the grove.

The difficulty here is that the second act was done without the requisite mens rea.
The rule here is that, A would still be liable and the act of concealment will not be held to
have broken the chain of causation.

So in Thabo Meli [1954] 1 WLR 228, the appellants, in accordance with a preconceived
plan, took a man to a hut, gave him beer so that he was partially intoxicated, and then
struck him over the head. They, believing him to be dead, took his body and rolled it over a
cliff, dressing the scene to make it look like an accident. In fact, the man was not then dead,
it being established from medical evidence that the final cause of his death was exposure
when he was left unconscious at the foot of the cliff. The appellants contended that the two
acts were separate acts, and that, while the first act was accompanied by mens rea, it was
not the cause of death, but that the second act. While it was the cause of death, was not
accompanied by mens rea, and that, therefore, they were not guilty of murder. The court
rejected this argument.

Lord Reid observed that:

It appears to their Lordships impossible to divide up what is what really one series of
acts in this way was. There is no doubt that the accused set out to do all these acts in
order to achieve their plan, and as part of their plan; and it is much too refined a
ground of judgment to say that, because they were under a misapprehension at one
stage and thought that their guilty purpose had been achieved before, in fact, it was
achieved, therefore they are to escape liability the penalties.

Then there are provisions in the Act that relate solely to causing death and the question is,
under what circumstances may we conclude that there has been a novus actus
interveniens, that is, an event which breaks the chain of causation.

12
So we will discuss the fourth circumstance under the heading, Take Your Victim as Find
Him

It is said that since we are destined or fated to die at some time, every instance of killing is
an instance of accelerating death – therefore no one is allowed to play God by determining
how long a person should live – therefore hastening a person’s death by as little as 3
minutes is still criminal homicide – so it is no defense to a person who stabs another to show
that the victim was already dangerously ill.

In the same vain, we have what is called the egg-shell skull concept – to put it crudely, in
harming your victim, you should assume that his skull is as fragile as an egg-shell.

So in causing a person’s death, you will not be heard to say that other people, subjected to
the same kind of treatment would have died.

Our response is that “You take your victim as you find him, warts and all”.

So then, what if the victim suffers some illness which might probably cause his death and
the accused applies a blow to ignite the disease to hasten his death – this is the situation of
co-existing circumstances.

The question is: does the co-existing disease operate to break the chain of causation?

A long time ago, Matthew Hale posited that “if a man be struck of some such disease which
possibly by course of nature would end his life in half a year and another gives him a wound
or hurt which hastens his end by irritating and provoking the disease to operate more
violently or speedily, this hastening of his death sooner than it would have been is homicide
or murder”.

In other words, an existing illness or susceptibility of the victim does not negative causal
connexion.

This old common law position is still good law in today’s Ghana.

So s. 64(a) provides that

the death of a person is caused by harm, if by reason of the harm, death
has happened otherwise or sooner, by however short a time, than it would
probably have happened but for the harm
Section 64(b) also follows up with the provision that:
it is immaterial that the harm would not have caused the person’s death
but for the infancy, old age, disease, intoxication, or any other state of
body or mind of that person at the time when the harm was caused

A case in point is R v. Twum v. The Republic – in that case, the appellant hit the
deceased, an able-bodied and healthy looking policeman, in the face. The deceased fell
down and bled from the nose and mouth and he died the next day. The medical evidence
showed that apart from the cracked skull resulting from the blow, the deceased had oedima
of the lungs which could have killed him later. It was held, on appeal, that despite the
evidence of oedima, the blow was the proximate cause of death.

Still under Take Your Victim as You Find Him, what if the victim refuses treatment after
the harm caused and dies as a result – does this break the chain of causation to exculpate
the accused from liability?

13
Sometimes the victim may refuse treatment on religious grounds – for instance, Jehovah’s
Witnesses abhor blood transfusion – so what if you cause harm to a member of the sect and
he/she refuses to undergo blood transfusion which is necessary to heal him/her and he/she
dies as a result – will the accused be liable.

What about some spiritual churches that believe strictly in faith healing and therefore refuse
conventional treatment?

On another score, what if the victim chooses her form of treatment and refuse to undergo
the proper or recommended treatment?

Then again, what if victim does not proper care of herself after the harm has been caused
and she dies as a result?
The law is reluctant to find that the failure on the part of the victim to observe proper
precautions for her own health, or her refusal to undergo medical treatment, breaks the
chain of causation.

Thus, ordinarily the refusal of the victim to undergo treatment or her lack of proper care for
herself does not break the chain of causation.

Under our law, the want of proper care by the victim breaks the chain of causation only
when there was extraordinary neglect on the victim’s part to attend to his wounds.

In other words, the victim’s action or inaction after the infliction of harm does not break the
chain of causation unless the victim’s behaviour subsequent to the injury was unreasonable.
So section 64(c) provides that:
It is immaterial that the harm would not have caused the person’s death
but for the refusal or neglect of that person to submit to or seek proper
medical or surgical treatment, or but for the negligent or improper conduct
or manner of living of that person, or of treating the harm, unless the
person so acting was guilty of a wanton or reckless disregard of that
person’s own health or condition

Thus, the catch is that the victim’s refusal to undergo medical treatment or her lack of
proper care of herself subsequent to the injury does not break the chain of causation
between the harm inflicted by the accused and her death, unless the victim’s conduct
amounts to a reckless and wanton disregard for her own health or condition.

The question is: what amounts to wanton or reckless disregard for one’s health or
condition?

The Act does not contain a definition or an explanation of this concept.

We will consider two English cases in which the issue arose.

The first is R v. Holland – in that case, the accused waylaid the victim and assaulted him,
severely cutting off one of his fingers. The surgeon advised the victim to have his finger
amputated, telling him that unless it were amputated his life would be in great danger. But
the victim refused to allow amputation. An infection of lockjaw set in which ultimately
caused death.

On these facts, would you say that the behavior of the victim amounted to a
wanton or reckless disregard of his health or condition?

14
Well, it was held that the death of the victim was a consequence of the original
assault by the accused

This is very typical of what I said previously that the law is reluctant to find that the failure
on the part of the victim to observe proper precautions for her own health, or her refusal to
undergo medical treatment, breaks the chain of causation.

The second case is R v. Blaue and it gets even more interesting

The victim was a girl of 18. She was a Jehovah’s Witness. She professed the tenets of the
sect and lived her life by them. One afternoon, the appellant came into her house and asked
for sexual intercourse. She refused. He then attacked her with a knife inflicting four serious
wounds. One pierced her lung. She lost a large quantity of blood and was told by the surgical
registrar that a blood transfusion was necessary. She refused the transfusion on the ground
that it was contrary to her religious beliefs. She was told that if she did not have the
transfusion she would die. She persisted in here refusal and she died the following day. The
physical cause of death was the bleeding into the pleural cavity arising from the penetration
of the lung. The appellant contended that the girl’s refusal of transfusion was unreasonable
and that it had broken the chain of causation.

Lawton LJ had this to say:

The physical cause of death in this case was the bleeding into the pleural cavity
arising from the penetration of the lung. This had not been brought about by any
decision made by the deceased girl but the stab wound. Counsel for the appellant
tried to overcome this line of reasoning by submitting that the jury should have been
directed that if they thought the girl’s decision not to have a blood transfusion was
an unreasonable one, then the chain of causation would have been broken. At once
the question arises – reasonable by whose standards? Those of Jehovah’s Witnesses?
Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the
Clapham omnibus? But he might well be an admirer of Eleazar who suffered death
rather than eat the flesh of swine or of Sir Thomas Moore who, unlike nearly all his
contemporaries, was unwilling to accept Henry VIII as Head of the Church in England.
Those brought up in the Hebraic and Christian traditions would probably be reluctant
to accept that these martyrs caused their own deaths…
It has long been the policy of the law that those who use violence on other
people must take their victims as they find them. This in our judgment means
the whole man, not just the physical man. It does not lie in the mouth of the assailant
to say that his victim’s religious beliefs which inhibited him from accepting certain
kinds of treatment were unreasonable. The question for decision is what caused her
death. The answer is the stab wound. The fact that the victim refused to stop this end
coming about did not break the causal connection between the act and the death.

