Criminal Law Notes PDF

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Criminal LAW Notes PDF
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NATURE AND SCOPE OF CRIMINAL LAW

The criminal law is instituted as a mechanism to protect
society and the individual against injuries that humans are
capable of, and have shown themselves to be capable of,
inflicting on other humans and institutions.
The Wolfendon Report in 1957 gave the following as the
functions of the criminal law, which seeks to:
 preserve public order and decency
 protect the citizen from what is offensive or injurious
 provide sufficient safeguards against exploitation and
corruption of others, particularly those who are
specially vulnerable because they are young, weak in
body or mind, inexperienced, or in a state of special
physical, official or economic dependence.
Criminal law is deemed to be an instrument of safety.
Criinal law is institutionalized because it is not only about
the infringements on private rights but also has an effect
on the public as a whole. It is aimed at forbidding conduct
that threatens to do substantial harm to society, even if
the victim is just an individual.
Why Should Criminal Conduct be Defined?
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The American Law Institute’s Model Penal outline

provided that criminal conduct must be defined in order:
• To safeguard conduct that is without fault from
condemnation as criminal
• To give fair warning of the nature of the conduct
declared to be an offence
• To differentiate on reasonable grounds between serious
and minor offenses
In short, a person must know what conduct is prohibited
as a crime. PARKER v GREEN Commented [sq1]: The appellant was granted a licence
empowering him to keep an inn and ale house. The licence
stipulated that the appellant should not knowingly permit or
suffer persons of notoriously bad character to assemble and
IS CRIMINAL LAW SEPARATE FROM MORALITY? meet together at his premises.
On one night, 14 prostitutes assembled at his premises and
Criminal law is based upon moral principle – however one he was charged for breaching the stipulation in the licence.
The issue was whether the prostitutes were persons of
notoriously bad character. HELD: the prostitutes were
looks at it. However, the problem is that none of the moral persons of notoriously bad character and since the
appellant knew them to be prostitutes and he allowed them
codes can claim any validity except by virtue of the religion in the house longer than was necessary for the purpose of
taking refreshment, and they met there for purposes
connected with their vocation as prostitutes, the appellant
or creed on which it is based. In PROPRIETARY ARTICLES was liable.
TRADE ASSOCIATION v AG FOR CANADA, Their Lordships

opined that
“Morality and criminality are far from co-
extensive; nor is the sphere of criminality
necessarily part of a more extensive field
covered by morality – unless the moral code
necessarily disapproves all acts prohibited by
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the State, in which case the argument moves

in a circle”
In terms of private morality, there are two schools of
thought as to whether it should be classified as law. Lord
Devlin, who belonged to one school posits that it is not
possible to set theoretical limits to the power of the State
to legislate against immorality (private ones of course). He
asserts that it is not possible to determine in advance
areas of immorality the law should not be made to enter.
The other school also posit that the immorality of an Commented [AK2]: the first appellant had an affair with
both his mother-in-law and sister-in-law, the other
action is not itself sufficient reason to criminalize it – appellants. The relationship had lasted seventeen years and
had produced two children with both women. The chiefs
therefore, as long as the act does not harm any other and elders of the village had given them word to desist from
such immoral acts but they refused. This enraged the
inhabitants and as a result, Glah and his wives were
person, perhaps except the actor himself, there is no arrested and charged with an offence of conduct breaching
the peace, contrary to section 207 of the Criminal and other
justification in criminalizing the act. They further contend Offences Act, 1963 (Act 29). The prosecution contended
that their acts were immoral and also against customary
law. They were convicted and on appeal, HELD: the court
that whilst it may legitimate to criminalize an act that held that the said immoral offence was not caught by any
section of the Criminal and other Offences Act, 1960 (Act
causes harm to another person, but where there is no 29), and as such wrong in law, to acquit them.
Commented [sq3]: This case arose out of opposition to
victim, it is pointless to criminalize the act and such the
Salvation Army in its early days, the local Salvationists had
conduct they term as victimless acts. GLAH v THE been convicted of unlawful assembly and ordered to find
sureties to keep the peace by a court of petty sessions. On
appeal to the Divisional Court it was held that since the
REPUBLIC.BEATTY v GILLBANKS association was for religious exercises an assembly and
procession in the streets was not in itself unlawful. The
disturbance of the peace was caused by the opponents of
COMMISSIONER OF POLICE v. BELLO the Salvationists (known as the Skeleton Army) who had on
several occasions violently interfered with their activities. It
was clear that had the Salvationists not met in public and
Facts: the appellant prepared some documents for the marched in prcession, there would have been no
disturbance of the peace. Moreover previous meetings had
complainant who was illiterate and charged an amount for caused disorder so that the Salvationists knew that similar
consequences were likely to ensue. But since the
disturbances were caused by people antagonistic to the
the services. He however issued a receipt for a lesser sum Salvationists and they themselves had committed no acts of
violence, they could not be convicted of unlawful assembly
and be bound over to keep the peace.
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and was subsequently convicted of stealing. Held the act

complained of did not constitute a crime within our
statute books. For it to be stealing the money must have
been dishonestly appropriated and to be larceny by
trickery the said property must have passed into the
possession of the appellant by trickery with the
complainant not willing to part with the property but only
possession. From the facts the money was paid as a result
of a valid contract thus not a crime and the only remedy
available is through a civil action
Comment; the fact that an act is wrong does not impute
as a crime unless the said act is define as such within the
statute books. Moreover, some immoral acts as in the
present case cheating are not crime as they do not affect
the public as a whole. The mere fact that an act is morally
wrong does not mean it is a crime.
WHAT IS A CRIME
Crime does not lend itself to easy definition. As such, an
effort is made only to describe it. In law, a crime is defined
by reference to the legal consequences of the act in
question. Therefore, a crime is an act that may be
followed by criminal proceedings.
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From this, a criminal proceeding is where the proceeding

imposes a penalty for an offence against the public, and
the penalty is meted out by judges according to the
magnitude of the offence. PARKER v GREEN, AMAND v
HOME SECRETARY, BROWN v ALLWEATHER GROUTING Commented [AK4]: Viscount Simon explained that if the
matter is one the direct outcome of which may be trial of
the subject and his possible punishment for an alleged
CO. LTD. In short an act is a crime only if it is prohibited by offence by a court, the matter is criminal
Commented [AK5]: the mere fact the word “offence” is
statute and there is a penalty attached to the doing of that used in a statute does not imply that the provision is to be
regarded as creating a criminal offence – sometimes the
act. failure to do something is prescribed as an offence although
the law maker imposes in respect of it, a pecuniary sanction
recoverable as a civil debt and not a criminal sanction
A crime is differentiated from a civil wrong. Both may be
an act or omission. What distinguish between the two is
whether society has designated such an action or
omission to be as such.
Civil wrongs are actions or omissions that are
unacceptable but are personal in their effect rather than
notionally affecting the whole society and for which
society might not consider it necessary to punish the
offender, so to speak. A crime is that act or omission that
the State would punish
Until the State legislates to CRIMINALIZE an act, it is not a
CRIME. Therefore, an immoral act or omission is not
necessarily a crime, until a law is passed making it a crime.
Glah v The Republic. For example, in Ghana, it is not a
crime to engage in an adulterous relationship, or to
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engage in fornication. From this, it can be deduced that

what amounts to a crime in one country may not be so in
another country.
Crimes may be classified in reference to their conceptual
immorality or inherent evil. In this respect, a crime may
either be
 malum in se; or
 malum prohubitum
A malum in se crime is one that is wrong or evil in itself.
This refers to conduct that is thought to be inherently
wrong by nature – independent of laws governing that
conduct. Eg. Murder.
A malum prohibitum crime is one that is wrong because it
is prohibited – that is, conduct that is considered criminal
only because it is prohibited by law – without such
prohibition it would not be considered a crime. COLLMAN
V. MILLS Commented [sq6]: According to Wills J, there is a
distinction between things criminal in themselves – that is
morally wrong and wicked, and things which are made
criminal and are prohibited under a penalty simply for the
public good
Case:
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Facts: is
Held: the byelaw was good and the defendant was guilty
and liable for the act of His servant that act having been
performed in the general scope of his employment
although contrary to the orders of the master.
Crimes are also classified according to their gravity and the

seriousness society attaches to them. This is seen in
Section 296 of Act 30. They are
i. Offences punishable by death.
ii. First degree felonies
iii. Second degree felonies
iv. Misdemeanours
v. Offences punishable by fine
Offences punishable by death – also known as capital
offences – are considered the most serious offences – e.g.
murder, treason and high treason
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The next in line in terms of gravity are first degree felonies

– in Ghana, first degree felonies normally attract a prison
term of up to life sentence – examples are rape, and
causing harm with the use of an offensive weapon
Second degree felonies are considered less in gravity than
first degree felonies – in Ghana, they attract a term of
imprisonment not exceeding 10 years – examples
abortion, causing harm, and threat of death. However,
offences involving dishonesty, though second degree
felonies, attract sentences of up to 25yrs - these include
stealing, robbery, defrauding by false pretences etc.
Misdemeanours are less in gravity than felonies – in
Ghana, misdemeanours normally attract a term of
imprisonment not exceeding 3 years – examples are
threat of harm, assault, and abduction. Then again, a fine
(sum of money) may be imposed in addition to a prison
term
However, where the only penalty for an offence is a fine,
then the offence is a very minor one – examples are wilful
neglect to fill up or transmit the certificate of a marriage
to the Registrar of marriages; indecent inscriptions like
advertisements in relation to venereal diseases or an
advertisement claiming aphrodisiac properties for a
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preparation without the authorization of the Minister for

Health etc.
PRINCIPLE OF LEGALITY
This principle is captured in the Latin maxim nullum
crimen, nulla poena sine lege praevia lege poenali –
shortened to nullum crimen, nulla poena sine lege - No
crime is committed and no punishment can be imposed
without the act having been prohibited and the
punishment having been prescribed by a law enacted
before the act was committed.
It is divided into two parts: Commented [sq7]: A person shall not be charged with or
held guilty of a criminal offence which is founded on an
act or omission that did not at the time it took place
 Nullum crimen sine praevia lege constitute an offence
 Nulla poena sine praevia lege

Commented [sq8]: The appellant signed as a guarantee
of a contract on behalf of the state in 1991. In the interim
an amendment of the criminal offences act made it an
offence to willfully cause financial loss to the state. In 1996
Nullum crimen sune praevia lege he signed a document releasing the said amt of money. He
was charged and convicted for causing financial loss against
the state. He contended that the act failed to define
This is to the effect that, an act or omission to act is only a willfully.
Held: there was no need for the act creating the crime to
define in tutu the words in the statue. This decision has
crime if before the act or omission was committed, there been criticized since the it is difficult to ascertain the nature
of the offence causing willful loss to the state as prohibited
was a law declaring the act or omission in question as a by section 170(A).
punishable offence. Article 19(5) of the 1992 Constitution Commented [sq9]: the appellant was found in the
possession of Indian Hemp, and was convicted by the Circuit
TSATSU TSIKATA v THE REPUBLIC HASSAN v THE REPUBLIC Court on a charge of possessing Indian Hemp ON 20TH
January, 1961, contrary to the Pharmacy and Drugs Act,
1961 (Act 64). However, Act 64 came into force on 13 June
Nulla poena sine praevia lege 1961. HELD: In allowing the appeal against the conviction of
the accused, the Supreme Court observed that on 20
January 1961 (the date captured on the charge sheet), there
was no offence like possession of Indian Hemp at the time
of the charge and as such, he was wrongfully convicted.
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This is to the effect that, an act or omission to act is only a

crime if a specific penalty has been previously prescribed
for that act or omission.
In Ghana, this principle is carried further on two legs:
• the offence must be written in a law and defined
• a penalty must be prescribed for the offence
ARTICLE 19(11) OF 1992 CONSTITUTION Commented [sq10]: 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
DEBRAH v THE REPUBLIC

The appellant was charged under s 53(A) of Act 370 with
a conduct with was disrespectful and insulting to the chief
of kajebi. The act which the prosecution alleged amount
to disrespect of the chief was collecting stone from the
entrance of the palace. At trial the counsel for the
defendant appellant made a submission of no case which
was declined by the trial judge. He appeals from the
decision overruling the submission of no case. Holding
and comment: for an act to be an offence the said act
must be defined by the section creating the offence and a
punishment proscribed or by the parent ACT. The act 370
provides for offences against a chief and not against
custom. As such the prosecution must fail as the basis of
their prosecution is for an act committed by the appellant
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contrary to custom. Moreover since the offence

complained of is against custom and by virtue of section 8
of act 29 a person cannot be punished for an offence
against customary law the appellant is not liable in the
criminal. This is In accordance with the principle that the
criminal offence must be written, defined and the
offender must have prior notice of it as enshrined in article
19(11) of the constitution 1992.
The rationale is that it is unfair to punish someone unless
he has a chance to know the law and to conform to it
THE RULE AGAINST DOUBLE JEOPARDY

This principle is to the effect that no man should be
punished twice for the same offence. Once a person has
been tried for an offence, he cannot be tried again for the
same offence, whether his trial ended in an acquittal
(autre fois acquit) or a conviction (autre fois convict).
The rationale is that the criminal law seeks to prosecute
offenders not to persecute them – so once a person has
been tried and sentenced, he cannot be punished again
for the same offence since to do so would amount to
undue oppression or persecution. SECTION 19(7) Commented [sq11]:
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The rule applies where, in his trial, the accused was in peril
in respect of the same set of facts – for instance, under a
charge of murder, the accused would be in peril of being
convicted for manslaughter – so if he is acquitted, a fresh
charge cannot be brought for manslaughter against him.
The accused must show that the first trial ended in a final
verdict of GUILTY or NOT GUILTY. A discontinuance, hang
jury, or the entry of a nolle prosequi is not a final verdict
On the other hand, where a person causes harm to
another, and the victim is still alive, the accused is not in
jeopardy of being charged for murder at his trial for
causing harm – if the victim eventually dies, the accused
may then be charged for murder. Section 115 of Act 30. Commented [sq12]: A person convicted or acquitted of
an act causing consequences which together with the act
constitute a different offence from that for which that
person was convicted or acquitted, may be afterwards be
tried for that last-mentioned offence, if the consequences
had not happened at the time when that person was
acquitted or convicted.
PUNISHMENT
Punishment is deemed to be the bedrock of criminal law.
there is no exact definition of punishment. However, in an
attempt to describe it, punishment en tails the infliction of
suffering by a deliberate act of the authority of the State
on an offender after he has been lawfully convicted for an
offence.
INDICES
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 Punishment is inflicted on a person found guilty of an

offence – This suggests the possibility that it may be
inflicted on a person who may not be factually
culpable.
 It involves the infliction of some pain or suffering or
deprivation – this may take the form of
imprisonment, fine, or the imposition of the
performance of some service – therefore, a pleasant
visitation is anything but punishment.
 It must be inflicted deliberately or intentionally by the
authority of the State – so if the pain, suffering, or
deprivation is the unintended consequence of the
action of the authority of the State, it is no
punishment
 Punishment must be meted out to a person by
another – so if a person inflicts pain or suffering or
some deprivation on himself, it does not qualify as
punishment – self-flagellation is no punishment – a
self-flagellant is a person who scourges himself as a
religious discipline or as a sexual stimulus.
 Punishment is related to the commission of a crime –
it cannot be imposed in a vacuum – it must be the
consequence of the commission of a crime –
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therefore punishment cannot be imposed before the

commission of a crime.
 Some writers suggest that a feature of punishment is
that it symbolizes an expression of disapproval for the
violation of a rule.
 from the foregoing, punishment is distinguished from
non-punitive penalties like flunking an exam,
disqualification, off-side, spot-kick, dismissal etc. – i.e.
punishment is a strict and narrow form of penalty
PURPOSE/AIMS OF PUNISHMENT
Punishment is intended to ensure compliance with the
criminal law. it is intended to achieve a desired object.
JUSTIFICATION OF PUNISHMENT
 it vindicates the law
 it upholds the majesty of the law
 it encourages us to obey the law.
THEORIES OF PUNISHMENT
There are two main theories; retributive and utilitarian
theories of punishment.
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RETRIBUTIVE THEORY
There are two themes of this theory; classic retributive
theory and proportionality theory.
1. CLASSIC RETRIBUTIVE THEORY: This theory is based on
seeking revenge. It is to the effect that the offender
should be paid back in their own coin – lex talionis – the
Commented [sq13]: The appellant had gone to a pub to
law of retaliation. This theory is modified into: have a drink and was sitting at a table quite different from
that at which the deceased, an international footballer, was
sitting with his friends. The deceased had a quarrel with one
The Proportionality Theory: This denotes that of his own friends and a fight ensued between them. The
punishment must fit the crime – i.e. the moral

appellant did what any reasonable man would do, by trying
to separate the two. The deceased picked upon the
appellant and beat him up and threw him onto a fence. In
culpability of the offender justifies the punishment. the face of the beatings, the appellant picked up a broken
bottle and warned the deceased to stop beating him but the
deceased still advanced and he stabbed him. He was
As such, punishment must not be imposed out of sentenced to 8 years of imprisonment because the trial
judge saw the crime as one of violence. HELD: The CA held
proportion to the offence committed. MELFA v THE that, each crime of violence should be considered on its
own merits when inflicting penalty on the perpetrator and
that if the trial judge had considered all the facts in relation
REPUBLIC APALOO v THE REPUBLIC KWADU v THE to the crime he would not have imposed such a long
sentence. From this, the court concluded that the deceased
REPUBLIC was a man of temper and as such, was the aggressor. In the
circumstances, the sentenced was reduced to 4 yrs
Commented [sq14]: the first appellant was arrested,
REASONS WHY RETRIBUTIVISTS PUNISH charged and convicted contrary to s19a(11) and s 32 of Act
242 with the possession of a currency printer , fake
currencies and the abetment of forgery. They were
The focus of retributivism is on different degrees of sentenced to a term of 15 years. They appeal against the
conviction and the sentence. HELD: The principles upon
punishment for different degrees of crime. A retributivist which the court would act on an appeal against sentence
were that it would not interfere with a sentence on the
punishes because the offender deserves it – this is in mere ground that if members of the court had been trying
the appellant they might have passed a somewhat different
sentence. The court would interfere only when it was of
contrast to utilitarian views that base punishment on the opinion that the sentence was manifestly excessive having
regard to the circumstances of the case, or that the
ideal of the greater good of preventing future offences sentence was wrong in principle. Grave offences (such as in
the instant case) usually called for deterrent sentences. But
the general principle was that a sentence of imprisonment,
and also in contrast to justifying punishment on the good even though intended specifically as a general deterrence,
must not be excessive in relation to the facts of the offence.
it does the criminal. Under the retributive theory the Having regard to all the circumstances, the sentences of the
first appellant to fifteen years imprisonment was
inordinately excessive and ought to be reduced to ten years
imprisonment.
Commented [sq15]:
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consequences of punishment are irrelevant to its

justification.
UTILITARIAN THEORIES
This theory is attributed to Jeremy Bentham. It is to the
effect that law must ensure to the greatest good for the
greatest number of people. It also posits that the moral
worth of an action is determined by the outcome – i.e. the
end justifies the means.
The utilitarian theories of punishment therefore are to the
effect that punishment must be a means to an end – it
should not be imposed for its sake – it must serve a
purpose – the purpose it serves being the end. Here, the
focus is on the beneficial consequences of punishment
and not really the suffering visited on the offender.
i. Deterrence: Punishment is imposed to
communicate to the community that such conduct
would not be tolerated thus reducing the incidence
of crime. Here, punishment reduces crime through
fear by discouraging others from engaging in similar
conduct in the future.
HARUNA v THE REPUBLIC
On appeal against a deterrent sentence of eight
years imposed on a young man aged 26 by the
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trial circuit court for the first offence of possessing