Once again, we see an example of the judge’s fidelity to the policy of the law being reluctant
to find that the failure on the part of the victim to observe proper precautions for her own
health, or her refusal to undergo medical treatment, breaks the chain of causation.

Indeed, I have not come across a decided case in which it was held that the victim’s refusal
to undergo medical treatment broke the chain of causation.

Yet, there is an important point to note.

It would be seen from the two English cases just discussed that the judges declined to
consider a possible defense that the victims perhaps acted unreasonably – this may be as
result of the circumstances surrounding the deaths of both victims.

15
However, under Ghanaian law, as we have seen from section 64(c), the victim’s wanton or
reckless disregard for her health or condition operates to break the chain of causation.

This implies that in Ghana it is a defence available to the accused for the court to consider

We have not had any case in Ghana on this point – but it has been argued, notably by Prof.
Mensa-Bonsu that a case bearing a fact pattern similar to that in R v. Blaue would produce
the same result in a Ghanaian court.

There is force in this suggestion – but what is your take on it in light of the provisions
of the Constitution?

Is refusal of treatment unreasonable?

Is the constitutional guarantee of freedom of belief uncurtailed?

It is a tough moral question.

Now, what if the victim is subjected to improper medical treatment subsequent to the harm
and she dies as a result?

The question stated differently is this: does negligent mistreatment operate to break the
chain of causation?

On this point section 64(d) provides:

Death is caused by harm if the death is caused by the medical or surgical
treatment of the harm, unless the treatment is grossly negligent or unless
the death could not have been foreseen as a likely consequence of the
treatment.

The effect of this provision is that medical or surgical treatment cannot, in law, be regarded
as a cause of death as long as the surgeon or physician does by way of approved medical
practice, what is proper and necessary to relieve the pain and suffering even if the measures
incidentally shorten life.

The underlying philosophy is that medical treatment is intended to lessen pain and to save
lives – thus, the acts of physicians ordinarily do not break the chain of causation.

Therefore, unskillful treatment does not relieve the accused from liability unless:
 death could not have been foreseen as likely consequence of the treatment, or
 the treatment is grossly negligent.

Mere negligence will not suffice – the negligence contemplated here must be so great as to
support a conviction for manslaughter – that is – the negligence must amount to a reckless
disregard for human life.

R v. Basare and R v. Malcherek

In Basare, one Atta Kofi and his son were returning from their farm one morning when they
saw Kwaku Basare carrying away a bag of cocoa from their verandah. They shouted to
Basare twice to put it down. Having put the bag down, he went in the direction of a palm
tree, took up a gun and shot at Atta Kofi, killing him. Basare was convicted for murder. On
appeal, it was argued that the trial judge erred in failing to consider whether the treatment
given to the deceased in hospital may have been responsible for his death. In delivering the
judgment of the Court of Appeal, Granville Sharp had this to say:

16
 …it is enough to say that death resulting from treatment of a wound unlawfully
inflicted does not, however inadequate such treatment may have been, exonerate
the person who inflicted the wound from responsibility in law for the consequences of
his act, unless the treatment itself amounts to murder or manslaughter.

R v. Malcherek [1981] 1 WLR 690 CA

The accused stabbed his wife nine times with a kitchen knife. She was put on a life support
machine for a while, but was taken off it when she was found to be brain-dead. Appellant
argued that he had not caused the death, since it was the act of taking her off the machine
that had caused the death.
It was held that the discontinuance of the treatment does not break the chain of causation
between the initial injury and death where the doctor comes to the conclusion, bona fide
and conscientiously, that the victim is for all practical purposes dead and that vital functions
as exist are maintained solely by mechanical means and therefore discontinues treatment.

Still on the same point, some jurisdictions distinguish between cases where the original
wound was mortal and cases where it was not

Therefore, for instance, you will find in those jurisdictions that were the original wound is not
mortal; the accused is excused from responsibility.

An example may be found in the 1878 Michigan case of People v. Cook (1878) 39 Mich.
236. The accused inflicted a dangerous wound on the victim but the death was immediately
occasioned by an overdose of morphine. The jury was instructed that only if the wound was
not in itself mortal and death was caused solely by the morphine must they acquit

In Ghana, we do not insist on a distinction between mortal wounds and non-mortal wounds

But clearly, if the original wound is mortal and it leaves the victim no chance of survival,
then the accused will be liable no matter the nature of the treatment – this is because the
circumstances that call for a consideration of the contribution of negligent mistreatment do
not arise

Now, we come to a very important consideration: does time lapse break the chain of
causation with respect to harm that causes death?

The question is, with respect to causing death, should we stop the buck at some point in
time to relieve the inflector of the harm from liability?

In the 1908 English case of R v. Dyson, Lord Alverstone, CJ stated that unless the death
occurred within a year and a day of the time when the injuries causing it were
inflicted, the person charged could not be convicted of manslaughter, and this is
the law of England today.

Indeed, this is also the law in Ghana today.

Sec. 64(e) provides that:

Death is not caused by harm unless the death takes place within a year and
a day of the harm being caused.

Therefore, the accused cannot be held liable if the victim died a year and a day after he
inflicted the harm.

Therefore, in this restricted circumstance, time lapse may operate to break the chain of
causation.

17
So much for novus actus interveniens

Now let us consider another aspect of causation.

May the accused be held liable for death caused by acts that inflict emotional distress,
psychological harm and those believed to be caused by witchcraft or other supernatural
forces?

We turn to sec. 81(b) which provides that:

The disease or disorder which a person suffers as the inward effect of grief,
terror, or emotion is not harm caused by another person, although the
grief, terror, or emotion has been caused by that other person whether
with intent to cause harm or otherwise.

This provision is steeped in the consideration that the harm that causes death must be
physical harm.
Therefore, an act done calculated to cause harm not by physical means but through
emotional distress and psychological harm will not fix the accused with liability.

So the principle in Wilkinson v. Downton does not apply here.

In the same vain, the tort principles on nervous shock do not apply here.

Then again, a person is not blameworthy for causing an event through spiritual means – so
in law one is not liable for causing death through witchcraft or juju.
In the same vain, one cannot set up a person’s witchcraft as a defense for inflicting harm on
her.

So in the case of R v. Gadam 14 WACA 442, where the appellant killed the deceased for
having bewitched his wife, the judge held:
I have no doubt that a belief in witchcraft such as the accused obviously has is
shared by the ordinary members of his community. It would, however, in my opinion
be a dangerous precedent to recognize that because of a superstition, which may
lead to such a terrible result as is disclosed by the facts of this case, is generally
prevalent among a community, it is therefore reasonable.

Now, let us consider the issue of contributory negligence in causation.

The question is: can an accused set up the contributory negligence of the victim to
exculpate him from liability?

On this point sec. 81(c) provides that:

…a person is not excused from liability to punishment for causing harm to
another person, on the grounds that the other person personally, by
trespass, negligence, act, or omission, contributed to cause the harm

Thus, it does not lie in the mouth of the accused to assert that the harm was caused by the
victim’s contributory negligence.

But what if the actus Reus occurs in one jurisdiction and the mens rea was formed in
another jurisdiction, as in being in one jurisdiction and causing an involuntary agent to cause
harm in another jurisdiction?

What if the actus reus is began in one jurisdiction but is completed in another jurisdiction –
as in causing harm to a person in one jurisdiction but death occurs in another jurisdiction?

18
For the answers to these questions, let us turn to
 sections 13(4)

 Sec. 68
A person who intentionally and unlawfully causes harm to any person
commits a second degree felony.

It should be noted that all the rules on causation are applicable to inchoate offences as
attempt, conspiracy and abetment
- sec. 13(6)
CAPACITY AND DEFENCES

The criminal law is backed by punitive sanctions – the offender therefore faces, upon
conviction, the prospect of punitive sanctions, unless pardoned by the President.

Due to the infliction of punishment for the breach of criminal prohibitions, the law recognizes
that it is not every member of our society that is amenable to punishment either due to
congenital defects, infancy or some other incapacity.