Indian hemp contrary to sections 47 (1) and 57 (1)
of the Pharmacy and Drugs Act, 1961 (Act 64),
HELD: that when young men have their first brush
with the law, it is essential in the interest of the
reformative element in criminal justice that they
be not sent to prison unless a prison sentence is a
mandatory legal requirement. If a prison sentence
is not a mandatory legal requirement, then as a Commented [sq16]: In collaboration with two other
general proposition, unless there are special police officers, the first appellant used his office as a police
detective to seize a large quantity of goods that had been
smuggled into the country. Rather than sending the goods
circumstances calling for a custodial sentence, the to the police station they were sent to the private house of
court must avoid incarcerating young offenders’.

one of the accomplices for the purpose of selling them for
the benefit of all who participated. The appellants and their
accomplices were found guilty of stealing contrary to
a. General Deterrence: This focusses on the effect section 124 of Act 29 and were each sentenced to seven
years’ imprisonment with hard labour. Counsel for the first
of punishment on society at large. They are appellant argued that the sentence was excessive. HELD:
since the offence was of a very grave nature, the sentence
must not only have been punitive but it must also have
usually severe and the offender is usually seen as been a deterrent or exemplary in order to mark the
disapproval of society of such conduct by police officers.
a scape goat. Here, the special circumstances of And that when a court decides to impose a deterrent
sentence the value of the subject-matter of the charge and
the good record of the accused become irrelevant. In
the offender are often taken into consideration determining a sentence it is proper for a court to consider,
on the one hand, the social or official position of the
thereby leading to the imposition of harsher offender, and on the other, that the offence may be
aggravated by reason of such position. The trial judge was
sentences than would otherwise have been justified in taking the official position of the first appellant
into consideration in passing an exemplary sentence.
imposed – for instance, if a person in authority Commented [sq17]: the appellant was charged and
convicted for fifteen years and hard labour on the count of
robbery. He was identified by the complainant and another
commits a crime or someone who should have witness, however he contended that the mode of
identification was wrong as such the verdict was
known better, like a law enforcement agent, misconceived or alternatively appealing the sentence. Held:
dismissing the appeal
commits a crime, a harsh sentence is often The trial court in giving the deterrent sentence took a look
the prevalence of robbery in the state as such the
punishment was not only punitive but aimed to serve as a
imposed. KWASHIE v THE REPUBLIC, ADU deterrent and make an example of him.
Fulfilling the deterring and exemplary element of the
BOAHENE v THE REPUBLIC criminal law. In giving the judgment the learned trial judge
took cognizance of the prevalence of robbery in the country
and the need to show societies disapproval of such an act.
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b. Specific Deterrence: This seeks to discourage the

individual offender from repeating the
commission of a crime – that is, it seeks to
prevent recidivism.
ii. Prevention: The focus here is removing the
individual offender from society to render him
physically incapable of committing further crimes.
iii. Reform and Rehabilitation: This is aimed at
assisting the offender to turn a new leaf by
adopting a lifestyle different from the criminal one
through moral education.
iv. Atonement and Reparation: Here, the offender is
made to compensate the victim for the damage or
injury resulting from his criminal conduct.
CRITIQUE OF THE THEORIES
1. The retributive theory is criticized for focusing too
much on the punishment – it is said that punishment
for its sake does no good – that, punishment requires
some good to justify it.
2. The utilitarians further argue that there is no such
thing as just deserts because it is only God who knows
what people truly deserve and that by just deserts,
we are just playing God.
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3. Further, the utilitarians argue that we are all guilty –

so that if we each got what we truly deserved, we
would all be punished – based on scripture – no one
is holy, no, not one – judge not, lest thou shall be judge
– he that is without sin among you, let him cast a
stone at her1
4. The retributivists would also remark, in practice, all
punishment is essentially retributive because it is
imposed in response to the commission of a crime
and not because it could prevent crime.
5. It is also said that punishment itself seldom reforms
the criminal and it never deters others.
6. The utilitarians would ask the retributivists – are you
not being barbaric by inflicting suffereing on an
offender, regardless of the consequence? Aren’t you
merely punishing for the sake of punishment?
7. The retributivists would respond – is it wrong to
punish an offender for the sake of punishment – is
that not a desirable consequence? The retributivists
would in turn ask the utilitarians – if your aim is to
achieve desirable consequences by inflicting suffering
on the offender, and not because the offender has
committed a crime, then why don’t you punish an
1
John 8:7
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innocent man, by pretending that he is guilty. To this,

the utilitarians would respond, that their focus is on
punishment of the morally guilty
From this, it appears that none of the theories is foolproof
and as such, it has been suggested that there should be a
third justification which will be a dual justification, called
Teleological justification (rightness of an act is determined
by its end) and Entitling justification (the problem of
avoiding injustice to individuals in the pursuit of goals).
Requirements of Criminal Liability
In law, liability (in general) may be
 strict
 absolute
 vicarious, or
 based on fault
Where liability is based on fault, a person’s actions or
omissions by themselves would not render him culpable
unless he is morally blameworthy for that act or omission
Liability is said to be strict as long as it can be shown that
a person’s act or omission has resulted in a particular
undesired result. In this case, it is immaterial whether he
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was at fault or whether he is morally blameworthy –

however, he is afforded defences, if any defence is
available to him
Liability is absolute where the defendant’s moral
blameworthiness is immaterial and he is afforded no
defence whatsoever
Vicarious liability involves holding a person responsible
for the acts or omissions of another
In criminal law, the general rule is that there cannot be
liability without fault or blameworthiness. Before a person
is convicted of a crime, the law requires the ascertainment
of whether he was at fault or whether he is morally
blameworthy.
From this, there are two conditions that must be fulfilled
in criminal law before a person’s guilt can be established,
namely:
i. a physical act (actus reus): that the person has
committed a prohibited act
ii. a requisite mental element (mens rea): that the
commission of the prohibited act was accompanied
by a prohibited mental state or state of mind.
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The two elements must coincide in respect of the same

event for the act to amount to a crime – if either element
is absent, then the general rule is that no crime has been
committed. This finds expression in the Latin maxim actus
non facit reum nisi mens sit rea – an act does not make
a man a criminal unless the mind be guilty.
ACTUS REUS
The actus reus may be –
 an act of commission or omission simpliciter
 or an act considered together with the surrounding
circumstances – for instance, with respect to the
offence of stealing, it is not merely the act of taking
an item belonging to another that is prohibited, but a
taking under some circumstance, i.e. without the
Commented [AK18]: AUTHORITY: Smith and Hogans….
consent of the owner
Sometimes the actus reus involves a mental component -
for instance, in the case of the offence of possession of
narcotic substances, mere physical or manual possession
does not render the accused culpable – the actus reus
includes a mental requirement that the accused had
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knowlegde of the nature and quality of what he

possessed.
Sometimes the actus reus does not require the doing of
an overt act – a negative course of conduct sometimes
constitutes the actus reus – in this situation the not doing
becomes the actus reus – this is what is termed, criminal
omissions.
Sometimes, the actus reus is neither constituted by an act
or omission, but by a status – the state of being in
something or being something – e.gs are the old common
law offence of being a vagrant, and the offence of
possession.
No matter the form it takes, the actus reus must be
committed voluntarily for liability to arise – that is the
person’s muscular contractions and movements must be
accompanied by his cognitive faculties – that is, the
accused must engage in the act on his free will or choice,
and not out of external pressure or force .
The insistence on the voluntariness of the commission of
the actus reus implies that involuntary acts cannot form
the basis of criminal liability.
Thus, for instance, acts done in situations of the absence
of volition (will or desire) will not do – these situations
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include situations of duress or coercion or where a person

is not in control of his mental faculties – instances include:
- where a person is employed as an involuntary
agent in the commission of a crime
- acts done in situations of unconsciousness like
somnambulism or epileptic fit R v Charlson Commented [sq19]: The appellant invited his son to a
window sill to watch a rat and he struck his son’s head with
a hammer resulting in grievous injuries. It came up that the
appellant was a rather doting (loving) father and there was
Involuntary acts are sometimes referred to as automatism no conflict between him and the son. Medical evidence
– that is, an act which is done by the muscles without any

suggested that the appellant may have been in a seizure of
epilepsy at the time, and it was also shown that there was a
history of such seizures in the appellant’s family. HELD: in
control by the mind such as a spasm, a reflex action or a the case of certain diseases, a person suffering from the
disease may be deprived of the control of his actions. A man
in the throes of an epileptic fit does not know what he is
convulsion, or an act done whilst suffering from doing.
concussion or whilst sleep-walking. However, an act is not

to be regarded as involuntary simply because the doer
does not remember it – after-the-fact amnesia is no
defence if the doer was conscious of what he was doing at
the time in question. Then again, an act is not involuntary
simply because it is unintentional or that its eventual
consequences were unforeseen. A man charged with
driving dangerously cannot be heard saying that he didn’t
mean to drive dangerously. R v Bratty. Commented [sq20]:
Still on the point of voluntariness, sometimes the accused

may plead that they are not responsible for their actions
not because they lost control of their cognitive faculties as
a result of natural causes but as a result of external
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factors, such as a failure to take a prescribed drug (non-

insane automatism)
- here, although their actions are involuntary so
to speak, yet they brought it upon themselves
through their own irresponsibility – thus, the
general attitude of the law is to view such so-
called involuntary conduct with skepticism. R v Commented [AK21]: Here the courts are very reluctant
to hold for automatism.
Hennessy Commented [sq22]: the appellant was found by the

police with a stolen Ford Granada. As he was about to spark
off a police officer took the key from the ignition lock.
A duty to act may arise in several instances When he was being taken to the police station, he engaged
in a hearty conversation with the police.
Indeed, he went as far as to say that had the ignition key not
 a duty to act may be imposed on a person by law been removed, he would have given the police a real run for
their money. All this while he appeared cheerful and
intelligent. However, he later appeared to be confused and
 a duty may also arise where one enters into a contract dazed and he claimed that he was diabetic and had
forgotten to take his insulin so he lost control of his senses
to perform a task and he did not know that he was stealing a car. Held: The
court held that the appellant cannot be availed the defence
 other times, a duty is deliberately assumed by a

of automatism because he had knowledge of his actions.
person in circumstances recognized by the law as

giving rise to a duty
 for instance, if one decides to care for a helpless
person, that decision to assist stands as a
message to the whole world that one has taken
charge of the situation – therefore, one may not
abandon the helpless person because the law
would enforce the decision to assist
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However, an omission to act would not inculpate a person

where that failure to act was not by a conscious exercise
of will or by a deliberate decision Kilbride v. Lake Commented [sq23]: the accused drove and parked a car
on a street. In his absence, someone removed a warrant of
fitness (or roadworthiness) he was required to display on
the windshield
He was charged with permitting a car to be on the road
while failing to display a warrant
It was held that a person cannot be made criminally
CAUSATION responsible for an omission unless it was in circumstances
where there was another cause open to him. If this
condition is absent, any omission must be involuntary or
unconscious – hence no liability arises
For a person to be found culpable for a crime, there must

be established a causal connection between the accused
and the act or omission that constitutes the actus reus. In
the absence of this link, a person cannot be held liable for
the particular offence.
Causation, therefore, is the result of a person’s action or
inaction – the law looks to see whether we can link the
event with one’s act. Causation is governed by sections 13,
64 and 81 of Act 29.
STATUTES SUPPORTING CASES
SECTION 13 OF ACT 29- CAUSING AN EVENT
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(1) If a person 1. R v MICHAEL: In this case,

intentionally or the accused, a single mother
negligently makes an seeking to kill her baby gave a
involuntary agent to bottle of laudanum to
cause an event the another woman named
person is deemed to Stevens to be administered to
the child a teaspoonful every
have caused the event
night. Stevens left the bottle
himself
on top of a shelf and another
(2) Involuntary agent child of five years, who came
means an animal, thing into contact with the bottle,
or person who cannot be administered half of its
liable for a crime by contents to the baby. As a
reason of infancy, result, the baby died.
insanity or something HELD: the Court held the
else under this provision accused liable for the murder
of the child as the five year
old was found to be an
involuntary agent and his act
was akin to administration by
the accused herself.
Commented [sq24]: The first accused sought to kill his
QUEEN v SAUNDERS wife so as to marry another. He devised a plan with the

second defendant to kill his wife. He gave her a poisoned
apple. She took a bite and gave the rest of the apple to their
daughter who died thereafter. HELD: it was held that the
wife was merely an involuntary agent used to achieve the
purpose the accused persons set out to accomplish. She
acted innocently by giving the apple to the child thus she
was not liable for murder. This case also applies to transfer
intent. He intended to kill someone and ended up killing
another. The law transfers the mens rea to the actus rea.
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(3) If an event was Sene v Republic- the

caused negligently or appellants were brothers. The
intentionally by a group first was engaged in an
of persons either jointly unlawful fight with the
or independently they deceased. The second
would be deemed to appellant threw a stone at the
have caused the event. deceased and after the first
However any defense started raining blows on him.
available on any of the Appeal was allowed because
persons would have the trial erred by placing
effect on his case emphasis on who started the
regardless of the fact fight and it was held that the
that the other persons defense of provocation
might not have that should have been brought up.
defense Conviction of manslaughter
IN OTHER WORDS; substituted for murder.
Where an event is caused OR

by the acts of several REPUBLIC v YEBOAH: The
persons acting jointly or accused was seen leading a
independently, each of group of men chasing after an
the persons who unknown man, shouting,
intentionally or ‘thief’ ‘thief’. The next day,
negligently contributed the unknown man was seen
severely battered lying
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to cause the event has unconscious on the ground.

caused the event. Each of He died later at a hospital and
the parties can however the doctor predicted the
prove defence on their cause of death as brain
part concussion as a result from an
attack with a blunt or sharp
object. The accused was
arrested and charged with his
death. On a submission of no
case, HELD: The Court held
that there were no evidence
to show which of the acts of
the perpetrators caused the
deceased’s death and as such
it was upheld
(4) A person shall not be R v Jordan-The defendant
convicted for negligently stabbed the victim. The victim
or intentionally causing was taken to hospital where
an event if the event he was given anti-biotics after
would not have occurred showing an allergic reaction
but for the existence of to them. He was also given
some circumstance excessive amounts of
which was not taken into intravenous liquids. He died
and had no reason to be of pneumonia 8 days after
taken into consideration admission to hospital. At the
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IN OTHER WORDS; time of death his wounds