Therefore, certain persons are exempted from the operation of the criminal law – a curious
example is that in the UK, the Crown cannot be prosecuted because that would be Regina v.
Regina, which was thought to be impossible – indeed, the courts belong to the Queen and so
she cannot be prosecuted before them.

We have a similar provision in our Constitution – Article 57(5) provides that: “The President
shall not, while in office as President, be personally liable to any civil or criminal proceedings
in court”.

Therefore, for as long as he remains in office, the President is insulated from the operation
of the criminal law.

Infants

We have established that the requirements of criminal liability are a guilty act and a
prohibited state of mind - the mental element in criminal liability supposes that the offender
is capable of making moral choices – in the sense that he able to appreciate the difference
between right and wrong - this in turn presupposes that the offender’s mind is mature and
sound enough to appreciate the nature of the choice he makes.

Infancy raises problems of criminal responsibility.

The child may engage in a prohibited act but is her mind mature enough to appreciate the
difference between right and wrong – and to appreciate the nature of the choice (if it is a
choice) he makes?

Here, we are speaking about responsibility in the sense of moral or legal accountability.

A person is morally responsible if he can justly be blamed and punished for wrong-doing –
the policy is that children below a certain age do not fall in this category – so on that score,
she is not legally responsible.

19
It is recognized that a child of a certain age is immature and hence incapable of making
moral choices – in the sense of distinguishing between right and wrong.

Thus, an act done by such an infant, which would otherwise constitute a crime, is excused
on the basis of legal incapacity.

The policy question is: At what age does one wish to administer legal punishment to child?

It all depends on a society’s conviction of the age of criminal majority.

At common law, the age of criminal responsibility was 7 – but it has been raised to 10 years.

In Ghana, the age of criminal responsibility is 12 years – it used to be 10 years until the law
was amended in 1998.

Thus, sec. 26 provides that:

For the purposes of the criminal law a person under twelve years of age is
incapable of committing a criminal offence.

Therefore, as the illustration goes:

A, aged eleven (11) years administers poison to B. A is not criminally
responsible and is considered incapable of understanding the
consequences of those actions from a legal perspective

So the point is that in Ghana a child under 12 yrs is deemed to be incapable of forming mens
rea – hence incapable of committing a crime due to an undeveloped capacity to appreciate
the difference between right and wrong.

Therefore, we say that a child under the 12th birthday is doli incapax – has no capacity
for mischief – as opposed to doli capax – capacity for mischief.

At common law, as illustrated by R v. Gorrie, there was what was termed mischievous
discretion – where, in respect of a child between7-14, the presumption of innocence could
be rebutted by evidence that the child knew that what he was doing was wrong.

Under the concept of mischievous discretion, the presumption of innocence could be

rebutted by evidence of the child’s state of mental development.

Thus, at common law, the law took cognizance of the fact that some infants develop faster
than others – thus, those whose mental faculties developed faster and were held to
appreciate the right from wrong, were held liable for their actions.

So a subject test was applied to ascertain whether the child’s moral sense was sufficiently
developed to make it possible for her to be held criminally responsible for her actions.

The concept of mischievous discretion is not applicable in Ghana.

In Ghana, the law conclusively presumes a child under 12 yrs to be incapable of

committing a crime, period.

However, there is an unsettled issue in the area of sexual offences with respect to children
between ages 12-16 years.

In Ghana, the age of sexual consent is 16 – a child below 16 is incapable of giving his/her
consent to sexual conduct.

20
Therefore, under sec. 101, a person who engages in sexual conduct with a child under 16
yrs is guilty of defilement – it does not matter whether the child consented to the act.

So the question of sexual consent is settled where the child is a victim of a sexual offence.

But what if the child is the perpetrator of a sexual offence?

What if a boy of 14yrs forcibly has sex with a girl of 13yrs?

Or what if a boy of 15 forcibly has sex with a girl of 17?

Should he be liable?

The problem is this: Under sec. 26 the boy is doli capax, that is, he is capable of committing
a crime, because he is above 12 yrs – however, under sec. 101, the law is that he cannot
give his consent to a sexual act – so wherein lies his liability?
At common law, an attempt is made to solve this problem by the institution of an
irrebuttable or a conclusive presumption that a child under 14 yrs is incapable of committing
rape – that is, he is malita non supplet aetatem – physical incapacity to commit the
offence.

There appears to be no concept of malita non supplet aetatem on this point under the
Criminal Offences Act.

Thus, the Ghanaian situation appears to be a case of being between a rock and a hard place,
or as they say, between the devil and the deep blue sea – on the one hand, we have the age
of criminal majority of 12 yrs, so the boy of 14 who forcibly has a sexual connection with
another person is caught squarely – however, the sec. 101 says a boy of 14 has no capacity
to consent to sex.

What is your take on this issue?

It would appear that with respect to sexual offences, criminal liability is functionally
determined – in the sense that as a victim, a child between ages 12-16 is held incapable of
consenting, but as a perpetrator, the same child is held malita supplet aetatem – physically
capable of committing rape.

Is it reasonable to hold the child to such double standards?

Now let’s consider the defences.

Defences are either partial or complete.

A complete defence operates to exculpate the accused from liability.

A partial defence does not entirely excuse criminal liability – it goes either to reduce a
charge to a lesser offence or to reduce punishment to a lesser sentence.

Ignorance or Mistake of Fact

Ignorance or Mistake of Law

Ignorance of fact can excuse from criminal responsibility.

However, ignorance of the law cannot excuse from criminal responsibility – or as we say,
ignorance of the law is no excuse – ignorantia juris non excusat.

21
It is said that a person who acts in ignorance of a fact has no intention of engaging in a
forbidden conduct.

However, a person who acts not in ignorance of a fact but in ignorance of the law, intends to
engage in the prohibited conduct, although she does not know that that conduct is
prohibited by law.

Do you think this is fair?

So in R v. Tolson, it was held that a bona fide belief in the death of her husband at the time
of her second marriage afforded a good defence to the accused on a charge of bigamy.

Cave J. remarked in that case that:

At common law an honest and reasonable belief in the existence of circumstances
which, if true, would make the act for which a prisoner is indicted an innocent act,
has always been a good defence. This doctrine is embodied in the somewhat uncouth
maxim Actus non facit reum, nisi mens sit rea. Honest and reasonable mistake
stands, in fact, on the same footing as absence of reasoning faculty, as in infancy, or
perversion of the faculty, as in lunacy.

See also R v. Wheat & Stocks

The appellants were convicted of bigamy and they made an appeal and argued that they
believed on reasonable grounds, though erroneously, that the man was divorced in his
previous marriage.
The court decided that it was not a good defence and upheld the earlier decision.

So sec. 29 provides:
(1) A person shall not be punished for an act which, by reason of
ignorance or mistake of fact in good faith, that person believes to be
lawful
(2) A person shall not, except as in this Act otherwise expressly
provided, be exempt from liability to punishment for an act on the
grounds of ignorance that the act is prohibited

The case of Nyameneba v. The State is very instructive – in that case, the appellants
were members of a certain religious sect. For four years or more prior to their arrest they
had been using certain herbs and been using them for all sorts of things – they had been
burning the herbs as incense for invocation at their worship, making soup out it, boiling and
using it themselves or administering it to other people as medicine for all kinds of ailment
with success.

They alleged that the father of one of them, upon spiritual inspiration, discovered these
herbs and the sect had ever since used them publicly to the good of all the members and
their associates. They called the herbs, “The herbs of life.” A chemical analysis carried on
the herbs proved them to be Indian hemp. However, the appellants insisted that the herbs
could not be Indian hemp, whatever it was.

It was held that the appellants appeared to be genuinely ignorant of the nature and quality
of the drugs. They were, therefore, entitled to a defense of mistake of fact under section 29.

Reliance on custom appears to be no defense under sec.29(2)

Foli VII v Republic– in that case, the appellants were charged with causing harm to a
corpse they had cremated without lawful authority. One of the appellant’s ground of defence

22
was that it was an established and long-standing custom in their area that any person, such
as the deceased, who had violated custom but was not purified before dying should not be
accorded a decent burial but should be cremated.

In rejecting this defence, it was held that a custom could not be validated merely because it
was an established and long-standing one within a particular locality when that custom was
contrary to statute.

The rule in sec. 29 applies to both mala in se and mala prohibita offences.

The rule finds its justification in the consideration that a person is expected to know his legal
obligations – so she is expected to know of the existence and content of every law.

Certainly, the rule in sec. 29 must, of necessity, work injustice in numerous situations.

For how can a person reasonably be expected to know of the content of every law?

If this can be achieved by city dwellers, what about rural dwellers? How do we expect my
illiterate grandmother in the Kwahu-South District to know of the contents of the Criminal
Offences Act?

The realists will tell you that the prophecies of what the courts may do in fact and nothing
more pretentious are what constitute law – this means that it is eventually how the courts
interpret the provisions of the Criminal Offences Act that is most instructive and not merely
the black letter of the Act.

There is force in this contention, because ultimately, it is the duty of the judges to determine
the meaning of the provisions of the Act.
So even if a person apprises herself of the content of the law, are we being fair to her by
presuming her to know the law when she cannot predict how the judges would resolve an
ambiguity?

It is not only knowing how the judges may resolve an ambiguity on a particular occasion, for
we know that in deciding cases judges consult precedents to come to a decision – the
implication of this is immense – it implies that perhaps a person needs something more than
a copy of Act 29 to know the state of the criminal law, but that she needs a whole law library
before she can reasonably be abreast with the state of the law.

Then again, even if she acquires this whole law library, will this be enough since she may not
understand the intricacies of legal principles?

However, two reasons are advanced in support of the rule in sec. 29, namely:
 It is difficult to prove that the accused knew the law, if there was no presumption
that he did know the law
 There is the risk that such a defense would make it advantageous for people to
deliberately refrain from acquiring knowledge of their duties by hiding under the
excuse of ignorance of the law.

Consent

23
Consent is a common law defence and it is not expressly stated as a defence under Act 29.

However, there are several offences in Act 29 that are defined requiring the lack of consent
– for instance, the offence of rape is made out when the lack of consent to sex is established
– another such offence is stealing – so a person who takes another person’s property with
that person’s consent is not guilty of stealing.

The nature of offences like rape and stealing implies that the existence of consent will
operate in the inability of the prosecution to make out the offence – hence the establishment
of consent on the part of the victim operates as a defence to entirely exculpate the accused
from liability.

It must be noted that in whatever form it takes, consent must be voluntarily given – that is,
freely given and the person giving the consent must be of full age and capacity.

Retrospective consent will not do.

On another score, consenting to something is very different from liking the thing or how
disagreeable you find the thing to be – for instance, if a woman consents to sex, she would
not be held later to complain that the act was disagreeable or that the sex was lousy – the
law is not interested in that fact.
Consent validly obtained and sanctioned by law excuses from criminal responsibility.

See Comfort v. The Rep [1974] 2 GLR 1

- P.A. and A.F. attended a spiritualist meeting in order that A.F. might be
exorcised of evil spirits. The prophetess, the first appellant, fell into a
trance in the course of exorcising the spirits and had no recollection of
what happened. Evidence led at the trial revealed that A.F. stood naked
before the assembled group and made no protest when the prophetess hit
her with a stick. There was further evidence, corroborated by two defence
witnesses, that P.A. hit the second appellant with a stick, although P.A.
swore that the reverse was the truth. The trial magistrate without giving
reasons convicted both appellants of assault and battery.

- It was held on appeal that by Act 29, s. 86 (1) consent generally negatived
any offence of assault and battery if the blows inflicted were in the opinion
of the court trifling and not likely to cause bodily harm. The onus of
negativing consent which was on the prosecution had not here been
discharged. There was also absence of malicious intent. In the
circumstances the first appellant was not guilty of any offence.

Consent is dealt with under sections 14 and 42 of Act 29.

Sec. 14 sets the specific rules on consent – while sec. 42 sets the limits to the giving of
consent.

The chapeau or the opening paragraph of sec. 14 sets the tone clearly that the defence of
consent arises where it is required that an act be done with or intended to be done without a
person’s consent or where it is required for a matter of justification or exemption that an act
be done with a person’s consent.

By sec. 14(a) the following persons cannot give consent to any act:
 A child under 12 yrs

24
  With respect to sexual offences, a child under 16 yrs
 Insane person
 A person who is unable to understand the nature or consequences of his action
by reason of immaturity
 A permanently incapacitated person
 A temporarily incapacitated person like an intoxicated person, or drugged
person or a comatose person.

So a purported consent obtained from any such person is void and incurably bad – it is
deemed as if they never consented at all, because the law regards them as incapable of
consenting to any action.

This flows from the consideration that an infant is not matured enough to consent and also
that an unconscious person cannot consent.

It also flows from the consideration that a person of subnormal intelligence may not give
consent.

So as the illustration goes,

A induces a person in a state of incapacity from idiocy or intoxication, or a child
under 12 yrs to consent to the hair of that person being cut off by A. the consent
is void

On another score, though consent may be apparent, it is vitiated if there was no real
opportunity for choice.

So consent is void if it is obtained by fraud or deceit – sec. 14(b).

Consent is obtained by fraud or deceit is void if it would have been refused but for the
existence of the fraud or deceit – sec. 14(f).

This is because the person giving the consent must be fully informed of the circumstances of
the transaction in order to make a fully informed choice.

Thus, half-truths will not do – whole falsehoods are even worse.

So as the illustration goes:

A by pretending to have the consent of a child’s father or under pretence of
medical treatment, induces the child to consent to sexual intercourse. The
consent is void. Or

A induces a woman to consent to having carnal knowledge of her by personating

her husband. Her consent is void.

A case in point is R v. Williams - In that case, the appellant was a Presbyterian choirmaster,
and it was arranged that he should give lessons in singing and voice production to Vera
Howley, a girl of 16 yrs, and subsequently it was arranged that he should give lessons to Ada
Cannell, a girl of 19 yrs. He had sexual intercourse with Vera under the pretext of creating a
passage in her vagina with his penis to make her sing better by easing her breathing since
she was not getting her notes right. It was held that the summing up of the trial judge in the
following terms was accurately stated:
The law has laid it down that where a girl’s consent is procured by the means which
the girl says this prisoner adopted, that is to say, where she is persuaded that what is
being done to her is not the ordinary act of sexual intercourse but is some medical or
surgical operation in order to give her relief from which she is suffering, then that is

25
 rape although the actual thing that was done was done with her consent, because
she never consented to the act of sexual intercourse. She was persuaded to consent
to what he did because she thought it was a surgical operation.
The lesson here is that it is immaterial whether perhaps the victim found the supposed
operation unexpectedly pleasant.

Contrast this case with the Canadian case of R v. Bolduc & Bird (1967) 63 DLR (2nd) 82
– in that case, the first appellant was a doctor who, about to conduct a vaginal examination
of a patient, invited his lay friend, the second appellant to be present and watch the
procedure. The doctor introduced the friend as a medical intern and in consequence the
woman consented to his presence. The two persons were convicted of indecent assault on
the woman. On appeal, the convictions were quashed because although her consent had
been procured by fraud, it did not affect the nature and quality of the act, that is, the
medical examination, to which she consented. Also that the second appellant’s act did not
amount to indecent assault as he merely stood and looked on.

Duress also vitiates consent – sec. 14(b)

Consent is obtained by duress, if it would have been refused but for the duress – sec. 14(f).

So by section 1, an act done with force, harm, constraint, or threat, with intent to cause a
person, against that person’s will to do or abstain from doing an act vitiates consent.

So as the illustration goes,

A induces a child to have sexual intercourse by threats of false imprisonment. The
consent is void

For consent to be vitiated by duress, the act inducing consent need not be of extreme
violence.

If you submit to an act only because you are made to believe that without submitting you
will be overpowered and have the act done to you anyway, you have not consented in law –
for instance, an armed robber ordering a female occupier of the house he is robbing to
submit to sexual intercourse would not be heard to say that he did not apply any force so
the female occupier willingly consented to the act.

What if a debtor threatens not to pay back the money he/she owes you unless you
submit to sexual intercourse? Is your consent thereby vitiated?

Consent is also vitiated by the exercise of undue influence.