A person shall not be were starting to heal. It was
deemed to have cause an held that he victim died of the
event irrespective of his medical treatment and not
act, but for the intervention the stab wound. The
of any other event or by any defendant was not liable for
person or the set of facts or his death.
any event that the accused OR
did not take into R v CATO: The accused
consideration and did not together with the deceased,
have a reason to, that event after a night-out,
will not have happened. administered bouts of heroin
to themselves by one on
another throughout the
night. They fell very ill the
next morning and the
deceased died, with the
accused surviving. He was
charged with manslaughter.
HELD: The court held that, the
acts of the accused as well as
the deceased were reckless
and he should have taken into
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consideration that it could

cause harm. The court also
held that de minimis
contribution to causing an
event will not suffice for the
purposes of establishing a
criminal liability for that event
R v SMITH Commented [sq25]: The appellant a soldier stabbed
another officer in a barrack room fight. When the deceased
was been rushed to the hospital he was dropped twice and
at the hospital the wrong treatment was administered. He
(5) However this does R v Pittwood-The defendant was convicted for murder. He appeals.
Held: the direction given by the trial judge was accurate.
not apply for someone was employed by a railway The death flowed from the wound albeit the fact that the
treatment was wrong. It seems to the court that if at the
who caused an event by company to man the gate at a time of death the original wound is still an operating cause
and substantial cause then the death can properly be said to
have resulted from the wound albeit that some other
omitting to perform a level crossing. The defendant factors caused the death. From the facts of the case, parker
cj held the death of the private was inevitable as the wound
duty lifted the gate to allow a cart substantial would have caused the death of the deceased.
to pass and then went off to

lunch failing to put it back
down. A train later collided
with a horse and cart killing
the train driver. The
defendant was liable for the
death of the train driver as it
was his contractual duty to
close the gate.
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(6) A person who causes

a voluntary agent to
cause an event within the
jurisdiction while he is
outside the jurisdiction is
deemed to have caused
the vent within the
jurisdiction
(7) Subject to this act, it R v Yeboah- the accused was
is a question of fact seen leading a crowd
whether an event was shouting ‘thief’. The next
reasonably and fairly morning a man was found
caused by a person’s act unconscious in the direction
of the chase. The man died
and the accused was
arrested. It was held that
there was no evidence
connecting the death to the
accused
(8) A person would not R v White- The defendant put
be relieved from liability some poison in his mother's
from an attempt to cause milk with the intention of
an event negligently even killing her. The mother took a
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if the act did not cause an few sips and went to sleep
event and never woke up. Medical
reports revealed that she died
from a heart attack and not
the poison. The defendant
was not liable for her murder
as his act of poisoning the
milk was not the cause of
death. He was liable for
attempt.
The rule here is that, A THABO MELI v THE QUEEN Commented [sq26]: Thabo Meli, 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
would still be liable and struck him over the head. They, believing him to be dead,
took his body and rolled it over a cliff, dressing the scene to
the act of concealment make it look like an accident. In fact, the man was not then
dead, it being established from medical evidence that the
will not be held to have final cause of his death was exposure when he was left
unconscious at the foot of the cliff. The appellants
broken the chain of 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
causation cause of death, was not accompanied by mens rea, and
that, therefore, they were not guilty of murder. HELD: There
SECTION 64- CAUSING DEATH 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,
(a) A person would be Twum v Republic- The because they were under a misapprehension at one stage
and thought that their guilty purpose had been achieved
liable for the death of a deceased, a healthy and able- before, in fact, it was achieved, therefore they are to escape
liability
person if the harm he bodied police constable, was

inflicted caused the hit in the face by the
person to die. It does not appellant. The deceased fell
matter if the person down and bled from the nose
would have died sooner and mouth. He was admitted
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in an unconscious state to a
hospital where he died the
next day. It was found out the
man had oedema which
would have killed him later.
The accused was liable.
(b) It does not matter if R v Hayward- The defendant
the person would not chased his wife out of the
have died for some house shouting threats at her.
factors such as age, She collapsed and died. He
infancy, disease, did not physically touch her.
intoxication or the state She was suffering from a rare
of mind of the person at thyroid condition which could
time harm was caused lead to death where physical
exertion was accompanied by
fright and panic. Both the
defendant and his wife were
unaware she had this
condition.The defendant was
liable for constructive
manslaughter as his unlawful
act (assault) caused death.
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(c) It does not matter if R v Blaue- The appellant

the person would not stabbed a little girl he had
have died if he had wanted to have sexual
sought medical or intercourse with. She was
surgical treatment or the rushed to the hospital. At the
treatment was done hospital she refused to
negligently or improperly receive a blood transfusion
unless the person had no which was essential to keep
disregard for his own her alive since she was a
health witness. She died a few hours
later and the appellant was
convicted of murder. In
dismissing the appeal Lawson
l.j. held that the maxim take
your victim as you find them
included the whole man not
just the physical man. Thus
the question was the cause of
death the answer the stab Commented [sq27]: the accused assaulted another
cutting his fingers with an iron instrument. The deceased
wound. upon reporting at the hospital refused to have his fingers
amputated but altered for an alternative treatment with
lead to the fester of the wound and eventually his death.
R v HOLLAND Counsel for the accused contended that the death of the
deceased resulted from his own recklessness not the wound
inflicted on him by the accused. The court held that the
accused was guilty. The question the court held is not
(d) A person would still R v Smith- accused stabbed whether the deceased failed to resort to proper treatment
but rather whether the wound inflicted by the prisoner was
be liable for the death of man. On the way to the the cause of death. ( I think the import of this take your
victim as you find him and the gross negligence on the part
of the victim and a doctor is to ensure that those who Cause
unjustifiable harm to others are punished by the law).
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a person even if death infirmary the man was

resulted from the dropped several times. At the
medical or surgical infirmary he was given
treatment of the harm incorrect treatment and he
unless such treatment died. Accused was held liable
was overly negligent or at the wound was still the
death could not have operating cause at the time of
been foreseen as a likely death.
to result from the R v MALCHEREK, R v JORDAN Commented [sq28]: A husband stabbed his wife nine
times with a kitchen knife. She was rushed to the hospital
treatment and put on a life support system. After a while, doctors
determined that she was brain dead and so removed her
from the machine. The accused contended that the
discontinuance of the treatment had broken the chain of
causation. HELD: by Lane CJ that, where a medical
R v BASARE practitioner adopting methods which are generally accepted
However if the treatment comes, bona fide to the conclusion that the patient is
practically dead and that such vital functions as exist for
administered to the The accused was caught example circulation are being maintained solely by
mechanical means , and therefore discontinues treatment
deceased is inadequate it stealing cocoa by the that does not prevent the person who inflicts the injury
from being responsible for the victim’s death.
does not exonerate the deceased from his house. Commented [sq29]: The defendant stabbed the victim.
The victim was taken to hospital where he was given anti-
accused from the harm When the deceased followed biotics after showing an allergic reaction to them. He was
also given excessive amounts of intravenous liquids. He died
caused which has led to the him to recover the stolen of pneumonia 8 days after admission to hospital. At the
time of death his wounds were starting to heal. It was held
death of the deceased. cocoa bag the accused shot that he victim died of the medical treatment and not the
stab wound. The defendant was not liable for his death.
him. He was admitted at the

hospital but died a weeks
later due to injury to his lower
abdomen. Counsel for the
accused contended that the
accused should be acquitted
as the cause of death should
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be inadequate medical
treatment but not the gun
shot by the accused.
The court of appeal with
Granville Sharp delivering the
judgment rejected this
contention. He held that
death resulting from
treatment of a wound
unlawfully inflicted does not
however inadequate
exonerate the person who
inflicted the wound from the
consequences of his act,
unless the treatment itself
amounts to murder or
manslaughter.
(e) A person would not R v Dyson- appellant brutally

be liable for the death of beat three month old baby
a person the time fracturing the skull. Later he
between the death and again beat the baby and it
the harm inflicted is over died later of Death was said to
a year and a day. If it is have caused by fracture to
skull sixteen months before.
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within, the person is Appellant was not liable as

liable death took place more than a
year and a day after
SECTION 81-EXCEPTIONS TO CAUSING AN EVENT
(a) A person would not R v Senior- appellant refused
be liable for harm caused to seek medical assistance for
to a person by refusing to child and as a result the child
supply the person with died. The appellant belong
the necessaries of life ‘the peculiar people’ who
and health unless it is believed it was sinful to seek
shown that by reason of the help of a physician. The
age, physical or mental appellant was convicted of
state of mind, control of manslaughter.
the person by the
accused or in the
circumstances the
person could not have
reasonably helped
himself
(a) A person would not R v Nwaoke- appellant
be culpable for disease or pointed a ‘juju’ at his wife and
disorder caused to a threatened her that it would
person by grief, terror or kill her if she did not bring the
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other emotion caused by ‘head money’ he had paid to

the person regardless of marry her. The deceased
whether the person had hanged herself later because
intent to cause harm or she was terrified. The
otherwise. appellant was not liable
although he was the one to
induce the terror that led the
woman to kill herself. Her
death was not the act of the
appellant
(b) A person would be
liable for harm caused to
another by way of an
execution of a sentence
of a court as a result of a
prosecution or evidence
given by the person
(c) A person is liable for
causing harm to another
because the other
contributed to the harm
being caused by trespass,
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negligence, act or
omission
SECTION 82- SPECIAL PROVISION AS TO MEDICAL OR
SURGICAL TREATMENT
A person who in good faith,
for the purposes of medical or
surgical treatment,
intentionally causes harm to
another person which, in the
exercise of reasonable skill
and care according to the
circumstances of the case, is
or ought to have known to be
plainly improper, is liable to
punishment as if the harm
had been caused negligently,
within the meaning of this
Act, and not otherwise.
SECTION 83- CAUSING HARM BY HINDIRING EXCAPE FROM
WRECK
A person who prevents
another from escaping and
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harm results would be liable

for the harm
MENS REA
In Act 29 mens rea is captured variously by expressions
such as “intentionally” “with intent” “knowingly”
“negligently” “unlawfully” “without lawful excuse”
“dishonestly” “without reasonable excuse”.
INTENT
Intent is the commonest form of mens rea.
The concept of intent is categorized into two tiers –
i. basic intent
ii. specific intent
Basic intent is the first level – the primary intent with
which an act is done – that is doing an act intentionally –
for e.g. intentionally throwing a stone at another or
intentionally shooting at another.
Specific intent is the second level – the secondary intent
which is formed while doing an act – i.e. the desired result
– that is – you intentionally do an act (i.e. basic intent) with
a further intention that it should achieve a particular
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result – that further intention is referred to as specific

intent – e.g. you intentionally harm a person in order to
cause his death – the intentional infliction of harm is the
basic intent – while the intention to kill the person is the
specific intent. Where an offence is defined so as to
require both a basic and a specific intent, both levels of
intent must be proved. R v STEANE, R v TOLSON Commented [sq30]: the appellant, a British subject,
entered the service of the German broadcasting system and
broadcasted through that service. He was charged with
engaging in acts likely to assist the enemy. HELD:
The concept of intent is an attempt by the law to inquire Commented [sq31]: the prisoner was convicted of
into the state of mind of a person at the time he bigamy. She married another upon information of the death
of her husband. She married the second husband in good
faith that she was a widow. Shortly after her wedding the
committed a prohibited act. This is not easy act. Intent is Husband returned from the America. She appeals.
Held allowing the appeal. There can be no crime without a
governed by sec 11 of Act 29. tainted mind. Since the appellant married the husband
under bona fide believe of the death of the first husband
the charge of bigamy would not lie since the requisite state
of mind was non-existing. In order for an act to constitute a
crime there must be a mens rea or guilty intention. Non est
reus, nisi nens sit rea.or actus non facit reum nisi mens sit
1. SECTION 11(1): Where a person does an act to cause rea.
an event or contribute to cause it, he intends to cause

that event, even if he believed that event will not
occur.
SENE v THE REPUBLIC: The first appellant engaged
the deceased in a fight in the course of the fight, the
second appellant threw a stone which hit the
deceased to which he fell. Whilst on the ground, the
first appellant hit him, resulting in him dying. They
were charged and convicted of murder. Held: The
court held that the element of intent is established by
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considering whether the accused had the intention of

killing the deceased. Such intent was to be discerned
from the instrument or weapon used in the killing or
the manner of harm that was inflicted, and not merely
who started the fight. A conviction of manslaughter
was thereby substituted for murder.
2. SECTION 11(2): Where a person does an act intending
to cause an event, but causes a different event is
deemed to have intended to cause the second event.
R v QUAYE (JACK TOLLER), R v IDIONG Commented [sq32]: The accused, in his quest to expedite
his aim of stealing administered to the deceased chloroform
so that he sleeps. The dose of chloroform however resulted
3. SECTION 11(3): Where a person did not take in his death. HELD: The court held that in such a case, the
degree of criminality depends on the knowledge of the and
reasonable care in his act, such that an event consciousness on the part of the accused that death is likely
to result from what he does, that is whether or not he
wouldn’t have occurred if he had, is deemed to have willfully incurred the risk of causing the death of another
person.
intended to cause that event unless he did not intend Commented [sq33]: The first appellant with the intention
of committing abortion on a pregnant woman, instructed
to cause that event. the second appellant to administer a herbal preparation to
the woman. The second appellant, believing he was giving
SERECHI v THE STATE: The appellant were employees the medicine to a woman undergoing natural miscarriage
administered the medicine. The woman died, and they were
convicted of murder.
of the Ashanti Goldfields LTD. In Obuasi. They were Held: setting aside the verdict of murder against the first
appellant and giving a verdict of manslaughter.
conveying firewood trucks on a locomotive train from The question asked by the court was whether the act was
likely to have a endanger human life in the sense that a
Obuasi to a village. Some non-employees jumped reasonable man would expect it probably would do so?
Upon evidence it was unlikely that a reasonable would
believe that the administered concoction would not lead to
unto the trucks as the train started moving, clearly to the death of the woman hence, the verdict of manslaughter
and not murder. If it was held otherwise then the court
catch a free ride. The appellant allegedly approached would have held that idiong intended to kill the woman.
the deceased, beat him up and consequently, pushed

him out of the trucks as it gathered speed. He was ran
over by the train and died as a result. The appellant
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was convicted of murder. HELD: The court held that

there was sufficient evidence of an intention to cause
death and the infliction of the unlawful harm. If the
appellant had taken reasonable caution, the death
would not have been caused.
REPUBLIV v ADEKURA, Commented [sq34]: The appellant, while manning a
barrier as a member of the people’s militia shot a moving
vehicle at about 5:30 am. When the driver refused to obey
an order to stop. One of the bullets killed a passenger on
the vehicle. He appealed against a conviction of murder.
AKORFUL v THE STATE: the appellant was charged Held: to shoot a round of bullets at a moving car at a time
when visibility is poor and limited, is a dangerous act. The
act of the accused exposed the occupants of the car to
and convicted for the murder of his brother in law. He serious risk of death, although his aim was only to
immobilize the car. The provision in section 11(3) which
heard his dog barking. Fearing it would be a thief ensures to exculpate an accused is predicated upon the fact
that he had used reasonable caution and observation. There
linkering about and with the intention of scaring him being no such evidence of reasonableness in act of the
appellant, the appeal was dismissed. Section places a
subjective test on the accused.
off took his gun and shot. In effect he had shot his
brother in law. The main issue in this case is whether
the killing is intentional. Held: The law presumes that
an accused person intended to cause death if it would
have appeared to any reasonable person that, if he
did not use reasonable caution and observation that
there would be great risk of his act causing or
contributing to cause death. The presumption of
intention is rebuttable only if the accused raises a
reasonable doubt about his intention. From the facts
the appellant claim he shot to scare off the thief and
nothing else, the trial judge should have taken
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cognizance of that and directed the jury that the

presumption was not absolute but rebuttable.
4. SECTION 11(4): Where a person causes an event
against a group of people, he intends to cause harm
to any one of them. He is liable even though the
victim may not be in his contemplation. R v GYAMFI Commented [sq35]: The appellant, an organizer of an
opposition political party, was leading his supporters
towards a crowd of the other party. His supporters started
throwing stones in the supporters of that party. The
5. SECTION 11(5): Where the accused intends to cause appellant threw a stone, akin to a human fist, into the
crowd, hitting the deceased, killing him. He was convicted of
harm to a person but the act takes effect on another murder. He appealed.
HELD: The court held that, there was sufficient intention to
person, he is deemed to have intended to cause that cause harm by the act of throwing a large stone into a
crowd. His conviction was reduced to manslaughter
nevertheless.
event on the other person, although he may not have
been in his contemplation. AMETEWEE v THE STATE: Commented [sq36]: the appellant, a police officer
stationed 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 aim was to kill
6. SECTION 11(6): A defence is admissible to exculpate the President and that he did not at anytime form any
intention to kill the deceased. Therefore, it would be
the accused in Section 11(5). illogical to hold that he intended to kill the deceased. He
was convicted of murder. HELD: The court held that, the
appellant was labouring under a misapprehension that
MOTIVE because his aim was to kill the President, if his bullet hit and
killed the deceased by mistake he cannot escape liability by
pleading that he did not intend to kill the deceased.
The Criminal and Other Offences Act, 1960 (ACT 29) do not
provide any express provisions on motive. It is however
recognized in our courts. Motive is not a defence in our
courts
1. BLAKE v. DPP: A vicar wrote a biblical quotation on a
concrete pillar to protest against the Gulf War. He
claimed to have the consent of God. Held: He was
found to be guilty of criminal damage. The court held
that (1) Divine command is not a lawful excuse under
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the common law. (2) The act was not capable of

protecting property in the Gulf States, as it was too
remote. (3) Defence of necessity or duress
unsuccessful, as divine command did not, objectively
speaking, create an immediate danger or fear of
danger.
2. HYAM v DPP: The appellant had been having a
relationship with a Mr Jones. Mr. Jones then took up
with another woman Mrs Booth and they were soon
to be married. On hearing this news, she went to Mrs
Booth’s house and poured petrol through the letter
box and ignited it with matches and newspaper. She
then drove home and did not alert anyone of the
incident. Mrs Booth and her young son managed to
escape the fire but her two daughters were killed. She
contended that she did that to make Mrs Booth to
leave the town. HELD: The
court held that, the accused knew that it was
probable that her acts would result in grievous bodily
harm even though she did not desire to that result
about.
3. AWEDAM v THE STATE: the appellant run over and
killed the deceased with his car. He was convicted of
murder. He claimed it was an accident. The
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prosecution however contended that he had a motive

to kill the deceased since he was a witness in favor of
the prosecution against his friend who had been
convicted.
Held: that the motive was not relevant to find
someone liable for a murder but rather that he
intended to kill the person.
NEGLIGENCE
It is in Twofold: inadvertence causing injury and a
professional acting without the requisite skill required at Commented [sq37]: The appellant, a hunter, saw a bush
shaking in an area regularly used by people. He shot in that
direction without first ascertaining the nature of the object.
the particular moment.Not taking enough care when It turned out that the object was a human being. Held: The
appellant was held to be negligent as he should have first
doing the act or not knowing how to do it properly is the check to see the object in the shaking bush.
prohibited state of mind i.e. the mens rea. When death Commented [sq38]: the appellant whilst on a hunting
expedition shot and killed, another in the mistake belief that
he was an animal. Before he shot he had taken some
results from negligence the conviction is manslaughter precautions to determine the nature of the object. Having
been sure it was an animal he shot and it turned out to be
when the act amounts to a reckless disregard for life. another hunter.
Held: in quashing the conviction of manslaughter akuffo
addo jsc held that in an action of manslaughter by a
SECTION 12: A person causes an event negligently, negligent act the nature of the act must be one in the
accused had “reckless disregard for human life”. Since the
where, without intending to cause the event, that person appellant took steps to ascertain the nature of the object it
could not be said he act negligently causing the death of
causes it by a voluntary act, done without the skill another. The degree of negligence required under section
12 falls short of the standard resulting in recklessness. It is a
and care that are reasonably necessary under the little more than what is required in civil litigation
circumstances. Acting without the required competence Commented [sq39]: the appellant went shooting in the
forest. He approached a stream used by the villagers and
falls under this section. R v MENSAH, STATE v TSIBA, R v saw an object in the night. He shot at it killing it. It turned
out to be a human being. He was convicted for
AWONU, STATE v KWAKU NKYI: The accused, a student manslaughter by negligence. He appeals against the
conviction.
Appeal against the conviction dismissed but in regard to the
nurse, was asked to treat a sick child. He agreed to do so, sentence it was reduced to the circumstances leading to the
shooting.
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and injected the child twice with what he believed was

mepacrine. The child’s condition immediately
deteriorated and he died within a few hours. Post
mortem examination revealed that death was due to
arsenic poisoning. The accused was charged with
manslaughter and with practising medicine without
being registered. Held: the accused was negligent in
administering the wrong medicine however his
negligence did not amount to a reckless disregard to
human life to sustain a conviction of manslaughter. How
he was found guilty of practicing medicine without a
license.
1. SECTION 51: A person who causes the death of
another person by an unlawful harm commits
manslaughter, but if the harm causing the death is
caused by negligence that person has not committed
manslaughter unless the negligence amount to a
reckless disregard for human life. R v BATEMAN: Commented [sq40]: A doctor was convicted of
manslaughter arising out of his treatment of a woman in
childbirth. HELD: The court held that, In order to establish
criminal liability the facts must be such that in the opinion
2. SECTION 72: A person who negligently and unlawfully of the jury the negligence of the accused went beyond a
mere matter of compensation between subjects and
causes harm to any other person commits a showed such disregard for the life and safety of others as to
amount to a crime against the State and conduct deserving
misdemeanor. punishment.
4. SECTION 73: A person who
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(a) being solely or partly in charge of a steam-engine,

machinery, ship, boat, or dangerous thing or matter of any
kind, or
(b) having undertaken or being engaged in medical or
surgical treatment of a person, or
(c) having undertaken or being engaged in the dispensing
supplying, selling, administering, or giving away of a
medicine or a poisonous or dangerous matter, negligently
endangers the life of any other person, commits a
misdemeanor. OKUTU v THE REPUBLIC R v NOAKES Commented [sq41]: The appellant left his car in the
middle of the road without indicating warning signals. A car
ran into it causing injury to its occupants.
HELD: The court held that the appellant was guilty of
causing harm by negligently leaving the car out without any
warning signals
CAPACITY/EXEMPTION Commented [sq42]: A chemist was given two bottles to

fill with two liquids, one harmless and the other poisonous.
He mistakenly switched the bottles with the result that the
This is governed by section 26 and 57 of ACT 29. dangerous drug was represented as the harmless one. The
patient died when he took a dose of what he though was
the harmless drug. It was held that there was clear evidence
SECTION 26 OF ACT 29 of negligence
For the purposes of the R v Waite-defendant was

criminal law a person under under 14 and was
twelve years of age is convicted of rape. On
incapable of committing a appeal he was acquitted of
criminal offence.(doli that charge because it was
incapax) presumed that he was
physically incapable of
ILLUSTRATION
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If A, aged eleven years committing the offense-

administers poison to B., A Lord Coleridge
is not criminally R v Tatam-it was held that
responsible and is boys under 14 years could
considered incapable of not be accomplices in
understanding the sodomy as under law they
consequences of those are unable to
actions from a legal
perspective
ACT 57(5,6) OF 1992 CONSTITUTION
(5) The President shall not, NPP V AG, NPP V Rawlings,
while in office as President, Amidu v Kuffour
be personally liable to any
civil or criminal
proceedings in court.
(6) Civil or criminal Amidu v Kuffour
proceedings may be
instituted against a person
within three years after his
ceasing to be President, in
respect of anything done or
omitted to be done by him
in his personal capacity
before or during his term of
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office notwithstanding any

period of limitation except
where the proceedings had
been legally barred before
he assumed the office of
President.
DIPLOMATIC IMMUNITY- ART 31 OF VIENNA
CONVETION ON DIPLOMATIC RELATIONS
A diplomatic agent shall Armon v katz, Garcia v
enjoy immunity from the Torrejoh, tsatsu v the
criminal jurisdiction of the republic
receiving State.
He shall also enjoy
immunity from its civil and
administrative jurisdiction
except in certain cases
The law is not saying that what a child below 12 does is

not criminal but since he is below 12 he is excused from
punishment – rather, the law is saying that that child
cannot commit a crime.
There was what was termed mischievous discretion –
where, in respect of a child between ages 7-14, a
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rebuttable presumption of innocence was established,

which could be rebutted by evidence that the child knew
that what he was doing was wrong. The concept of
mischievous discretion with respect to infants is NOT
APPLICABLE in Ghana – the presumption of innocence
until proven guilty only applies to persons who are 12yrs
and above.
However, there appears to be an unsettled issue in the
area of sexual offences with respect to children between
ages 12-16. In Ghana, the age of sexual consent is 16yrs –
that is to say, a child below 16yrs is incapable of giving
his/her consent to sexual acts. Therefore, under sec. 101,
a person who engages in sexual conduct with a child under
16yrs is guilty of defilement – it does not matter whether
the child consented to the act. Thus, where the child is
below 16yrs, his or her of lack of consent puts the
perpetrator in jeopardy of being convicted for defilement
But what if the child is the perpetrator of that sexual
offence?
Two scenarios
1. A boy of 14yrs has sex with a girl of 13yrs with her
consent – has any of them committed defilement,
since neither partner is of the age of consent?
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2. A boy of 15 forcibly has sex with a girl of 17 – is the

boy liable although by the operation of law he cannot
consent to a sexual act?
The problem is this: Under sec. 26 both boys in scenarios
1 & 2 are doli capax, that is, they are legally accountable
for their actions, because they are above 12 yrs –
however, under sec. 101, the law is that both boys cannot
consent to sexual acts – so it seems that although on the
face of it they have committed a criminal offence, yet the
law in the same breadth is saying they cannot consent to
sexual acts – so wherein lies their liability, if any. Is it the
case that where the child is the victim then the law holds
that he/she cannot consent but that where he is the
perpetrator the law assumes that he should be held liable
for violating another’s sexual privacy?
In the case of scenario 2, it may sound plausible to suggest
that since the 15yr old boy applied force to have a sexual
connection with the girl, the law should hold him liable
since to hold otherwise would lead to the incongruous
situation of excusing an offender who is clearly doli capax
merely on the thin ice ground that he cannot consent to a
sexual act.
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Scenario 1 presents an even more difficult hurdle – this is

because there was no force applied in the sexual
connection – both parties were willing participants – both
are doli capax – both cannot consent to sexual acts – their
act was fully consensual – can each be held liable for
defiling the other?
An attempt is made at common law to address 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.
Would a Ghanaian court adopt the malita non supplet
aetatem principle to hold that since a child under 16yrs is
legally incapable of granting his/her consent to sexual
acts, the 15yr old boy in scenario 2 is to be conclusively
presumed to be incapable of committing a sexual offence
because he is not yet 16yrs and so should be exculpated
from liability?
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DEFENCES
Defences are excuses or extenuating circumstances (i.e.
factors that make an accused person’s actions excusable
or less blameworthy) – that is defences operate to either
excuse an accused from liability or limit his liability. They
can be partial or complete.
A complete defence operates to totally exculpate the
accused from liability. While a partial defence does not
entirely excuse from 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 AND IGNORANCE OR
MISTAKE OF LAW
Ignorance or mistake of fact can excuse from criminal
responsibility. However, ignorance or mistake of the law
cannot excuse from criminal responsibility – or as we say,
ignorance of the law is no excuse – ignorantia juris non
Commented [sq43]: (1)A person shall not be
excusat punished for an act which, by reason of ignorance or
mistake of fact in good faith, that person believes to
be lawful.
This is governed by section 29 of Act 29. R v TOLSON (2)A person shall not…be exempt from liability to
punishment for an act on the grounds of ignorance
that the act is prohibited by law.
NYAMENEBA v THE REPUBLIC: The appellants who were
Commented [sq44]: the accused was charged with
members of a religious sect had been growing “herbs of bigamy for marrying another man while her husband was
still alive and their marriage was still subsisting. It appeared
life” for four years or more. They used the herbs publicly that she was led to believe that her first husband was dead.
In acquitting her, it was held that a bona fide belief by the
accused in the death of her husband at the time she
for invocation, at their worship, for food and medicine. contracted a second marriage afforded her a good defence
on the charge of bigamy
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Upon report being made to the police against the sect, the
police investigated and found the herbs to be Indian
hemp. The appellants argued that they did not know at all
that the herbs were indian hemp. HELD: Ollennu JSC held
that, While ignorance of the law is no defence, ignorance
of fact is a complete defence. He concluded that, the
appellants were honestly ignorant of the fact that the
herbs in question are Indian hemp and as such, a plea of
ignorance of fact which under section 29 (1) of Act 29 is a
good defence.
FOLI VIII v THE REPUBLIC: the appellants were charged
with causing harm to a corpse they had cremated without
lawful authority. One of the appellants’ ground of defence
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. HELD: It was held that The act of cremation
cannot be justified just because it is supported by a
custom which is contrary to the law
IGNORANCE OR MISTAKE OF FACT/IGNORANCE OR
MISTAKE OF LA-SECTION 29
(1) A person shall not be Nyameneba v the state-
punished for an act the appellants were
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which, by reason of members of a religious sect

ignorance or mistake of who honestly believed that
fact in good faith, that the substance they were
person believes to be using were known as herbs
lawful. of life when it was indeed
Indian hemp. The
Exceptions to this rule appellants had been openly
according to mensa-bonsu using the ‘herbs of life’ and
is when the offence is one voluntarily showed it to the
of strict liability as seen in R court.
v Gibson, belief is not a R v Tolson- The appellant Commented [sq45]: the appellant in a drunken state
entered a house which he mistook for a brothel and
indecently assaulted a girl under the age of twelve years
reasonable one as seen in R married in Sept 1880. In who lived there. The offence being one of strict liability: the
defence could not avail to him
v King, the mistake does Dec 1881 her husband
not go to the root of the went missing. She was told
offence and the defendant that he had been on a ship
was negligent that was lost at sea. Six
years later, believing her
husband to be dead, she
married another. 11
months later her husband
turned up. She was charged
with the offence of bigamy.
She was afforded the
defense of mistake as it was
reasonable in the
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circumstances to believe
that her husband was dead.
Exception in R v wheat
&stocks-appellants had Commented [sq46]: The accused was charged with
bigamy that is marrying stocks whilst his marriage with his
adulteress wife was still subsisting. He pleaded in defence
reasonably belief that he had bona fide belief that the said subsisting marriage had
ended as he had applied for divorce and his solicitor had
divorce had been obtained sent a telegram informing him that the divorce petition was
ready to be assented to with his signature.
and this was held to be no Held: he was convicted with bigamy.
The court took the opinion that the present instance
defense and so they were needed to be distinguished from r v. Tolson as here the
marriage was to have come to existence after a divorce and
not the presumption of death of the wife. In the
convicted. circumstance the defence could not lead to his acquittal but
rather it would lessen his conviction.
R v Gibson- appellant in a
drunken state sexually
assaulted a minor. He was
convicted because offense
was that of strict liability
R v King= appellant did not
have reasonable belief to
believe that second
marriage was invalid as he
did not make inquiries
(2) A person shall not, Foli VIII v the Republic-the

except as in this Act appellants were charged
otherwise expressly with unlawfully cremating a
provided, be exempt corpse. The appellants
from liability to defence was that they were
punishment for an act on acting in accordance to
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the grounds of ignorance their custom as the

that the act is prohibited deceased failed to perform
by law. some purification rites
before she died. It was held
that The act of cremation
cannot be justified just
because it is supported by a
custom which is contrary to
the law
CONSENT
Consent is a common law defence and it is not expressly
stated as a general defence under Act 29. 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.
Consent validly obtained and sanctioned by law excuses
from criminal responsibility (It is a full defence).
Consent is governed by section 14 and 42 of ACT 29. Sec.
14 sets the specific rules on consent is void or negatived –
while sec. 42 sets the limits to the giving of consent.
CONSENT-SECTION 14
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(a) a consent is void if the

person giving the consent is
under twelve years of age,
or in the case of an act
involving a sexual offence,
sixteen years, or is, by
reason of insanity or of
immaturity, or of any other
permanent or temporary
incapability whether from
intoxication
or any other cause, unable
to understand the nature
or consequences of the act
to which the
consent is given
ILLUSTRATION
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
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(b) a consent is void if it is R v Williams-a choirmaster

obtained by means of under the pretext of
deceit or of duress; improving a girl’s voice had
sex with her. It was held
that the consent was
Consent is obtained by obtained by deceit and so
deceit or fraud if it would the consent was vitiated
have been refused but for R v Bolduc & Bird- the first
deceit or fraud – sec. 14(f) appellant was a doctor
who, about to conduct a
Duress is an act done with vaginal examination of a
force, harm, constraint, or patient, invited his lay
threat, with intent to cause friend, the second
a person, against that appellant to be present and
person’s will, to do or watch the procedure. The
abstain from doing an act doctor introduced the
friend as a medical intern
ILLUSTRATION and in consequence the
If a person induces a child woman consented to his
to have sexual intercourse presence. They were
by threats of charged with indecent
imprisonment, the consent assault. Held: although her
is void consent had been procured
by fraud, it did not affect
the nature and quality of
the act, that is, the medical
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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.
(c) a consent is void if it is Re T- woman did not
obtained by or under the consent to blood
exercise of an official, a transfusion under the
parental, or any influence of the mother
other authority; and the because she was a Jehovah
authority which is Witness. It was held that
exercised other-wise than the hospital was right in
in good faith for the giving her the blood
purposes for which it is transfusion as the refusal to
allowed by law, is for the give consent was because Commented [sq47]: ILLUSTRATION.
A the chairman of a company, consents to B drawing
money from the company to which A knows B does not
purposes of this section, a of the presence of the 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
power unduly mother commits the criminal offence of stealing unless B has acted
in good faith
exercised (Undue Re Nichol- the husband of
Influence); the school manager asked
the victim, a 13 year old
Consent is obtained by the girl, to sit on his private part
undue exercise of authority and she did. It was held that
if it would have been a person of authority taking
refused but for the exercise indecent liberties although
of that authority – sec 14(f) person does not resist he is
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still liable for assault. Here,

consent was vitiated
because it was under
undue influence.
(d) a consent given on Re A- refusal of consent to

behalf of a person by the separate conjoined twins
parent, guardian of that was brought to court and it
person, or any other was granted because such
person authorised by law to refusal was not for the
give or refuse consent on benefit of the people
behalf of that person, is involved.
void if it is not
given in good faith for the
benefit of the person on
whose behalf it is given;
(e) a consent does not have

effect if it is given by reason
of a fundamental mistake
of fact;
(f) a consent is, for the

purposes of this section,
obtained by means of
deceit or duress, or of the
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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;
(g) the exercise of

authority, for the purposes
of this section, is not
limited to the exercise of
authority by way of
command, but includes
influence or advice
purporting to be used or
given by virtue of an
authority;
(h) a person shall not be DPP v Morgan- the
prejudiced by the invalidity appellants had sex with a
of a consent if that person friend’s wife. It was held
did not know, and could not that if such mistaken belief
by the exercise of of consent was genuine and
reasonable diligence have honest it would have been
known, of the invalidity a defense. The jury did not
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believe their belief was

genuine.
SECTION 42- USE OF FORCE IN CASE OF CONSENT
(a) the killing of a person R v Cato-the appellant
cannot be justified on the injected heroin and farmer
ground of consent; died. It was held that
consent was not a defense
to manslaughter
R v Pike- the defendant
convinced the deceased to
take a drug so that he
would be able to satisfy his
sexual desire of having sex
with her unconscious. She
died and it was held that
the consent obtained was
not a defense.
(b) a wound or grievous R v Brown- the appellants
harm cannot be justified on achieved sexual
the grounds of consent, gratification by performing
unless the consent sadomasochism to
is given, and the wound or themselves. It was held
harm is caused, in good that bodily harm was
faith, for the purposes or in unlawful and so consent
the course of was not a defense.
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medical or surgical R v Donovan- the girl

treatment; consented to being beaten
by the defendant in order
to satisfy his sexual passion.
It was held that 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.
(c) consent to the use of
force for the purpose of
medical or surgical
treatment does not extend
to an improper or a
negligent treatment;
(d) consent to the use of Re W(a minor)- an anorexic

force against a person for minor failed to give consent
purposes of medical or to her being transferred to
surgical treatment, or a facility specialized in
otherwise for the benefit of treating eating disorders. It
that person may be given was held that the consent
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against the will of that of the court overrode her

person by the refusal of consent
father or mother or
guardian or a person
acting as the guardian, if
that person is under
eighteen years of age, or by
a person lawfully having
the custody of that person
if that person
is insane or is a prisoner in
a prison or reformatory,
and, when so given, cannot
be revoked
by that person;
(e) where a person is

intoxicated or insensible, or
is from a 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
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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;
(f) a party to a fight, R v Coney- the defendant Commented [sq48]: The accused were seen at the venue
of a prize fight. It was established that some persons in the
crowd were encouraging the fight. However, the three
whether lawful or unlawful, was engaged in an unlawful accused were not seen to do anything and there was no
evidence how they got there or how long they stayed. Held:
cannot justify, on the fight. It was held that such one can be held to have wilffuly encouraged the
commission of a crime if he was voluntarily and purposely
grounds of the consent of consent was not a defense present at and witnessing the commission of the crime and
offers no opposition thereto though he might be reasonably
another party, force which as the act itself was expected to prevent it and had the power so to do or at
least express dissent. The presence of the accused at the
fight amounted to abetting despite the fact that they did
that party uses with intent unlawful not act or utter a word to that effect. Non accidental
presence however is not conclusive of abetting.
to cause harm to the other
party;
(g) a person may revoke a

consent which that party
has given to the use of
force against that
person, and the consent
when so revoked shall not
have effect or justify force.
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PROVOCATION
Devlin gave the classic definition of provocation in R v
Duffy [1949] 1 All ER 932, as:
…some act, or series of acts, done…which would cause in
any reasonable person, and actually causes in the accused,
a sudden and temporary loss of self-control, rendering the
accused subject to passion as to make him or her for the
moment not master of his mind.
The philosophy behind the defence is that a person who
kills in a rage or fit of anger intended clearly to kill –
however, the killing was the product of extreme anger in
the face of an intolerable situation – thus, the killer was
not a calculating cold-blooded murderer because he did
not have time to reflect on his action – his was a crime of
passion or a hot-blooded crime – so he should be excused
to some degree
Thus, if a person kills another intentionally it is murder –
however, if a person kills intentionally but as a result of
provocation, the killer will not be held responsible for
murder but for the lesser offence of manslaughter
Therefore, provocation is a partial defence – and it
operates only in cases of homicide – that is, the defence
of provocation can only be raised by an accused who is
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under a charge of a crime of homicide. Section 52(a) of