Undue influence involves one person taking advantage of a position of power over another
person.

So in general, the law, as a matter of policy, guards jealously the interests of the weaker
party in the following relationships:
 Parent/child
 Guardian/ward
 Priest/member of parish
 Solicitor/client
 Doctor/patient
 Employer/employee
So section 14(c) provides that:
Consent is void if it is obtained by or under the exercise of an official, a
parental or any other authority; and the authority which is exercised

26
 otherwise than in good faith for the purpose for which it is allowed by law,
is for the purposes of this section, a power unduly exercised.

For the purposes of consent, the exercise of authority is not limited to the exercise of
authority by way of command (as in the case of men of uniform), but includes influence or
advice purporting to be used or given by virtue of an authority – sec. 14(g)

Consent is obtained by the undue exercise of authority if it would have been refused but for
the exercise of authority
Under sec. 14(c), one of two situations may vitiate consent:
1. consent that is obtained by or under the exercise of any kind of authority; and

2. consent that is obtained by the exercise of authority by operation of law but which is
exercised otherwise than in good faith

Under the second form, since the consent is obtained by the exercise of authority by
operation of law, as long as it is within the confines of what is allowed by law, the consent is
valid – the underlying consideration for invalidating such consent is the presence of mala
fides – bad faith

If the consent is obtained by the exercise of authority in good faith, it may not be invalidated

So as the illustration goes:

A the chairman of a company, consents to B drawing money from the company to
which A knows B does not have a right. If A does not honestly believe that the
action is in the interest of the company the consent is void, and B commits the
criminal offence of stealing unless B has acted in good faith

However, under the first form, there is no consideration as to the bona fides or mala fides of
the obtaining of consent by or under the exercise of authority

Under the first form, as long as it is shown that the consent was obtained by or under the
exercise of authority, it is void without any consideration of whether or not there was good
or bad faith

Now let’s consider the cases under the obtaining of consent by the exercise of undue
influence

R v. Nichol – in that case, it appeared from the evidence of the victim, Ann Eliot, a girl of
13, that she was a student at a school managed by the wife of the accused. The wife was
absent for a few days and the accused assumed his wife’s position. On one occasion while
he was sitting in a chair and the girls, numbering seven, standing around him, he put his
hand up the petticoat of Ann Elliot, unbuttoned his breeches, took her hand, and, pulling her
toward him, put it into his breeches, so as to touch his private parts; and she continued in
that situation for the space of half an hour while she was reading. On another occasion, two
or three days afterward, when Ann Elliot was alone in the classroom, the accused sitting in a
chair took her between his legs, put his hand up her petticoat, unbuttoned his breeches,
pulled up her petticoat, put his private part in hers, and continued in that pose for a
considerable space of time. He then instructed her not to tell anyone. Ann Elliot maintained
that the acts of the accused were against her will.

In giving the accused to the charge of the jury, the trial judge observed that the girl was of
tender years, and the authority and influence of the accused were likely to have put her
more off her guard than she would naturally have been from her age and experience, and
that a fear and awe of the accused might check her resistance and lessen her natural sense

27
of modesty and decency; and that under such circumstances, less resistance was to be
expected than in ordinary cases. The jury found the accused guilty.

The principle to be gleaned from this case is that if a person in a position of authority
or influence, like a school master in this case, takes indecent liberties with a
person subject to his authority or influence without the person’s consent, though
the person does not resist, he is liable to be punished as for an assault

A case in point is Re T [1992] 4 All ER 649. Miss T was separately raised by her parents
who had separated when she was only 3yrs old. A custody order awarded custody of Miss T
to her mother. The custody order specifically stated that Miss T should not be brought up
according to the faith of Jehovah’s Witnesses – a faith her mother subscribed to. Miss T was
never baptized into the faith and the sect issued a press statement that Miss T is not and
has never been on of Jehovah’s Witnesses. But Mrs. T clearly sought in all other respects to
bring up Miss T with the view to her becoming a Jehovah’s Witness.

Miss T was involved in a road traffic accident when she was 34 weeks pregnant. She was
diagnosed of pleurisy or pneumonia. She filled a patient assessment form at the hospital and
in response to an entry which asked for the religious beliefs and relevant practices she filled:
Jehovah’s Witness (Ex) but still has certain beliefs and relevant practices. Her condition
became worse and it was decided that a caesarian was necessary to deliver. Before the
operation Miss T signed a refusal of consent for blood transfusion if it became necessary.
The form was countersigned by the midwife. The form contemplated that it was to be signed
by an obstetrician, but it was not so signed. Then again, contrary to what was stated on the
form, it was not explained to her that it may be necessary to give her blood transfusion so
as to prevent injury to her health, or even to preserve her life. Indeed, the form was read
and explained to her. She simply signed blindly. However, before she signed the form, she
had been put on pethidine, a narcotic drug. The doctor who observed her testified that she
was drowsy and was not compos mentis. Her condition deteriorated after the caesarian
that produced a stillborn baby. She was put on a ventilator and paralyzing drugs were
administered.

At the first court hearing, Ward J. decided that in the circumstances, it would not be unlawful
for her to be given a blood transfusion. Thereupon she was given a blood transfusion or
plasma. However, at the second hearing before the same judge, the doctor who observed
her changed his evidence completely. Ward J. therefore found that although Miss T was
under the influence of the painkilling pethidine, she had not lost her mental faculties and
was sufficiently capable of understanding the questions put to her concerning blood
transfusion. Ward J. also found that Miss T reached her decision to refuse blood transfusion
under the undue influence of her mother, but concluded that the decision was a voluntary
one and was not vitiated by any undue influence. The Court of Appeal took the view that
Miss T's refusal of consent was vitiated by her mother's undue influence. The Master of the
Rolls, Lord Donaldson of Lymington, observed:
A special problem may arise if at the time the decision is made the patient has been
subjected to the influence of some third party…The real question in each such case
is: does the patient really mean what he says or he is merely saying it for a quiet life,
to satisfy someone else or because the advice and persuasion to which he has been
subjected is such that he can no longer think and decide for himself? In other words,
is it a decision expressed in form only, not in reality?

Consent is also vitiated by a mistake of fact

Consent is obtained under a mistake of fact if the consent would have been refused but for
the mistake – sec. 14(f)

28
“a consent is, for the purposes of this section, obtained by means of deceit or
duress, or of the undue exercise of authority, or to have been given by reason of
a mistake of fact, if it would have been refused but for the deceit, duress,
exercise of authority, or mistake”

The mistake may be as to

 the nature of the act, or
 the identity of a person

However, it is not every form of mistake of fact that will operate to invalidate consent – it
must be a fundamental mistake
For as sec. 14(e) provides:
Consent does not have effect if it is given by reason of a fundamental mistake of
fact.

A fundamental mistake is one that goes to the root or the heart of a consent given.

Now let’s consider consent by third parties on behalf of another.

Sometimes, a person may consent on behalf of another for the doing of an act in respect of
that other person – for instance, a parent or guardian may give consent on behalf a child.

In law, such consent, when given, must be for the benefit or the good of the person on
whose behalf it is given – therefore, it must be given in good faith – if it is given in bad faith,
that is, not for the benefit of the person in question, the consent is void.

For as sec. 14(d) provides:

A consent given on behalf of a person by the parent, guardian of that
person, or any other person authorized by law to give or refuse consent on
behalf of that person is void if it is not given in good faith for the benefit of
the person on whose behalf it was given.

More than 10yrs after the interesting case of Miss T, another interesting but sad case
cropped across the Atlantic in the United States involving Terri Schiavo – discuss.

A case in point is Re A [2000] 4 All ER 961

Limitation on the Right to Consent

Owing to the seemingly inseparable link between the criminal law and morality, the question
often arises whether the law should interfere where acts between two consenting adults do
not affect other persons.

The question boils down to this: should we individuals autonomy of action or choice or
should we limit this by insisting that nothing should be done to a man if it is antisocial or to
his disadvantage, even if he consents? – that is, should we allow people the right to do what
they desire with their own bodies, so long as they do not harm others? – This has been the
debate between the libertarians and the authoritarians.