Act 29 Commented [sq49]: A person who intentionally causes
the death of another person by unlawful harm commits
manslaughter and not murder or attempted murder, if that
person was deprived of the power of self-control by an
It is not every kind of provocation that will suffice. To be extreme provocation given by the other person as is
mentioned in sections 53, 54, 55 and 56
considered, it must be provocation of an extreme kind
that causes the accused to lose his power of self-control.
To be considered, the extreme provocation that causes
the killer to lose his power of self-control, must be
prescribed by law. Provocation is governed by section 53
of Act 29.
PROVOCATION-SECTION 52A
A person who ALL CASES
intentionally causes the
death of another person
by unlawful harm
commits
manslaughter, and not
murder or attempted
murder, if that person
(a) was deprived of the
power of self-control by
an extreme provocation
given by the other
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person as is mentioned in
sections 53
SECTION 53- The following may amount to extreme
provocation:
(a)an unlawful assault and R v ekpo- the accused
battery committed on the received a wound in his eye
accused person by the and the deceased also
other person, in an received a wound by a
unlawful fight or machete and fell. The
otherwise, which is of a accused ran up to him an
kind, in respect of its inflicted a fatal wound. It
violence or by reason of was held that he was
accompanying words, provoked not only by the
gestures, or other wound he received but also
circumstances of insult or by the attack on them by
aggravation, that is likely to deceased and his clan Commented [sq51]: the appellant killed the nephew the
deceased after he was attacked by the deceased who had
deprive a person of slept with his girlfriend. The attack was of a nature that it
compelled the appellant to seize the stick the deceased was
using and he struck the deceased with a single blow killing
ordinary character and in him. His defence of self defence failed since the force was
ZINTEGE v THE REPUBLIC, excessive. On appeal the court held that the defence of
the circumstances in provocation could avail to him since the deceased acted in a
manner or of a kind that caused the appellant to loss his
KUO-DEN SOBTI v THE self-control.
which the accused person Commented [sq52]: appellants were dagarti’s who killed
REPUBLIC
was, of the power of self- a Fulani who was allegedly stole their cattle. Their appeals
to the court of appeal was dismissed and on further appeal
to the court of appeal they contended that the direction on
control; provocation was not properly put before the jury and that
the jury being southerners did not appreciate the value of
cattle
Mere words will not suffice Held: that stealing was not one of the matters that could
amount to provocation and therefore there was no reason
to leave the issue of provocation to the jury.
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ODURO v THE REPUBLIC Commented [sq50]: the appellant killed the wife after
the deceased slapped and rained insults on him. He claimed
to have been provoked by the words of the wife.
Held: mere words did not constitute provocation. Under our
(b) the assumption by the State v Ayi Grunshie- the law for there to be provocation there must be an assault or
battery accompanied by words rendering the assault and
other person, at the accused was convicted for battery violent in itself.
commencement of an the murder of another

unlawful fight, of an whiles hunting. He claimed
attitude manifesting an the deceased had shot him
intention of instantly and spoken in a language
attacking the accused unknown as such he
person with deadly or retaliated. The trial judge in
dangerous means or in a directing the jury held that
deadly manner; the provocation should be
in such a manner that there
was a threat of loss of life or
grievous wound so to
compel the accused to loss
his self-control. He
appealed from his
conviction
HELD: that the jury were
not properly directed but
rather the provocation
must be of such kind or
manner accompanied by
words which would
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deprive an ordinary man of

his self- control. The court
held the act to amount to
provocation.
(c) an act of adultery Kekey v republic- Commented [sq53]: the appellant a blind man stabbed
the wife for allegedly indulging in extra marital affairs. He
claimed to have been proved by the fact that the deceased
committed in the view of State v kwadwo fori-mere aided the man to escape
Held: that the essential of murder had been established
the accused person with or confession would not
We think if a blind man caught his wife in the act of adultery
and he, on the spur of the moment inflicted the fatal injury,
it would be wrong to deny him the defence of provocation,
by the wife or the husband, amount to provocation for the only reason that he could not see the act of adultery
with his own eyes. In those circumstances, it would seem to
or the criminal offence of us reasonable to say that for a blind man the expression “in
the view of” reasonably means “to the hearing of.”
Agyemang v Republic-
unnatural carnal Commented [sq54]: The appellant suspected his wife,
deceased danced adowa the deceased, of adultery. On the fatal day, when his wife
knowledge committed in and her mother were going to the farm, the appellant
with appellant’s wife and suddenly appeared, armed with a cutlass and attacked his
the husband’s or wife’s wife, who died later the same day from the injuries
sustained. In his defence, the appellant alleged that his
later went indoors. deceased wife had confessed to adultery and had slapped
view on the wife, or the him. In this he was disbelieved by the trial judge, who
Adultery was not convicted him for murder.

husband, or child; and Held:the trial judge decided correctly. A confession to
adultery alone will not amount to such extreme provocation
committed in his view as would reduce the murder to one of manslaughter.
Commented [sq55]: the accused suspecting the wife of
R v tekyi- appellant found infidelity with the deceased followed him and the wife to
the deceased’s house after they left a funeral ground
together. The appellant waited for a while and after what
wife in circumstances seems to be a sexual affair between the two, the deceased
exited the house and was killed by the appellant. At trial his
which pointed strongly of plea of provocation was rejected and was convicted for
murder. He appealed
Held: the onus of proving provocation was that of the
her committing adultery. accused. The defence of provocation in 53(C) is to the effect
that the accused saw the wife committing adultery with
Held that adultery was not another, therefore there was no question of the objective or
subjective test
committed in his view and
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so provocation would not

lie
(d) a violent assault and R v Konkomba- Tordo
battery committed in the Konkomba and Kwabina
view or presence of the Basare went out hunting.
accused person on the Basare returned to the
wife, husband, or child, or village to report that he had
parent, or on any other shot Tordo Konkomba in
person who is in the the bush during the hunt.
presence and in the care or The next day, Tordo’s
charge of the accused father and uncle and some
person. other people pounced on
Basare and beat him to
death. They claimed that by
seeing their son and
nephew wailing in agony,
they were provoked to kill
Basare. HELD: According to
Ollennu JSC, [sec 53(d)] can
apply only where the
assault and battery were
committed “in the view or
presence of” the [accused].
There is no evidence that
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the appellants (or either of

them) witnessed the act of
the shooting of Tordo
Konkomba, or were
anywhere within the
precincts where Tordo was
shot, so that they could
have seen it done. Seeing
the unfortunate Tordo in
agony some time after he
had been shot cannot
relate back to the moment
of shooting.
R v rose- provocation lies as
assault on mother was
committed in his view
EXCLUSION OF BENEFIT OF PROVOCATION-SECTION 54

Despite proof on behalf of the accused person of a
matter of extreme provocation, the criminal offence
shall not be reduced to manslaughter if it appear
(a) that the accused ATTA v THE REPUBLIC: the
person was not in fact appellant caught his wife
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deprived of the power of and his brother having sex.

self-control by the Later on he discussed the
provocation; or issue with the wife as to
why she went in for his
brother. He was not
satisfied with his wife’s
explanation, so he invited
her to the latrine and
slashed her to death with a
cutlass.
He then returned to his
room, took his gun and
proceeded to his brother’s
shop. He had a short
discussion with the brother
and shot him to death.
HELD: It was held that at
the time he killed his wife
and brother, he was not in
a state of passion as to
make him no longer master
of his mind. And that in the
circumstances, he was not
deprived of the power of
self-control.
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Donkor v The Republic: the

appellant killed the
deceased out of fear that
she would report him to the
chief and the community
for stealing her farm fruits.
He argued that he was
provoked by the shouts of
the deceased. HELD: The
defence of provocation was
not available to a person
causing the death of
another if the person had,
prior to the provocation
evinced the intention to
kill.
(b) that the accused person Boateng v republic- after
acted wholly or partly from refusal by police to release
a previous intention to family members after their
cause death or harm, or to arrest after a fight between
engage in an unlawful fight, the two factions over a
whether or not the accused piece of land, accused met
person would have acted deceased and a fight
on that purpose at the time issued. Accused pulled out
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or in the manner in which a dagger and stabbed the

the accused person did act deceased. HELD: It was
but for the provocation; or held that the accused was
armed and intended to
cause harm with the dagger
ILLUSTRATION
in a fight he anticipated
A, who has long been with the deceased
seeking an occasion to
Appianing v republic-. Commented [sq56]: The appellant was charged with and
convicted for the murder of a police corporal who had tried
fight in a deadly manner to arrest him for assaulting a woman. The prosecution
alleged that while the deceased was trying to arrest the
with B, kills B. here, if the appellant a struggle ensued during which the appellant
fatally wounded the deceased on the head with a hammer.
The appellant’s defence was that after a quarrel with the
jury think that A said woman he took some alcoholic drink and retired to rest
in his room when the deceased and another man entered
engineered a situation of the room and ordered him to accompany them to the police
station. When he refused to go with them on their failure to
being in B’s way for the produce their warrant of arrest or identity cards, a struggle
ensued during which one of the two men, in an attempt to
hit the appellant with an iron instrument, accidentally hit
purpose of taking an the deceased’s head which resulted in his death. HELD: The
evidence showed that the appellant was the victim of an
opportunity which might unprovoked assault and also that the deceased received the
fatal wound in the course of one continuing struggle. The
defence of provocation could not therefore be excluded by
occur to fight with B, the reason of lapse of time, unreasonable mode of resentment
or that the appellant was not deprived of the power of self-
criminal offence of A is not control as provided by Act 29
reduced to manslaughter
by reason of the blow
which A received from B.
(c) that, after provocation Boakye v republic- whilst

was given, and before the the first appellant was
accused did the act which engaged in an unlawful fist
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caused the harm, a time fight with the deceased the

elapsed or circumstances second appellant felled the
occurred that an ordinary deceased with a stone he
person might have threw at him and that the
recovered self-control; or first appellant continued
punching the deceased
even when the deceased
was on the ground. The
deceased subsequently
died from injuries he
sustained in the fight.
HELD: at the time the
appellant struck the
deceased with the knife,
the appellant was not in
any mortal danger of losing
his life. Furthermore, he
had had enough reasonable
time to cool down. His
action could therefore not
constitute self-defence
under section 31 nor
provocation under section
52 of the Criminal Code,
1960 (Act 29), respectively
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R v duffy- after fight with

husband, accused went
away to change clothes and
later hit the husband with a
hatchet and a hammer.
HELD: provocation will not
lie because time has
elapsed.
in Konkomba, it was held Commented [sq57]: Tordo Konkomba and Kwabina
Basare went out hunting. Basare returned to the village to
report that he had shot Tordo Konkomba in the bush during
that the killing could not be the hunt. The next day, Tordo’s father and uncle and some
other people pounced on Basare and beat him to death.
reduced to manslaughter They claimed that by seeing their son and nephew wailing in
agony, they were provoked to kill Basare. HELD: the killing
could not be reduced to manslaughter on the ground of
on the ground of provocation because such a time had elapsed between the
assault complained of and the their killing of the alleged
provocation because such a provocateur that an ordinary person would have recovered
his self-control..
time had elapsed between
the assault complained of
and the their killing of the
alleged provocateur that an
ordinary person would
have recovered his self-
control.
(d) that the accused person R v lesbini- the accused
acted in a manner, in went to a shooting gallery
respect of the instrument to practice. The deceased
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or means used or of the made a jocular quip (racist

cruel or other manner in comment) at him and so he
which it was used, in which ran after her and shot her.
an ordinary person would It was submitted that his
not, under the mental balance was
circumstances, have been impaired and therefore the
likely to act. effect of the taunting
words on him should be
considered as sufficient
ILLUSTRATION
provocation. Held: the
A receives a slight blow principles applicable to the
from a weaker man, B, and defence of provocation
he beats and kicks B to were wide enough and
death. A’s criminal offence ought not to be extended.
is not reduced to
Sabbah v the republic-
manslaughter
deceased went to accused
Commented [sq58]: the deceased, Akua Nsiah, found the
farm for palmwine and appellant on her farm apparently stealing her palm nuts.
She accosted him and according to the appellant, she rained
accused decapitated him insults on him and hit him twice with a palm branch the size
of his wrist, whereupon he lost his self-control and killed.
In this statement to the police, the appellant indicated that
Donkor v republic- accused he did not initially intend to kill her. But sensing danger of
her reporting him, he decided to kill her. In his words, “As I
hit her with my cutlass, she was wounded. She then raised
was caught by deceased an outcry. As she continued shouting, I decided to kill her if
not she would go and report me. I slashed her so many
stealing and claims to have times with my cutlass and eventually she died.” HELD: the
defence of provocation was not available to the appellant
because his actions, from his own words, indicated that he
been provoked by her had formed an intention to kill. That if truly the appellant
had not formed an intention to kill, he would have stayed
his stand and stopped any further attacks the moment he
realized that the deceased had been wounded by his first
cutlass blow.
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insults and her hitting him

with palm branch
R v bedder- an impotent
youth visited a prostitute in
a bid to establish his virility.
He failed in the proof, and
the prostitute taunted him.
Whereupon he killed. His
appeal against conviction
was dismissed that it did
not constitute provocation.
Larti v republic- accused
inflicted several cutlass
wounds on deceased after
a fight and being cooled
down by mother. HELD:
The court held that the
defence of provocation
would be denied him
because of the manner in
which the killing was done.
(2) For the purposes of Practice note 1962 2 Glr
subsection (1), “an 181 S.C.: In directing the
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ordinary person” means jury on the issue of

an ordinary person of the provocation it is necessary
community to which the to consider the community
accused belongs. to which the accused
belongs.
(3) Where a person, in the Boakye v republic- Commented [sq59]: whilst the first appellant was
engaged in an unlawful fist fight with the deceased the
second appellant felled the deceased with a stone he threw
course of a fight, uses a at him and that the first appellant continued punching the
deceased even when the deceased was on the ground. The
deadly or dangerous means deceased subsequently died from injuries he sustained in
the fight. HELD: at the time the appellant struck the
deceased with the knife, the appellant was not in any
against an adversary who mortal danger of losing his life. Furthermore, he had had
enough reasonable time to cool down. His action could
has not used or therefore not constitute self-defence under section 31 nor
provocation under section 52 of the Criminal Code, 1960
commenced to use a (Act 29), respectively
deadly or dangerous means

against that person, the
accused person shall be
presumed to have used
the means from a
previous intention to
cause death, although,
before the actual use of the
means, the accused person
may have received a blow
or hurt in the fight that
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might amount to extreme

provocation.
(4) Subsection (3) applies Boateng v republic- after

if it appears that the refusal by police to release
accused person intended family members after their
or prepared to use those arrest after a fight between
means before the accused the two factions over a
person had received a piece of land, accused met
blow or hurt in the fight deceased and a fight
that might be a sufficient issued. Accused pulled out
provocation to use means a dagger and stabbed the
of that kind deceased. HELD: It was
held that the accused was
armed and intended to
cause harm with the dagger
in a fight he anticipated
with the deceased
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SECTION 55-MISTAKE AS TO MATTER OF

PROVOCATION
A lawful blow, arrest or any
other violence may be a
provocation, despite its
lawfulness, if the accused
person neither believed,
nor, at the time of the act,
had reasonable means of
knowing or had reasonable
ground for supposing that it
was lawful.
SECTION 56-MISTAKE AS TO PERSON GIVING
PROVOCATION
Where a sufficient R v EKPO: In a tribal attack
provocation is given to the the accused was wounded
accused person by one by an arrow. He turned not
person, and the accused knowing who shot at him
person kills another person and killed the deceased.
under the belief, on HELD: The court held that
reasonable grounds, that since the whole group
the provocation was given offered the provocation it
by that other person, the would support the defense
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provocation is admissible of the appellant and no

for reducing the criminal doubt he committed the
offence to manslaughter act while in the throes of
in the same manner as if it passion.
had been given by the KALIBU v THE REPUBLIC:
person killed; but, it is not a the appellant were in a
provocation to kill a fight with an opposing clan.
different person. Several members of both
groups were injured and
one died. The appellant
was convicted for his
murder. HELD: The court
held that the defence of
provocation would avail to
them since the deceased
was one of those offering
the provocation.
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INSANITY
This is governed by Section 27 of Act 29. There are two
forms of this defence; insanity simplicitor and insane
delusions.
Insanity (section 27(a))
Special verdict in respect of an insane person
Where a person is accused of a criminal offence, the
special verdict provided by the Criminal and other
Offences (Procedure) Act, 1960 (Act 30) in the case of
insanity is only applicable
(a) 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
In this instance the accused is by reason of insanity not
compos mentis unable to comprehend the nature or the
consequence of the act constituting the crime. This is
kmown as the M’naghten rule.
In all cases a man is presumed to be sane and to possess a

sufficient degree of reason to be responsible for his crimes
until the contrary is proved to their satisfaction and that
to established the defence of insanity it must be proved
that at the time of the crime the accused was laboring
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from a defect of reason from a disease of the mind and as

such did not know the quality of the act and its nature or
he did know the act but did not know it was wrong. Regina
v Windle Commented [sq60]: the appellant windle lived with his
wife who was said to have a defect with her mind so as to
compel him to poison her. He informed the police that he
had given her 100 aspirins tablet and that he supposed
that he would be hanged. At trial a doctor gave evidence
INSANE DELUSIONS (Section 27(b)) to the effect he suffered from insanity known as
communicated insanity folie a deux as a result of living
The section provides that if that person did the act in with the wife. He was convicted. He appeals
held: dismissing the appeal on the ground that he knew
respect of which that person is accused under the the consequence of the act he did and was clearly not
insane under the law. Goddard C.J said that for the
defence of insanity to prevail the accused must shew that
influence of an insane delusion of a nature that renders he was insane so as not to discern the nature of the act or
that it was wrong. Wrong he said connoted criminally
that person, in the opinion of the jury or of the Court, an wrong but not morally wrong. For instance in the
Decalogue it is morally wrong to kill, so is it under the law,
unfit subject for punishment in respect of that act. how it is wrong morally to commit adultery but not so
under the law i.e. not a criminal offence.
Insane delusion has been explained to cover situations the
accused lives in a world of his own which cannot be shaken
by any fact, as such if he is punished he would be unable
to comprehend why he is being punished.
When an insane delusions is pleaded the state of mind at
the time of the incident is what is material but not what is
afterwards. R v MOSHIE Commented [sq61]: the appellant was convicted for
berserk killing in his town. He at the time of the commission
of the crime was a under the delusion that he was being
taken to Kumasi to be killed and in self defence killed all to
liberate himself. This set of facts was peculiar to him. HELD:
In relation to insane delusion, the courts are not Ollenu j. in giving a special judgment of guilty but insane
held that the test is whether the accused had a delusions
concerned with the irresistibility to act but rather if the which could not be shaken by facts, and that at the time of
the crime he was in the state of delusion. He found that to
accused was unconscious of acting. That is there is no be so in the case of moshie and overturned the judgment
for murder.
requirement that the mental delusions should lead to an

incapacity to control conduct. It is sufficient if the accused
acted while in a state of mind induced by a disease in
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which a false belief is held that cannot be shaken by facts.

ABUGRI FRAFRA @ PINI FRAFRA v THE REPUBLIC Commented [sq62]: the accused was convicted for the
murder of his landlord’s brother. He was under a delusion
that the deceased was persecuting him. As such he attacked
AKPAWEY v. THE STATE the deceased with a cutlass killing him. At trial the judge
directed the jury that the delusions must be such to render
FACTS: The appellant killed two children under the the accused unable to control his actions. HELD: On appeal
the Amissah J.A held that the jury was misdirected that
delusion that they and their father had through juju under our law the direction must be such that the accused
committed the act at the time of the delusions under a
means tried killing him. In his statement to the police he mistaken belief induced by a disease which cannot be
shaken by facts.
admitted killing the children, however in a subsequent

statement he denied killing the children. At trial he
persisted that the children were alive.
HELD: In allowing the appeal and entering a special verdict
ollenu J. held that the test should be to the effect that the
delusion is of such a nature that the accused is unfit to be
punished. He held that the accused was unfit to be
punished from the facts.
Manu v. THE REP Commented [sq63]: The important fact is that the
accused was at the time of the incident laboring under a
delusion and not what it becomes subsequently
FACTS: the accused killed two persons whom he claimed
to be animals. The trial judge did not properly direct the
jury as to the law on insane delusions.
Insane delusions as a state of mind can be either
temporary or permanent. Appellant’s remembrance of
events prior to the death of the deceased does not
necessarily negative the defence of the insane delusions.
The appellant at the time of killing was experiencing an
insane delusion thus; a special verdict would be given.
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AUTOMATISM
The psychiatric condition of automatism occurs when a
person acts without his or her cognitive faculties, in much
the same manner as an automaton. Here the person does
the act unconscious of the fact that he did the act. E.g. kills
another whiles sleep walking. The absence of the
cognition during the act has been argued to have negate
the voluntary requirement of the actus reus. Others argue
that the absence of the cognitive factor implies the mind
did not accompany the act thus negating mens rea.
Automatism is not expressely stated in the code but the
court has held in Dogo Dagarti v The Republic that the Commented [sq64]: the accused killed the wife in an
epileptic fit. He appealed against his conviction on the
grounds of automatism. The court held that the defence of
defence of automatism holds and it would be treated as a automatism is applicable in this country but the plea of
defence of automatism which is not supported by evidence
disease of the mind. would not avail to the appellants. A claim by the accused
that he lost his consciousness because he suffered from
epilepsy refers to plea of insanity due to a disease of the
Case: Bratty v A-G for Northern Ireland. mind.
Facts: the accused strangled a girl whiles driving in a car.

He claimed that he did not know what he had done
because he had no recollection of anything except that he
had experienced a temporary blackout, during which he
must have strangled the girl. He was convicted for murder.
Held: the defence of automatism would not avail to an
accused if he alleges the act to be due to a disease which
affects the mind therefore rendering him insane and if the
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said insanity plea is rejected by the courts. Lord denning

held that if a man is unconscious of his acts due to his
inability to control is actions the defence of automatism
would not avail. If he is unconscious due to drunkenness
the defence would not avail. the appeal was dismissed
since the plea was unconsciousness due to a disease of
the mind.
Case: Reg v. Burgess

Facts: the appellant attacked a friend with whom he was
spending an evening, while the friend was asleep. he hit
her on the head with a bottle then a video recorder and
then attempted to strangle her. He claimed that he was
sleep walking at the time and pleaded automatism. held:
That such cases of automatism came within the rules of
M’naghten on insanity because any mental disorder which
has manifested itself in violence and is prone to recur is a
disease of the mind. The appellant here suffered from a
disease of the mind due to internal factors such as
depression.
Other cases on insanity
Collins alias Derby v. The Republic

Facts: the appellant was convicted of murder although
there was evidence of insanity. Held: that the failure to
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consider appellant’s history of schizophrenia prejudiced

him unduly. The requisite state of mind is at the time of
the offence was committed and not at a subsequent date.
Special verdict substituted.
Williams v. The republic

Facts: the accused set fire to her husband who died as a
result of injuries sustained therefrom. She pleaded
insanity.
Held: the state of mind, apart from the evidence of history
is often discovered by contemporaneous acts and
behavior of the accused, viz a viz, conduct immediately
before, at the time or immediately thereafter. The
evidence did not show sufficient state of mental
derangement for the defence to succeed.
Helegah v the State plea of amnesia

Facts; the appellant killed the wife after he was
acquainted with the information that she was about
leaving him for another man. A day after the killing he
gave evidence recounting the incident. At trial he pleaded
insanity because he did not recall the event.
Held; that the plea of amnesia does not constitute
insanity. Insanity can be shown to exist if there is a
hereditary of any such in the family. Marital jealousy has
never been classified as a symptom of insanity.
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INTOXICATION
A person who imbibes a mind altering substance and
whose mental state is thereby impaired is said to be
intoxicated. This could be as a result if intake of alcohol or
any drug of the effect prescribed by a doctor. Generally,
speaking intoxication is no defence for a criminal charge.
Commented [sq65]: Except as provided in this section,
This is provided in section 28(1). R v OWAREY intoxication is not a defence to a criminal charge
Commented [sq66]: The accused was convicted of
Every man is presumed sober until he proves otherwise. murder. he contended that at the time of conviction the
judge failed in his summing up to considered the fact that
he was intoxicated. the court held that although there was
There are two kinds of intoxication, voluntarily evidence of heavy drinking prior to the commission of the
offence, it was not such as to prevent the accused from
intoxication and involuntary intoxication. Moreover, the forming an intention to kill. Appeal dismissed.
Commented [sq67]: Intoxication is a defence to a
accused must prove that by virtue of the intoxication, he criminal charge if by reason of the intoxication the person
charged, at the time of the act complained of, did not know
was unable to tell the nature and consequence of his that the act was wrong or did not know what that person
was doing and
(b) the person charged was, by reason of intoxication,
actions. insane, temporarily or otherwise, at the time of the act.
Commented [sq68]: the appellant was convicted of the
Voluntary Intoxication murder of his wife whom he had invited earlier to the farm.
He pleaded intoxication because earlier that day; he had
drunk a bottle of akpeteshie. The defence failed and he
This is governed by Section 28(2b) of Act 29. appealed. Held: dismissing the appeal that the state of
intoxication must be such as to affect the ability of the
accused to appreciate the nature and quality of his act. Bare
Under this kind of intoxication the accused must show evidence of the intoxication falls short of the standard
required to sustain the defence.
that he was extremely intoxicated so as to be unable to Commented [sq69]: The accused person knew that he
had psychopathic tendencies which were aggravated by the
comprehend the nature and consequences of his action. intake of alcohol. In order to kill the wife he drunk a large
bottle of whisky and then killed her. Held: that a person
who evinces an intention to kill another and was temporary
In this case a verdict of insanity is entered. KETSIAWAH v deranged of his reason at the time of the killing was the
result of his own voluntary act in taking the drink is guilty
and does not fall within the M’NAGHTEN RULE
THE STATE, ATTORNEY GENERAL FOR NORTHERN
Commented [sq70]: conviction for murder upheld in
IRELAND v GALLAGHER, CHUTWA v R spite of evidence of intoxication. Held: the person must be
so drunk as to be incapable of forming the intent essential
to the crime. To obtain the benefit of the defence, it is not
enough to prove a mere state of intoxication.
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INVOLUNTARY INTOXICATION
This is governed by section 28(2)(a) of Act 29 Commented [sq71]: Intoxication is a defence to a
criminal charge if by reason of the intoxication the person
charged, at the time of the act complained of, did not know
that the act was wrong or did not know what that person
R v. Kingston was doing and
(a)the state of intoxication was caused without the
Facts: the accused person had been invited to the flat of consent of that person by the malicious or negligent act
of another person
another. He was given refreshment laced with a drug and
was then filmed having homosexual intercourse with a
minor, for the purposes of blackmail. He prosecuted for
the offence and although he pleaded intoxication by the
act of a third person he was convicted at trial due to the
failure of the judge to properly direct the jury. He
appealed.
Held; allowing the appeal. That there was sufficient
evidence of involuntary intoxication for the jury to have
been directed thereon and that a failure to do so this had
rendered the conviction unsafe such that it could not be
allowed to stand
Reg v. Allen
Facts: The defendant was charged with buggery and
indecent assault on a woman. He sought to raise a defence
of involuntary drunkenness. He had consumed several
pints of beer and was offered further alcohol of a type
which he had not taken before but was described to him
as homemade wine
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Held: the mere ignorance of the strength of the drink that

a person voluntarily takes does not make his consequent
intoxication involuntary.
The effects of the plea of intoxication in 28(2) (a)

and(b)are found in:
Section 28(3)
(3) Where the defence under subsection (2) is
established, then (a) in a case falling under paragraph
(a), the accused person shall be discharged, and
(b) in a case falling under paragraph (b), the special
verdict provided for by the Criminal and Other Offences
(Procedure) Act, 1960 (Act 30) in the case of insanity shall
apply.
Section 28(4)
Intoxication shall be taken into account for the purpose of
determining whether the person charged had formed an
intention, specific or otherwise, in the absence of which
the person charged would not be guilty of the criminal
offence
Look at the Gallagher case.
R v. Hardie
Facts; the appellant was in a relationship with a woman.
Upon a breakdown of the relationship he took some pills
of valium a sedative. Thereafter, he set on fire the
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bedroom in which the victim was with the child. At trial he

pleaded intoxication, the trial rejected the plea on the
grounds that it was irrelevant in determining whether the
requisite mens rea had been formed. He appeals
Held: the direction was wrong because the effect of
valium as an intoxicant was relevant in determining
whether the appellant had formed the necessary mens
rea for the offence. The appellant was acquitted as he was
had no knowledge of the nature and consequence of his
act due to intoxication.
QUEEN v. O’ Connor
Facts: the accused stabbed a police officer stealing from
the officers car. He was charged with murder and
acquitted upon the successful plea of intoxication. the
crown appealed the court held that by stabbing the man
as a result of intoxication and it was not his voluntary act.
DPP v. BEARD
FACTS: The respondent had killed a 13nyear old girl whom
he was raping by placing his hand on the mouth and his
thumb against her throat to stop her from calling for help.
She died of suffocation. His plea of intoxication was not
allowed by jury. He was sentenced to death. The court of
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criminal appeals quashed the conviction, substituted a

verdict of manslaughter and sentenced him to 22 years.
The crown appealed.
Held: Lord Birkenhead: where a specific intent is an
essential element in the offence, evidence of a state of
drunkenness rendering the accused incapable of forming
such intent should be taken into consideration in order to
determine whether he had in fact formed the intent
necessary to constitute the particular crime. If he was so
drunk that was incapable of forming the intent required,
he could not be convicted of a crime which was committed
only if the intent was proved. The drunkenness can
negative the commission of a crime.
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INCHOATE OFFENCES
Inchoate offences are offences which basically are
incomplete offences. It is twofold:
a. a person sets out to commit an offence but is unable to
complete it. Also, it describes offences which precede the
commission of the substantive offence.
b. a person does the act constituting the offence but the
results are not achieved. Eg. A person who sets out to
commit suicide or to kill a person but that person survives
the gun shot or lethal strike from the knife.
There are 4 types of inchoate offences known under our
criminal jurisprudence, namely:
 conspiracy
 abetment
 attempt
 preparation
Though, we also have crimes that may be termed as
double inchoate offences – e.g.
• conspiracy to abet
• abetment of a conspiracy
• abetment of attempt
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CONSPIRACY
Conspiracy is in four kinds
(a) An agreement between two to commit a crime
(b) An agreement to abet a crime
(c) Two or more acting together to commit a crime
(d) Two or more acting to abet the commission of a
crime.
The main determinant of conspiracy is the element of an
agreement to commit a crime. Mere harboring of criminal
intentions or communication of such intentions will not
suffice. However, if you communicate your criminal
intentions to another – and you suggest to the other that
you desire to carry your intention to fruition, and that
other agrees to go along with your designs to commit the
crime, the agreement itself is criminal even if neither of
you has lifted a finger or never lifts a finger in furtherance
of the agreement
Conspiracy is treated under sections 23 and 24 of Act 29. Commented [sq72]: Section 23(1) provides that:
Where two or more persons agree to act together with a
common purpose for or in committing or abetting a
from this, the main elements of conspiracy are: criminal offence, whether with or without previous
concert or deliberation, each of them commits a
conspiracy to commit or abet the criminal offence
(a) Plurality of minds i.e. two or more persons
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(b) Agreeing to act together with a common

purpose.
(c) Acting together for a common unlawful purpose.
i. Plurality of Minds: From the wording of section 23(1),

there must be at least two conspirators for the charge
to suffice. That is, the offence of conspiracy
contemplates the involvement of at least two persons
since a person cannot agree with himself. A man can
even conspire with his wife.
A person can only be held for conspiracy if he conspires

with another person – that is to say, the other party to Commented [sq73]: The appellant was convicted for
conspiring with a spirit for defrauding the complainant by
representing to him that he could double his money. The
the agreement must be a person. Thus, a charge of appellant then took the complainant about midnight to mile
12 on the Accra-Winneba road and the Teshie beach on
conspiracy will not hold if the other party to the three occasions. On two of these occasions, the appellant
spoke and a voice replied to the hearing of the accused.
The complainant was finally given a pillow case containing
supposed agreement is alleged to be a non-person, say some items with instructions not to open it till three days
had elapsed. When he opened the pillow case, it contained
a spirit. BLAY v THE REPUBLIC. Person here do not stones and bundles of newspapers cut into the size of
currency notes. The appellant was found liable for
conspiracy to defraud. On appeal HELD: Archer j. in allowing
denote only natural persons. the appeal on conspiracy held as follows: Conspiracy
involves agreement between two or more human beings
and not between one human being and an unknown
doubtful voice at midnight. Moreover, it was not proven by
Since one person cannot be guilty of conspiracy, on a the ag that the voice at the beach was that of a human
being.
charge of conspiracy, if all the accused are acquitted Commented [sq74]: the accused was charged with
another for conspiring to extort money from applicants of
import licences. His co-conspirator were acquitted and
except one, that one must also acquitted, unless it is cleared of the charges. The issue was whether the accused
was still liable to be convicted for the conspiracy. HELD: On
proved that he conspired with some other person not a conspiracy charge, if all but one of the parties were
acquitted that one must also be acquitted unless it was
named in the charge or at large. REPUBLIC v BOSSMAN. charged and proved that he conspired with some other
persons not named in the charge.
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In contrast where the co-conspirators are tried