In most cases, the law defers to individual autonomy or right of action – so notionally,
anything may be done to a person if he consents to it – for instance, when you play soccer,
you consent to being tackled and when you box, you consent to being punched.

However, there are limits to the right to consent – the law may deprive us of the legal ability
to consent to certain acts that are regarded as immoral or socially injurious.

29
In Ghana, the limits placed on the right to consent are contained in sec. 42.
The first limitation is that a person cannot consent to his own death.

Thus, sec. 42(a) provides that:

The killing of a person cannot be justified on the ground of consent.

A case in point is R v. Cato – in that case it was established that although the victim had
consented to the injection of heroin, his consent was not generally a defense to a charge of
manslaughter.

Another case in point is R v. Pike – in that case, the accused caused his mistress to be
anaesthetized by the application of Carbon Tetrachloride (CTC) soaked on a rag for
inhalation, so that he could satisfy his sexual passion of copulating with an unconscious
woman. The mistress died as a result of the dangerous anesthetic and he was convicted of
manslaughter there was evidence that she consented to the act.

On this same point, a person who commits euthanasia cannot set up the consent of the
victim as an excuse.

Aside of death, a person cannot consent to the infliction of a wound or a grievous harm on
him – sec. 42(b)

It was explained by Stephen J in R v. Coney (1882) 8 QBD 534 at 551, that:

Where a person is indicted for inflicting personal injury upon another, the consent of
the person who sustains the injury is no defence to the person who inflicts the injury,
if the injury is of such a nature, or is inflicted under such circumstances, that its
infliction is injurious to the public as well as to the person.

A case in point is R v. Donovan – in that case, the appellant, for the purpose of gratifying a
perverted sexual passion, administered to a girl of 17 a fairly severe beating with a cane,
which left seven or eight red marks on her body. According to the evidence of one of the
witnesses, she overhead a telephone conversation between the victim and the appellant
wherein they were discussing the girl’s desire to experience this sexual passion. When they
met, the first remark the appellant made to the victim was: “Where would you like to have
your spanking, in Hyde Park, or in my garage.” The victim contended that she did not take
this remark serious. The appellant contended that the victim consented to the spanking. The
issue was whether the existence or lack of consent was essential to the guilt of the
appellant. Although the appellant was discharged for a misdirection of the jury, the Court of
Criminal Appeal stated the position of the law, the essence of which is captured in sec. 42(b)
that:
If the act is unlawful in the sense of being in itself a criminal act, it is plain that it
cannot be rendered because the person to whose detriment it is done consents to it.
No person can licence another to commit a crime. So far as the criminal law is
concerned, therefore, where the act charged is itself unlawful, it can never be
necessary to prove absence of consent on the part of the person wronged in order to
obtain the conviction of the wrongdoer. As a general rule, although it is a rule to
which there are well-established exceptions, it is an unlawful act to beat another
person with such degree of violence that the infliction of bodily harm is a probable
consequence, and when it is proved, consent is immaterial.

The exception here is that consent by a person for the infliction of a wound or a grievous
harm may be justified if the wound or harm is caused, in good faith, for the purposes or in
the course of medical or surgical treatment – sec 42(b).

30
However, consent to the use of force for the purpose of medical treatment does not extend
to improper treatment or negligent mistreatment – sec 42(c).
Still on medical treatment, consent may be given by a parent or guardian on behalf of a
child under 18yrs against the will of the child for the medical or surgical treatment or for the
benefit of the child – in such a situation, the child cannot revoke the consent – sec. 42(d).
- see Re W (A Minor)[1992] 4 All ER 627

Along the same lines, consent may be given by a prison authority on behalf of prisoner or by
a medical authority on behalf of an insane person for the use of force against that person for
the purposes of medical or surgical treatment or for his benefit – sec. 42(d).

In the case of an insane person, this provision makes perfect sense, but how do
we justify it in the case of an adult prisoner? Does the fact of incarceration
extinguish all rights of self-determination?

Still on medical treatment, force may, in good faith, be justifiably used on a person for the
purpose of medical or surgical treatment or for his benefit if that person is unable to give or
withhold consent by reason of
 intoxication, or
 insensibility – for instance PVS or coma

- Section 42(e)
“where a person is intoxicated or insensible, or is from any cause unable to
give or withhold consent, force is justifiable which is used, in good faith and
without negligence, for the purposes of medical or surgical treatment or
otherwise for the benefit of that person, unless a person authorised by that
person or by law to give or refuse consent dissents from the use of that
force”.
However, such consent may be revoked or given by a person authorized the intoxicated or
insensible person or by a person authorized by law.

What about harm caused in the course of a fight? Does a person who engages in a fight
consent to being harmed?

Flowing from the rationale underlying the provision in sec. 42 (b), a person who engages
another in a fight cannot justify, on the grounds of consent of that other party, force which
he uses with intent to cause harm to the other party – sec. 42(f).

This is so whether the fight was lawful or unlawful.

So under sec. 42(f), where the intent to cause harm is established, the consent to fight is
rendered ineffective in law as a matter of public policy whether the fight is lawful or
unlawful.

Does this apply to boxing organized according to the Queensbury Rules?

It would be difficult to establish that a blow delivered in a boxing bout was intended to cause
harm, unless perhaps one boxer head butts the other of kicks him

Revocation of consent

Consent once given, may be revoked, and when it is revoked, it ceases to have effect or
justify force – sec. 42(g)

What is the consequence for relying on invalid consent?

31
 - sec. 14(h)
Insanity

Insanity is more of a legal concept than a medical one – it is the law that determines
whether a person is insane based on his mental circumstances determined by medical
science.

There is no legal definition of insanity – it is a combination of factors or states of affairs from

which the law draws a conclusion as to the sanity or otherwise of a person.

At common law everyone is presumed to be sane.

The genesis of the defence of insanity may be traced to the 1843 case of M’Naghten or
McNaghten – the spelling of the defendant’s name varies in the law report – 8 ER 718.

Daniel McNaghten shot and killed Edward Drummond, the Secretary of Prime Minister Sir
Robert Peel, perhaps thinking it was Peel himself. McNaghten, who suffered from what today
would be called paranoia, was actuated by the morbid delusion that he was being
persecuted by “Tories”. He was acquitted on the ground of insanity.

The supposed leniency of the verdict caused a public outcry. The law of insanity was
debated in the House of Lords, and their Lordships decided to require the judges to advise
them on the relevant legal principles.

Five questions in all were put to 14 judges. But because the questions were not referable to
any particular case, the response of the judges technically could not be regarded as
precedent. However, the response of the judges, which came to be known as the McNaghten
Rules have been so followed and cited that it is now authoritative.

The five questions posed by the House of Lords were the following:
 what is the law respecting alleged crimes committed by persons afflicted with insane
delusion in respect of one or more particular subjects or persons: as for instance,
where at the time of the commission of the alleged crime the accused knew he was
acting contrary to law, but did the act complained of with a view, under the influence
of insane delusion, of redressing or revenging some supposed grievance or injury, or
of producing some supposed public benefit?
 What are the proper questions to be submitted to the jury, where a person alleged to
be afflicted with insane delusion respecting one or more particular subjects or
persons, is charged with the commission of a crime (murder, for example) and
insanity is set up as a defence?
 In what terms ought the question to be left to the jury as to the prisoner’s state of
mind of mind at the time when the act was committed?
 If a person under an insane delusion as to existing facts, commits an offence in
consequence thereof, is he thereby excused? and
 Can a medical man conversant with the disease of insanity, who never saw the
prisoner previously to the trial, but who was present during the whole trial and the
examination of all the witnesses, be asked his opinion as to the state of the prisoner’s
mind at the time of the commission of the alleged crime, or his opinion whether the
prisoner was conscious at the time of doing the act that he was acting contrary to
law, or whether he was labouring under any and what delusion at the time?

The response of the judges was essentially as follows:

The jurors ought to be told in all cases that every man is to be presumed to be sane, and to
possess a sufficient degree of reason to be responsible for his crimes, until the contrary be

32
proved to their satisfaction; and that to establish a defence on the ground of insanity, it
must clearly be proved that:
a) At the time of the committing of the act, the party accused was labouring under
such a defect of reason, from disease of the mind,
b) 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.