separately the acquittal of one does not necessarily
imply the other is innocent of the conspiracy. This is
because the circumstances pertaining to each trial may
differ. DOE v THE REPUBLIC Commented [sq75]: The appellant was charged with
conspiracy with 7 other workers of the BoG. Their charge
sheets was consolidated which was against the practice of
COULD A COMPANY OR CORPORATE PERSON BE A the courts. Moreover, the person who was charged with the
appellant pleaded not guilty to the charge and was
PART OF A CONSPIRACY? acquitted. The appellant appeals contending that since the
other accused was acquitted then the charge of conspiracy
against him could not hold Held: the appeal court dismissed
Reference to a company implies the mind directing the his appeal. The court held that the consolidating of the
charge sheets was bad in law as such an irregularity. Also,
affairs of the company. despite the acquittal of the second accused, the conviction
for conspiracy was valid since the seven other workers
worked in concert to withdraw the monies of the bank’s
An accused person can be convicted for conspiracy if his client
co-conspirator is acquitted if it is shown that he had

conspired with persons unknown. r v. Anthony Commented [sq76]: the appellant and others stole from
a company tractor spares ltd an amount of money on the
highway. They were charged with conspiracy to commit a
crime of stealing. The other were acquitted of the charge of
conspiracy but the ap pellant was convicted. He appealed
The mens rea for conspiracy is an intention to agree. against his conviction.
Held: despite the acquittal of the others his conviction was
good at law since he conspired with persons unknown
That is an intentional conduct evidencing an agreement.
The actus reus is the actually agreement. To determine
if there is conspiracy the courts looks not only at the
agreement but also the acts of the accused. That is, it is
difficult to determine conspiracy by the looking back at
agreement but the subsequent acts of the accused are
relevant to the establishment of the charge.
ii. Agreement: For there to be a conspiracy there must be

an agreement between two or more. The merely
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listening to a person’s criminal intent without assenting

to it does not make one a conspirator. The person must
agree, which is an intentional conduct. This could be
inferred from the settings as to where the meeting was
held or the subsequent acts of the accused.
Chain conspiracy is when there are two or more people
involved in the same conspiracy acting to a common
purpose. They are all liable for the acts of each other in
furtherance of this common purpose. STATE v
OTCHERE. The general rule is that in a chain conspiracy Commented [sq77]: This case was the trial of five
accused persons who were alleged, as members of the
United Party in exile, among whom were the first two
the participants are liable for the whole and not just the accused and Obetsebi-Lamptey, to have held meetings in
1961 and 62 in Lomé in the Republic of Togo where it was
part they played agreed to overthrow the Government of Ghana by unlawful
means and also that the last three accused persons
subsequently joined in the said conspiracy. The prosecution
Wheel conspiracy, there is a common conspirator for maintained that in furtherance of the said agreement
Obetsebi Lamptey came to Accra in May 1962, and that the
two or more persons. That conspirator could be attempted assassination of the President at Kulungugu on
the 1st August, 1962, and the series of bomb outrages
described as the center or fulcrum of the conspiracy perpetrated in various parts of Accra thereafter were in
furtherance of the objects of the agreement. HELD: It was
held that a person who joins or participates in the execution
COMMISSIONER OF POLICE v AFARI of a conspiracy which had been previously planned would
be equally as guilty as the planners even though he did not
The appellants were charged and convicted for take part in the formulation of the plan or did not know
when or who originated the conspiracy. So that if the
prosecution proved that the third, fourth and fifth accused
conspiracy to defraud by false pretense. On appeal at persons joined Obetsebi Lamptey in Accra and participated
in the execution of the plans agreed to at Lomé, they would
the SC. The counsel for the appellant argued that there be just as guilty as the original planners of the conspiracy
was no evidence of prior agreement but the evidence of

the conspiracy was that of the substantive crime.
Moreover, since the evidence led was that of the
substantive crime it was bad in law to convict them for
conspiracy.
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Held: the Ghanaian law of conspiracy is wider than the

English law of conspiracy. Thus, it covers also acting with
a common purpose in a concerted manner. From the
evidence of subsequent acts of the appellant it could be
deduced that there was a previous agreement to
defraud the complainant of his money. Hence, the
conviction for conspiracy was good in law.
AZAMETSI v THE REPUBLIC
The appellants were convicted for the conspiring to
murder and the murder of another fisherman in
furtherance of their annual ritual for a bumper harvest.
The first appellant appeals against the conspiracy in that
he did not agree to the murder, he merely stood by and
witnessed it in his house.
Held: The crime of conspiracy consisted in an
agreement or acting together by two or more persons
with a common purpose for or in committing or
abetting a crime whether with or without any previous
concert or deliberation. It was not always easy to prove
agreement by evidence, but it could be inferred from
the conduct of and statements made by the accused
persons. In the present case if the evidence of the first
appellant’s wife that the first appellant was present
during the killing of the deceased and later procured
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other persons to dump the dead body in the sea was

accepted then the presence of the first appellant in the
bathroom where the killing took place, could not be
accidental but was in furtherance of the common
purpose.
KAMBEY v THE REPUBLIC
The appellants set out to harvest dawadawa fruits from
a farm. At the farm their right to harvest fruits from the
farm was challenged by with an arrow. They were
convicted for murder and conspiring to kill.
Held: there was no evidence to show that it was those
people who caused the deaths. Nor was there evidence
that they had set out to harvest the fruits armed with
arrows and bows. Therefore they could not be liable for
having executed a common enterprise. Appeal allowed.
Comment: here the appellant did not set out to act with
the common purpose of killing. They set out to harvest
fruits. Moreover, the prosecution failed to establish that
either of the accused carried the bow and the arrow or
shot the deceased persons.
STATE v BOAHENE.
The accused were charged with conspiracy contrary to
section 23(1) of act 29 to acquire a printer to print
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Ghanaian currency. A nolle prosequi was entered by the

state. The ag initiated fresh proceedings in the court.
Held: the test was whether the parties had a common
purpose and not whether they were acquainted with
each other. Per sowah” Conspiracy consists not merely
in the intention of two or more persons, but also in the
agreement of two or more to do an unlawful act or to
do a lawful act by an unlawful means. To constitute an
indictable conspiracy there must be an agreement
between the conspirators to do some common thing.
Whether they had met each other or not, does not
matter in the slightest degree so long as they are
working for the same common object. They need not
know whether a conspiracy was already in existence.
The test is whether or not there was a community of
design or a common purpose. In order to find out
whether or not there is a common design the court
must not only look at what the accused persons say in
court or elsewhere, but also at what the overt acts are,
that is to say, any act of conspiracy, conferring or
consulting with, advising, persuading, counselling,
commanding or inciting words can be an overt act.”
SCOPE OF LIABILITY
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The general rule is that the acts of a co-conspirator in

furtherance of the conspiracy are binding on the others.
Thus, all persons engaged in a conspiracy are deemed to
have approved all actions thereunder. This is the effect of
sec 24(1) read together with sec 23(1), especially the Commented [sq78]: Where two or more persons are
convicted of conspiracy for the commission or abetment of
phrase “whether without a previous concert or

a
criminal offence, each of them shall, where the criminal
offence is committed, be punished for that
deliberation”. criminal offence, or shall, where the criminal offence is not
committed, be punished as if each had abetted
that criminal offence
For a conspirator to be held liable for the acts of a co-
conspirator, the acts of the co-conspirator must be in
furtherance of the conspiracy. It is not every act or
declaration by a conspirator that will bind his co-
conspirators. Therefore, where one of the participants
takes a different course and goes beyond what has agreed
upon or what was in the contemplation of the parties, he
alone would be liable for those acts – the other Commented [sq79]: The appellants were charged with
conspiracy to steal and to murder. At trial it was determined
participants will not be liable for his unauthorized acts or that there existed a conspiracy to steal from the grandma of
the first appellant, however the killing of the lady was by
for acts that go beyond the scope the adventure. TEYE @ the third appellant and beyond the scope of the agreement.
They were convicted for murder. They appeal from the
conviction. Held: allowing the appeal of the first and second
BARDJO v THE REPUBLIC, ALLAN WILLIAM HODGSON V. defendant. The ca held that the agreed to embark on the
crime of stealing however, they did not in any contemplate
THE REP. the killing of the woman as the means of executing their
plans as such the killing of the woman was the act of the
third appellant distinct from the planned felony.
DEFENCES TO A CHARGE OF CONSPIRACY Commented [sq80]: The accused was charged with other
for conspiracy to possess narcotic contrary to section 56 of
the narcotics drug act. He appeals from his conviction on
There is no defence to a charge of conspiracy. the grounds denial and that there was inadequate evidence
to support his conviction. Held: the court held that the fact
Therefore, a conspirator cannot countermand –

that he accepted to construct the compartment for the
concealment of the drugs in was part of the conspiracy
despite not being part at it conception or not knowing when
countermand is to revoke, cancel or rescind a decision – it was formulated. As such he was liable for the acts of co-
conspirators and thus, was in possession of narcotic
contrary to the act.
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the law holds the view that countermand only avails an

accused with respect to offences to be committed in the
future. However, conspiracy is an offence that is
committed the moment two or more people agree to act
together or act together to commit or abet a crime, so
even if you countermand, it is too late because the
agreement has been reached before you countermanded
– therefore, your liability was well grounded before you
countermanded – thus, your countermand has no effect
in law – you are still liable. Thus, though you may recant
by changing your mind and abandoning the acts necessary
in carrying out the proposed criminal venture, yet you
cannot undo the act of your previous agreement, so you
are still liable for the conspiracy. BOAHENE v THE
REPUBLIC. Commented [sq81]: The appellant were convicted for
conspiring to print fake currencies of Ghana and printing of
fake currencies contrary to sections 23 and 16 of act 29
respectively. The second appellant pleaded the defence of
PUNISHMENT FOR CONSPIRACY countermand. Held: The defence of countermand only
avails with respect to offences to be committed in the
future. Conspiracy was an offence which is committed the
Conspiracy does not merge in the actual or substantive moment two or more people agreed together or acted
together to commit a crime. One of the conspirators may
offence, so a conspirator is liable to be punished for the recant but he could not undo or countermand the act of his
previous agreement. Further, a plea of countermand
substantive offense where the offence is actually implied admission of the original complicity in an act and a
subsequent change of heart.
committed – and where the substantive offence is not

committed, the conspirator is liable to be punished as if
he abetted the commission of the offence – Section 24(1).
JURISDICTION
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Ordinarily, jurisdiction in criminal matters is territorial –

i.e. a court may only try an offence committed within the
jurisdiction. However, where conspiracy is alleged, our
law vests jurisdiction in our courts to try a conspirator
where the person is within the jurisdiction and he agrees
with another person who is outside the jurisdiction for the
commission of or abetment of a crime in the jurisdiction
or outside the jurisdiction. Section 23(2). Commented [sq82]: A person within the jurisdiction of
the Courts can be convicted of conspiracy by agreeing with
another person who is beyond the jurisdiction, for the
commission of abetment of a criminal offence to be
MENSA-BONSU. CONSPIRACY IN TWO COMMON LAW committed by them or either of them, or by any other
person, within or beyond the jurisdiction.
JURISDICTIONS- A COMPARATIVE ANALYSIS. Conspiracy
has been defined as the agreement between two or more
to do an unlawful act or a lawful act in an unlawful
manner. The essence of the offence of conspiracy is in the
unlawful agreement and not whether or not the object of
the agreement was lawful. The offence essentially is the
agreement. It is irrelevant that the parties are unable to
commit the offence or fail in its execution or abandon it.
Agreement has been said to exclude a man and wife, a
man and a company which he is the sole controller, a
person whose conspirator is a minor or has been
acquitted of the charge. Hence, mere spectators are not
conspirators. There must be a positive act for participation
to be established Also the conspirator need not necessary
know each other. What is essential is that they know that
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they are others involved to complete their criminal intent

which is their common design. The test therefore is, “is it
true that to say that the acts of the accused were done in
pursuance of a criminal purpose held in common between
them?”
The offence of conspiracy is that of intention and a
positive act. The mens rea being the intention to agree
and the positive act the promise made against another in
furtherance of the criminal offence i.e. actus contra
actum. A person need not be in the plot from the
beginning to be a conspirator. A person becomes a
conspirator the moment he joins the plot. A person joins
a conspiracy at his own peril. Essence of the offence of
conspiracy is to discourage the persons from committing
the offence and to protect the interest of society since the
combination in a crime makes more likely the commission
of crimes unrelated to the original purpose for which it
was formed. Conspiracy in the two jurisdictions In Ghana
law there are two ways liability arise; agreeing to commit
the substantive offence or agreeing to commit an
inchoate crime. Two limbs of liability; the agreement to
act or acting together with a common purpose. Hence in
Ghana, as soon as the words of agreement is spoken the
offence is committed unlike the us which requires for an
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overt act. Here, the overt act merely substantiates the

offence. The SC held in cop v. afari & addo “ it is rare in
conspiracy cases for there to be direct evidence of the
agreement which is the gist of the crime, this usually has
to be proved by the evidence of subsequent acts done in
concert and so indicating a previous agreement”.
Elements of the offence. a. Agreement:
A man cannot conspire on his own thus for there to be an
agreement there must first be two minds. Hence in blay it
was held that the agreement must be between two
human beings. Hence, the courts refused to hold that
there was a conspiracy when it was shown that the
accused acted in concert with an alleged spirit. However,
it must be noted that what the law requires is person be it
natural or artificial. The issue of husband and wife as one
mind. In the us case of dege, the us SC held that a husband
and wife could not be treated as one person. Why the
common law principle of unified personality of a man and
wife is not applicable in Ghana. In Ghana a married
woman by culture maintains her personality separate
from the husband. Also, there exists the polygynous
marriage system. This system arise question to the
principle equation that 1+1=1. The problem of plurality
of minds in the business settings. In r v. mcdonnell, it was
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held that there could not be plurality of minds’ if a man

and the company of which he is the sole directing mind
stood to be accused. This is because the legal fiction of an
artificial personality is impossible to support the notion
that there is more than one mind.
The rule of two minds calls for consistency. That’s the
charged need to be against one if the other conspirators
are acquitted. The caveat is that they must be tried
together.
Security agency and their plant. The unilateral approach is
that the accused is still liable for the conspiracy since he
had the culpable mind. CONCERT The persons charged
with conspiracy must be proved to have acted with a
common design or concert. As Professor Williams puts it,
"[a] conspiracy is not merely a concurrence of wills, but a
concurrence resulting from an agreement. In due to
complicity to be found acting together amounts to and is
not merely evidence of conspiracy. The problem with the
complicity is basically that the mens rea and actus reus is
difficult to locate. If the mens rea is said to be the
intention to act together why should there be liability if
there is no evidence of such intent? If not then is it an
offence of strict liability. One need not try to infer a
'previous agreement' from acts done in concert. Guilt may
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be established either by proof of a previous agreement, or

by acts done together even without any previous concert
or deliberation. Overt act At Common Law, as under
Ghana law, the offence of conspiracy is complete once the
agreement has been reached. In contrast, in the us there
is the requirement of an overt act. That is an act
constituting the crime itself but representing the
existence of such a conspiracy. Essence of the us overt act
requirement : it is useful to be able to nip a crime in its
bud, the law must be able to distinguish between those
engaged in idle speculation, and those who intend to
implement their plans. Mental element. Conspiracy is not
an offence that can be committed unintentionally. It
requires such a positive act of association that the
requisite mens rea is one of intent.' It has been opined by
some scholars that recklessness should suffice for
conspiracy to commit some offences. It is the intention to
agree that is material. Recklessness as to be to the fact of
entering the agreement but not as to the intention to
agree as one cannot be reckless in intending to agree. It is
for this reason that knowledge of the existence of the
conspiracy must be proved against each participant. The
knowledge could be constructive if the evidence shows
that there was no way a particular person could honestly
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believe that there was no conspiracy. Scope of liability In

conspiracy each conspirator is liable for the acts the co-
conspirator thus, the question which arises is whether a
person can be liable for an act kept secret by other
members of the group or those acts which went beyond
the scope of agreement. Conspiracy could be that of a
wheel or chain. In the former each conspiracy can be
severed whereas in the later the conspirator is liable for
the whole this is because it is deemed that the conspirator
knew that others are involved to ensure the success of
their plot. Vicarious liability Here it implies that a
conspirator is liable for the acts of co-conspirators. Look
at otchere and bossman. It has been held in Teye alias
Bardjo & Ors v. The Republic6 that a co-conspirator is not
liable where any other party goes beyond what was
agreed upon and does an act that is totally different from
what was agreed upon. Objects impossible of
achievement.
There are two schools of thought on this point. One school
holds that if the crime was impossible of commission then
the plot never presented any threat to society. That being
so, the need to protect the society by a resort to the
conspiracy weapon never arose.1 The other school,
representing the traditional position, does not consider
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the objective factor relevant. The only relevant issue is