Act 29 retains the underlying principles of McNaughten but there are fundamental
differences.

The rationale underlying the defence of insanity is that since we look at a person’s state of
mind to determine his criminal liability, if by some reason he had lost his mental faculty at
the time of engaging in a prohibited conduct, we would say that his mind was absent or non-
existent and therefore no purpose will be served to look at his non-existent state of mind
since he had no mind – and thus his moral blameworthiness is also absent.

However, we do not proceed on the assumption that everyone is insane – so I said

previously that everyone is presumed to be sane.

Owing to this presumption of sanity, it is the duty of the accused to lead evidence to
establish his insanity on a balance of probabilities.

In Ghana, the presumption of sanity is rebutted where one of two situations is established,
namely
1. a defect in the mental faculty which renders the accused incapable of knowing the
nature and consequences of his actions; or
2. a mental delusion which renders the accused an unfit subject for punishment.

The defence of insanity is a partial defence – that is – a successful plea of insanity does not
lead to an acquittal – it leads to the pronouncement of the verdict of “guilty but insane” –
this is known as the special verdict provided for under sec. 137 of Act 30 – see the chapeau
or opening paragraph of sec. 27 of Act 29.
Under the special verdict, the insane convict is not treated like an ordinary convict – he is
kept away from society often in a mental institution “till the pleasure of the President be
known” – sec. 137 of Act 30.

So we say that criminally insane are kept under the President’s pleasure.

The rationale underlying sec. 137 of Act 30 and the chapeau of sec. 27 of Act 29 is that a
homicidal
maniac cannot be let loose on society, so although we free the criminally insane from
punishment, at the same time we compel them to undergo treatment for their own sake and
for the sake of society.

The special verdict of “guilty but insane” appears to be in conflict with the underlying
philosophy that an insane person is not morally responsible because his mind is non-existent
and so he cannot form mens rea – if he cannot form mens rea why do we say he is guilty
but insane? Why is he guilty if cannot form mens rea? – In England, they use perhaps a
more appropriate formulation – “not guilty by reason of insanity”.

The first situation that upsets the presumption of sanity – that is – a defect in the mental
faculty which renders the accused incapable of knowing the nature and consequence of his
actions, is treated under sec. 27(a), which provides that:

33
 Where a person is accused of a criminal offence, the special verdict
provided by Act 30 in the case of insanity is only applicable if that person
was prevented, by reason of idiocy, imbecility, or a mental derangement or
disease affecting the mind, from knowing the nature or consequences of
the act in respect of which that person is accused.

So as the illustrations go:

 If a person by reason of idiocy is incapable of knowing that the act of that
person will cause death, the special verdict applies
 If a person commits homicide by reason of a paroxysm of madness which at
the time makes that person incapable of considering that murder is a
criminal offence, the special verdict applies
 The special verdict is not applicable merely because it is proved that by
reason of a mental derangement the accused has a propensity to homicide

Idiots and imbeciles are persons of defective mental faculties or feeble-minded persons or
persons of subnormal intelligence.

It is not every idiot or imbecile or mentally deranged person or a person suffering from a
disease of the mind that can set up his condition as a defence upon his commission of a
crime.

To set up such mental condition as a defence, the person must show that he was prevented
by that condition from knowing the nature or consequences of the act – so the question is:
did the person know what he was doing?

If it happens that despite the person’s mental condition, if he knew what he was doing at the
time of the commission of the crime, he will be held liable.
So in R v. Windle [1952] 2 All ER 1 – case, the appellant was convicted of the murder of
his wife. He was a man of little resolution and weak character who was married to a woman
18yrs older than himself. His married life was very unhappy. His wife, in the opinion of the
doctors, though they never saw her, must have been certifiable, and was always talking
about committing suicide. The appellant became obsessed with this and discussed it with his
workmates until they were tired of hearing him, and on one occasion, one of them said “Give
her a dozen aspirins”. On the day of the crime the appellant seems to have given his wife
100 aspirin tablets, which was a fatal dose. Later, he told the police that he supposed he
would be hanged for it.

The defence at the trial was that he was insane. There was some evidence that the
appellant suffered from some defect of reason or disease of the mind. The doctor called by
the defence said it was a form of communicated insanity known as folie a deux which
arises when a person is in constant attendance on a person of unsound mind.

The appeal was dismissed. In delivering the judgment of the Court of Criminal Appeal, Lord
Goddard CJ observed:
The evidence that was given on the issue of insanity was that of the doctor called by
the appellant and that of the prison doctor who was called by the prosecution. Both
doctors expressed without hesitation the view that when the appellant was
administering this poison to his wife he knew was doing an act which the law
forbade…It may well be that in the misery in which he had been living with this
nagging and tiresome wife who constantly expressed the desire to commit suicide,
he thought she was better out of the world than in it. He may have thought it was a
kindly act to put her out of her sufferings or imagined sufferings, but the law does not
permit such an act as that…A man may be suffering from a defect of reasoning, but,

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 if he knows that what he is doing is wrong – and by ‘wrong’ is meant contrary to law –
he is responsible.

Flowing from this, the important consideration is the mental state of the accused at the time
he committed the act.

This may be ascertained from medical history and the acts of the accused contemporaneous
to the event; his acts immediately before or at the time of the act, or immediately after the
act.

A case in point is Williams – Mariama Williams was married to JB Lari. It appeared that Mr.
Lari had perhaps had a sexual connection with Mariama’s pre-marital daughter. It also
appeared that Mariama set fire to Mr. Lari and burnt him to death. She at first admitted
setting the fire but denied it at the trial. She set up insanity as a defence but the medical
witness who had attended her did not support her plea of insanity. She was convicted of
murder. She appealed. Although the appeal was allowed, her insanity defence was rejected.
The Court of Appeal held on this point that:
It is sufficient to state that the essence of a defence of insanity is that at the material
time of the act complained of the accused was suffering from such disease of the
mind that he could not be said to have known the nature and consequence of the act
committed by her. This state of mind, apart from evidence of history, is often
discovered by contemporaneous acts and behaviour of the accused, that is the
conduct of the accused immediately before or at the time or immediately thereafter
of the acts complained of. There was no evidence here of any abnormal behaviour by
the appellant in that respect…

On another score, a senseless killing lacking motive is not in itself an indication of a

deranged condition of the mind – other factors must add up to upset the presumption of
sanity.

So in Collins alias Derby – in the early hours of June 28, 1984, a young woman left her
house to take breakfast to her father in his farm. She got there only to discover her father’s
battered body in a stream under a bridge that divided his two farms. In attempting to drag
her father out of the water, she discovered he had sustained extensive injuries. Blood was
oozing from his mouth and the side of his neck. His teeth had been knocked out.

There was no eyewitness to the killing, which appeared a senseless one without motive. The
mystery would have remained complete but for circumstances that emerged later which
enmeshed the appellant in the drama. First, one witness saw him in the morning of the
killing with blood on his chest. She also identified a pair of sandals lying by the deceased as
belonging to the appellant. Another witness also saw him that morning around 4.30am
emerging “from the direction of the bush” path where the deceased was killed.

A white torn blood-stained trousers was found in the appellant’s room. Similarly soiled with
blood was a pillow on the appellant’s bed and a piece of cloth in the room.

The appellant disappeared from the community and resurfaced 9 months later in March
1985. There was a big scar on his left arm which he claimed to have sustained when he fell
down on a bridge between Adiembra and Kweikuma on a bush-path. It was the same bridge
straddling the stream which bisected the deceased’s two farms.
At the commencement of the trial, defence counsel sought an order from the court for the
psychiatric observation of the appellant. Counsel complained that he could get no
meaningful instructions since the appellant conceived himself as Jesus being persecuted by
the Jews. The mother testified that the appellant’s mental state had interrupted his nautical

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studies in England and Spain and caused his repatriation to Ghana and an enforced
residence at Ankaful.

The medical officer, who testified, dwelt on his medical history and spoke of his
schizophrenic tendencies which reflected in his escape from hospital and the conception the
appellant entertained of grandeur as a ship owner, a ship’s captain, a monarch of all he
surveyed.

The medical officer observed that his madness had abated in December 1983 after a full
treatment but a favorable prognosis could not be given since it depended on regular
medication which unfortunately the appellant did not avail himself of because he did not
attend hospital. Accordingly, the appellant’s schizophrenic mental state would persist.

Francois JSC, who delivered the judgment of the SC, observed:

A senseless killing lacking motive is not by itself an index of a deranged condition of
the mind. Other ingredients must supply the doubt of mentality…But where a history
of schizophrenia obtains, it should point to a possible mental defect.

The second situation which upsets the presumption of sanity – that is – insane delusion – is
treated under sec. 27(b) which provides that:
Where a person is accused of a criminal offence, the special verdict
provided by Act 30 in the case of insanity is only applicable if that person
did the act in respect of which that person is accused under the influence of
an insane delusion of a nature that renders that person, in the opinion of
the jury or of the Court, an unfit subject for punishment in respect of that
act.
So as the illustrations go:
 A kills B by reason of an insane delusion that B is attempting to kill A. Here
the jury will be justified in finding that A is not a fit subject for punishment
 A is subject to insane delusions. In an interval of freedom from these
delusions, A kills B. Here the jury ought to take into account the fact at
other times A was subject to delusions.

The consideration here is that the accused lives in a world of his own and he is oblivious of
happenings in fact and in reality – thus, it is sufficient if the accused acts while in a state of
mind induced by mental disease, in which a false belief is held that cannot be shaken by
facts or reality.

Such a state of mind may be temporal or permanent.

Case in point is Moshie [1959] GLR 343. On the morning of December 23, 1958, for no
apparent reason, Issaka Moshie ran amok. He killed his landlord, chased other people in the
village and wounded a woman. Finally, he caught a little boy aged about six years and was
holding him with his left hand, bending over him and cutting him up with a cutlass wielded in
his right hand, when one of the villagers who had been attracted to the scene by the alarms
of women, shouted at him saying: “Is that a human you are cutting up like this?” Issaka
Moshie looked up at the man for a moment, then rushed on him with the cutlass.

The man ran into his room, took up his gun, and came out. Issaka Moshie was still coming
toward him, holding the cutlass in a threatening manner.

The man then pointed the gun at him hoping he would drop the cutlass. Moshie was not in
any way deterred, but pressed forward. The man then shot him in the knee. Moshie fell
down but got up and rushed toward the man. The man then fired a second shot, which
disabled Moshie.

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His story was that his landlord had come from Kumasi with a number of men to take him to
the Asantehene to be killed. The men dragged him out of his room and were forcing him into
a vehicle. At that grave moment, he snatched his cutlass and slashed his way through his
assailants in order to save his life.

The court held, per Ollennu:

The story consistently told by the appellant does not fit into the known facts…The
story is such that the only impression it gives is that at the moment when he did the
act he was living in a world entirely his own and quite different from that which all
other people in the village, who witnessed the scene, were living…the “facts” in the
story of the appellant were facts which existed only in his own mind, false beliefs
held by him which could not be shaken by the facts…In his summing-up to the
assessors, and in his judgment, the learned Judge completely overlooked a most
important fact which stares one in the face – the fact that the appellant was not
seeing the things that everyone else saw, and that he firmly believed (in spite of
what everyone else said) that what he was saying was the truth.

Under insane delusion there is no requirement that the mental delusion should lead to an
incapacity to control one’s conduct.

This does not mean that the person has an irresistible urge to act – but that the person has
no consciousness of acting.
A case in point is Abugiri Frafra alias Pini Frafra – on June 29, 1971, at Pokukrom in BA,
the appellant attacked the deceased with a cutlass for no apparent reason one afternoon
while the deceased sat talking with his wife. There was one fatal wound on the neck which
almost completely severed the head from the body. Death was instantaneous. In his
statement to the police, the appellant said he killed the deceased because the deceased
threatened to kill him for having an affair with his sister. However, in court he narrated a
completely different story of being in a fight with the deceased and during the scuffle he was
attempting to pick a cutlass from under the head of the deceased and the fatal wound
occurred.

The medical officer who testified indicated that the appellant suffered from paranoid
schizophrenia and that this form took the nature of persecutory delusions.

The trial judge directed the jury to consider whether the accused was in such high degree of
disorder that he was incapable of controlling his conduct.

In rejecting this direction, the CA held:

Our law on insanity does not require that the mental delusion should lead to
incapacity to control conduct. The direction given by the judge is in effect that the
defence of insane delusion should succeed only if it led to an uncontrollable impulse.
That is not right. In our law it is sufficient if the accused acted while in a state of
mind, induced by mental disease, in which a false belief is held that cannot be
shaken by facts.

Still on insane delusion, there is no requirement of ascertainment of the effect of the facts
forming the delusion – all that is required is that the accused, by reason of an insane
delusion, is not a fit subject for punishment.

A person is fit subject for punishment if he is morally blameable for the act – but here, there
is the absence of moral blameworthiness so it is pointless punishing him for it.

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Sec. 27(b) marks a change from the old McNaughten position which is to the effect whether
a person suffering from an insane delusion is punishable is dependent upon the nature of
the delusion – so that if the delusion is such that the accused would have been justified if
the imagined facts were true, there would be no liability – however, if the act made the
accused’s reaction unjustifiable even if the imagined facts were true, then there would be
liability

For some time, a line of Ghanaian courts unhappily followed this old McNaughten position
despite the clear wording of sec. 27(b).

The matter has been put to rest now in Akpawey where the court put things in their right
perspective that, there is no requirement that if the facts imagined by the accused were
true, then his action would be justified and that it would not be justified otherwise.

That is to say, the law merely looks at the delusion which is the product of a mind that is in
such a state as to be incapable of appreciating the difference between right or wrong.

In other words, it is the degree or quality of the incapability of the mind that caused the
delusion and not the subject or substance of the particular delusion which decides the issue
– see Akpawey (discuss).

This point was also stressed in Moshie that the important consideration is whether the
insane delusion is of such a nature as to render punishment pointless – the law is not
concerned with the form the delusion takes.

It has also been stressed that an important factor is that at the time of the incident the
accused was labouring under an insane delusion and not what it becomes subsequently –
see Manu [1965] GLR 149.

Automatism

Automatism is a form of mental disorder which negates mens rea but does not amount to
insanity.

Examples are somnambulism (sleepwalking); concussion; epileptic fits; hypoglycemia (a

defect in blood-sugar); dissociation (classified as hysterical neuroses, in the absence of
organic brain disease – the extreme form of dissociation is the “split personality” of the type
of Jekyll and Hyde).

Automatism, in legal terms, is any abnormal state of consciousness that is regarded as

incompatible with the existence of mens rea, while not amounting to insanity – it is
sometimes called impaired consciousness.

Automatism occurs when a person acts without his cognitive faculties.

It is a common law defence in aid of a person who has done an act but without being
conscious of the fact – i.e. the person is purely an automaton – that is – a state in which the
body behaves like a machine or robot and the mind becomes a non-controlling component
of the body – that is – a state of doing an act without the doer’s awareness.

So, in law, automatism is the state of a person who, though capable of action, is not
conscious of what he is doing – it is as if the person has had a blackout.

It is a defence because the mind does not go with what is being done.

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 - see Bratty v. A-G for Northern Ireland [1963] AC 401; and

- Burgess [1991] 2 WLR 1206

There is no provision in Act 29 concerning automatism, but a Ghanaian court will hold that a
temporary blackout during which a crime is committed would be considered as a defence of
automatism since the mind, at the time in question, was absent.

So in Dogo Dagarti – the appellant killed his wife and claimed that he did so during an
epileptic fit and that he had no recollection of what happened.

The trial judge held that neither automaton nor hysterical amnesia is a defence in Ghana. In
dismissing the appeal, the Supreme Court held:

It is true that the learned trial judge’s statement of the law that the defence of
automatism is not applicable to this country is too wide, for although automatism is
not stated in our law to be a defence to crime, yet there are cases where an act may
be done by a person under automatism in such a situation that in law the act cannot
be said to be the act of the person who did it.

THANK YOU AND LEARN VERY HARD

REMEMBER HARD WORK PAYS-—FRANCOIS

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