whether the defendant did intend to combine for the
purposes of committing a crime which, no thanks to him,
was impossible of commission. The prefer in gh is the later
school of thought in that the essence of the offence to
prevent the potting of a crime thus, irrelevant if it is
impossible to be committed. Defences and penalties.
There is no defence to conspiracy. the defence of
abandonment of the plot is no defence as held in otchere.
Here is was held that the accused were liable for the
conspiracy the moment the agreement was conclude.
Aslo, in Boahene, it was held that the defence of
contramand does apply to conspiracy as this is mainly a
defence of a contrary command and conspiracy is crime of
agreement. Neither, does the defence of withdrawal avail
to the accused. However, in the us there is a singular
defence for conspiracy and that is the defence of
withdrawal. Penalty
In Ghana, the penalty is no more at large. It is the same as
for the commission of the substantive offence.5 This is
because, although the provision distinguishes between
the penalty in situations where the substantive offence
has been committed and in situations where it has not
been committed, the difference in real terms is not one of
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substance, Section 24(1) of act 29. The result reached is

that a person who is convicted of conspiracy is liable to
suffer the same penalty except for capital offences. The
rule of the merger in common has been changed thus a
person can be charged for conspiracy and the substantive
of offence as provided in section 24(2) and held in ex parte
ofosu armah.
ATTEMPTS
Attempt in criminal law is distinct from its ordinary
meaning. An attempt here implies
 an act which was not completed before detection or
 one which was completed but failed to achieve its
object.
The mens rea for an attempt and a substantive offence are
same. DUA v THE REPUBLIC The difference lies in the actus Commented [sq83]: The accused was charged and
convicted for the attempted murder of his wife. On appeal
he contended that the jury was wrongly directed by the trial
reus. For there to be an attempt the acts done must have judge. Held: the trial judge erred in his direction. The
appropriate direction was that for a charge of attempted
been such that it was an irrevocable step towards the murder the prosecution must proof an intention to kill and
not necessarily an unlawful inflicted on the jury. Moreover,
the jury could from the evidence presume an intent to kill ,
commission of the offence and that it lends itself to no that is by the nature of the force use the probable and
natural consequence of the accused actions was to kill the
other conclusion. Attempt requires the doing of an overt victim yet he failed. As in the instant despite the non-
direction by misdirection there was an intention to kill
act – thus, an omission cannot be an attempt. inferred from the evidence thus the accused was rightly
convicted.
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Attempts are dealt with under section 18 of ACT 29. Thus Commented [sq84]: A person who attempts to commit a
criminal offence shall not be acquitted on the ground that
the criminal offence could not be committed according to
the main concern here relates to the means or the the intent
(a) by reason of the imperfection or other condition of the
circumstances of use or the circumstances affecting the means, or
(b) by reason of the circumstances under which they are
used, or
object of the crime or the absence of the object of the (c) by reason of the circumstances affecting the person
against whom, or the thing in respect of which the criminal
crime. offence is intended to be committed, or
(d) by reason of the absence of that person or thing
There is no concise definition of attempt under our laws.

At common law, it is often said that the act constituting
attempt must be proximate to the actus reus of the
offence – or that it must be closely connected to the actual
commission of the offence.
HOUGHTON v SMITH: the appellant was arrested and
convicted for attempt to take delivery of stolen goods. The
goods at the time of arrest were no stolen goods since the
principle offenders who stole the goods had been arrested
and it was in the lawful custody of the police. Held: the
appellants appeal is dismissed since the act done was an
attempt to commit an offence only to be interrupted by
circumstances in relation to the thing which the offence
was to be committed. Here reference to the change in
circumstance is when the stolen goods were no longer
stolen goods since it was in the custody of the police. “The
accused must go beyond mere preparation
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In Ghana, it appears that to amount to an attempt, the act

done must have been such as may be regarded as an
irrevocable step toward the commission of the offence
that lends itself to no other interpretation – that is to say
– the point of no return.
IMPOSSIBLE ATTEMPTS
This describes a situation where a person believes he is
committing an offence but unknown to him the act which
is to be the offence is not an offence or crime even when
completed. Eg smuggling a substance under the
assumption it’s cocaine when it is actually talcum powder.
A person may be guilty of attempting to commit an
offence even if the facts are such that the commission of
the offence is impossible – that is what he/she is
Commented [sq85]: : the appellant drop in his deceased
proposing to do is impossible not because of insufficiency mother’s drink cyanide. The quantity was small such that it
was unlikely to kill the mother. He was convicted of
attempted murder. Held: the appellate court held that the
or inefficiency of means, but because it is for some reason conviction was right despite the fact that the amount was
unlikely to kill someone. This is because he intended to end
physically not possible, whatever means one adopts. the life of the murder it is unfortunate that the amount of
poison made it impossible to achieve the aim of his
conduct. Also, the direction by the trial judge that if his
conduct was a step in series of act constituting slow
poisoning then he is guilty of attempted murder was held to
right.
R v. White section 18(C) and (D) , REG V. SHIVPURI Commented [SDQ86]: the appellant attempted to import
illegal drugs. The substance he imported actually turned to
be an harmless substance. Held: the test of objectively
STATE V. MITCHELL: The defendant believing his victim innocent is not applicable in attempt cases dealing with
impossible attempt but rather of relevance is the intent of
was sleeping in a bed in the downstairs room fired into the the person or the guilty mind of the person involved. Hence,
if the person conduct though unlikely to commit the
bed one bullet hit the pillow and another the dresser close intended offence so long as the requisite mens rea is
present he is liable for the attempted offence. Therefore,
shivpuri is liable for the offence of attempting to import
illegal drugs despite it not being illegal drugs.
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by. In fact the victim, unknown to the defendant, had gone

to bed in the upstairs room. Since the defendant had been
a boarder in the other’s house and knew that the latter
customarily slept in the downstairs bedroom, the
defendant’s expectation that his act would result in the
desired killing was an eminently reasonable one . Held: he
was convicted of attempt. His conduct made out a perfect
case of an attempt.
PUNISHMENT FOR ATTEMPTS
In Ghana, a person convicted of an attempt is liable to be
punished to the same degree as if he committed the
substantive crime. Section 18(2). However, a person Commented [sq87]: A person who attempts to commit a
criminal offence commits a criminal offence, and except as
otherwise provided in this Act, is liable to be convicted and
under imprisonment for 3 yrs or more who attempts to punished as if the criminal offence has been completed.
commit murder is liable to suffer death. Section 49. Commented [sq88]: A person who, being under sentence
of imprisonment for three years or more, attempts to
commit murder is liable to suffer death.
Sometimes an act which amounts to an attempt to

commit one crime is at the same time the actus reus of
another crime – for instance, attempted murder may at
the same time be causing grievous bodily harm –
attempted rape may be indecent assault – attempted
robbery may be unlawful entry – attempted arson may be
being on premises for unlawful purpose etc. In such
situations, the convict is liable to be punished either for
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the attempted offence or for the completed offence.

Section 18(3) Commented [sq89]: Where an act amounts to a
complete criminal offence, as defined by a provision of this
Act, and is also an attempt to commit any other criminal
offence, a person who does the act commits a criminal
Finally if there is a defence for the substantive offence the offence and is liable to be convicted and punished under
either provision or under this section
defence is also available for the attempt of that
substantive offence. eg provocation for the attempt of
murder. Section 18 (4) Commented [sq90]: A provision in this Act with respect
to intent, exemption, justification, or extenuation, or any
other matter in the case of an act, shall apply with the
necessary modifications to the case of an attempt to do that
act
PREPARATION
At common law, preparing to commit a crime is not a
crime – so it is said that mere preparatory acts to commit
a crime is not punishable – to be punishable, the act
complained of must be proximate to the actus reus of the
offence in question – so at common law, the task was
establishing whether the act complained of was an
attempt or merely preparatory. However, in Ghana,
preparation is a criminal offence on its own by virtue of
section 19.
Section 19: A person who prepares or supplies, or has in
possession, custody, or control, or in the possession,
custody or control of any other person on behalf of that
person, any instrument, materials, or means, with the
intent that the instruments, materials, or means, may be
used by that person, or by any other person, in
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committing a criminal offence by which life is likely to be

endangered, or a forgery, or a felony, commits a criminal
offence and is liable to punishment in like manner as if
that person had attempted to commit that criminal
offence.
Merely having in your possession or in the possession of
another person on your behalf, such instruments,
materials or means without the requisite mens rea will not
fix one with culpability. The focus of the law is on
instruments, materials or means that cannot innocently
be possessed except with the intention of committing a
crime.
A person who prepares to commit a crime is liable to be
punished as though he attempted to commit a crime
ABETMENT
The crime of abetment is committed when a person
renders assistance to another for the purpose of
committing a crime, and thereby makes a contribution to
the doing of a criminal act. A person who commits the
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crime, that is the principal actor, may have been

supported by many persons who played various roles to
ensure the commission of the crime. these persons cannot
be permitted to escape the grasp of the law thus, the need
to punish them. The import of the rules of accessorial
liability is to ensure that each of without their individual
assistance the principals may never have attempted the
crime.
For a charge of abetment to succeed, the act complained
of must precede or be contemporaneous with the
commission of the offence. COP v. SARPEY & NYAMEKYE Commented [sq91]: The accused was charged with
abetting a conspiracy to steal and the stealing of blouses.
The act which was said to constitute an abetment was
allowing the vehicle carrying the stolen to pass the check
Abetment is governed by Section 20 of Act 29. point unchecked. That is, after the commission of the
offence. HELD: an act constituting abetment of a crime
must precede it or must be done at the very time when the
INSTIGATION offence is committed. Abetment must be contemporaneous
in place, time and circumstance with the commission of the
offence. Sarpey’s conduct although suspicious, did not
The word also refers to “incitement” which involves the amount to abetment
Commented [sq92]: A person who, directly or indirectly,
sowing of criminal ideas in the mind of other. The act instigates, commands, counsels, procures, solicits, or in
any other manner purposely aids, facilities, encourages, or
sowing the ideas may be in the form of whipping up promotes, whether by a personal act or presence or
otherwise, and a person who does an act for the purposes
sentiments leading to the commission of the crime or of aiding, facilitating, encouraging, or promoting the
commission of a criminal offence by any other person,
whether known or unknown, certain, or uncertain,
urging or psychological punishing of another to commit a commits the criminal offence of abetting that criminal
offence, and of abetting the other person in respect of that
crime. Liability is incurred as soon as the particular acts of criminal offence.
instigation is done. It is irrelevant the effect it has on its

target.
R v ASSISTANT RECORDER OF KINGSTON UPON HULL; EX
PARTE MORGAN: The accused incited a seven year old
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boy to commit acts of gross indecency with him. The

assistant public prosecutor released him since the charged
sheet was drawn without the consent of the dpp. In
ordering the mandamus for re-try parker c.j. held as
follows. Held: in the crime of incitement, which is a
common law misdemeanor it matters not that no steps
have been taken toward the commission of the attempt
or if the substantive offence. It matters not, in other words
whether the incitement (instigation) had any effect at all,
it is merely the incitement or the attempting to incite
which constitutes the offence.
R v NKOSIYANA: The accused mooted the assassination of
a political figure to another and offered to raise money for
the purpose and in fact paid part of the deposit to ensure
that the deed would be done. The person with whom he
made all these arrangements was in fact an undercover
agent. He was convicted of incitement and he appealed.
Held: one is guilty of the offence of abetment if he reaches
and seeks to influence the mind of another to the
commission of a crime e.g. by suggestion, proposal,
request, exhortation, gesture, argument, persuasion,
inducement, goading or the aroused of cupidity.
COMMAND
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Command involves giving instructions to another for that

other to commit a crime – it often occurs in the context of
service men – army, police etc.
COUNSEL
Counsel connotes advising, admonishing etc a person to
commit a crime. According to Mensa-Bonsu, with respect
to counseling, unlike instigating, liability is incurred only
when the crime is actually committed according to the
given advice – therefore, in the case of counseling, there
is no liability unless the crime is actually committed. R v
CALHEAM. However, according to Kissi, this view is not Commented [sq93]: The appellant counseled another to
kill someone. The person (zajac) did kill the person whom he
was required to kill. The appellant was convicted for
supported by the Act because under sec 20(3), a person is abetting murder by counseling. She appeals. HELD:
dismissing the appeal. So long as the principal offence is
still liable to be punished for abetment, whether it be committed by the one counseled , and so long as the one
counseled is acting within the scope of his authority or
advice and not in the accidental way or some such similar
counseling or otherwise, even if the offence is not actually then the counselor abets the commission of the crime.
committed – this is especially so, as all acts of

accessoryship have been subsumed under the umbrella
term of abetment.
PROCURE
To procure is to get another to commit a crime –
procurement may take the form of making arrangements
for equipment for the commission of the crime or of hiring
or getting an expert, like a professional assassin, to do the
job – contract killing.
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The act of procurement must have been done with the

intention of securing a crime – thus, where one is asserting
a legal right or charting a legal course, he is within his
rights, and liability does not arise even if it was
foreseeable that others would take advantage of the
situation to commit a crime. REPUBLIC v TEMA DISTRICT
MAGISTRATE GRADE 1; EX PARTE AKOTIAH, R v Commented [sq94]: the applicant was upon an grant of
an ex parte motion which required of them to show cause
why they were not to sign a bond of peace because they
CREAMER intended to install a chief which was opposed by some
persons brought the present application for a declaration
and an order quashing the said order by the magistrate
AIDING court. HELD: one cannot be guilty of procuring the
commission of an offence by embarking upon a course of
conduct which was lawful, even though it may induce a
Aiding involves lending assistance or help to another to breach of the peace. In quashing the order of the magistrate
court the Agyepong J. noted that the action was of the
commit a crime. At common law, the aider was required applicant was in no why lawful and as such even if the said
lawful acts of the applicant would compel someone to
breach the peace they were in no way responsible or said to
to be physically present at the crime scene to lend have procured the said breach of peace
Commented [sq95]: the accused arranged for an
assistance to the commission of the crime before liability abortion to be done on a young lady by a certain mrs.
Harris. The lady died in the course of the abortion. The issue
could arise. However, in modern times, the requirement is whether the accused could be convicted for abetting
manslaughter. Held; A man is guilty of involuntary
of physical prescence is obsolete because of technological manslaughter when he intends an unlawful act and one
likely to do harm to the person and death results which was
neither foreseen nor intended. It is the accident of death
advancement. THAMBIAH v R resulting which makes him guilty of manslaughter as
opposed to some lesser offence such as assault or abortion
as in the present case. thus, since the accused procured the
The principle here is that if a man helps another in abortion which was unlawful and led to the death of the
lady he was liable for abetment of manslaughter.
preparation for crimes of a certain nature with the Commented [sq96]: Appellant was convicted of abetting
another man for whom he opened a bank account under a
intention that the other shall commit crimes of that false name and description, which account was used to
dispose of forged cheques. Held: A man who aids another in
the preparation for a crime of a certain nature with the
nature, he abets those crimes when they come to be intention that the other should commit the crime abets the
crime when it is committed. Hence in the present case the
committed. Also, a person who supplies an instrument appellant opened the account under the false with the
intention that the accused would deposit money through
which is essential to the commission of a crime is held to fraudulent means.
be liable as an abettor.
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NATIONAL COAL BOARD v GAMBLE: The NCB sold a bulk

of quantity of coal. A carrier’s lorry was sent to fetch part
of it. The lorry was loaded with a quantity of coal and the
NCB’s weighbridge clerk (whose task was simply to find
how much coal had been loaded in order to charge for it)
then discovered that the load was in excess of what was
allowed to be carried in the lorry on the highway. At that
point, he could have insisted that the lorry be relieved of
sufficient coal to make it law-abiding. But all he did was to
call the attention of the driver to the overload. The driver
said he would risk it, and the clerk handed him the
weighbridge ticket (which passed ownership of the coal to
the buyer) and allowed him to drive away with his load.
HELD: It was held that the weighbridge operator, and
through the NCB as his employer, became a party to the
offence of driving the lorry when overweight
On another score, it should be noted that the abettor’s
help may be given before or during the commission of the
crime, – examples of help given before the crime include
supplying the tools or materials for the crime; imparting
know-how. Help includes co-operation – e.g. acting as
look-out – the look-out gives warning to the perpetrator if
necessary and his presence is a comfort to the perpetrator
– another example of help is manning a get-away car.
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The abettor need not share the mens rea of the principal
– it is enough if the abettor knows of the principal’s
intentions – that is, the abettor must know that he is
helping with a crime
ENCOURAGE
This connotes moral and psychological support to the
principal that fortifies his resolve to commit the crime. In
this light, a person may be held as an abettor by being
present at the crime scene and applauding the efforts of
the principal without actually rendering assistance. R v
CONEY. However, a person does not become an abettor Commented [sq97]: The accused were seen at the venue
of a prize fight. It was established that some persons in the
merely by failing to prevent an offence – that is to say, it

crowd were encouraging the fight. However, the three
accused were not seen to do anything and there was no
evidence how they got there or how long they stayed. Held:
is no criminal offence to standby, a mere passive spectator one can be held to have wilffuly encouraged the
commission of a crime if he was voluntarily and purposely
present at and witnessing the commission of the crime and
of a crime. R v CLARKSON offers no opposition thereto though he might be reasonably
expected to prevent it and had the power so to do or at
Presence at the time of the commission of the offence fight amounted to abetting despite the fact that they did
not act or utter a word to that effect. Non accidental
would render a person culpable if it is shown – presence however is not conclusive of abetting.
Commented [sq98]: the appellants were convicted of
 that the presence was non-coincidental or accidental

aiding and abetting rape by their fellow soldiers. The
appellants at the time of arriving at the rape scene were in a
drunken state and they stood and watched without doing
– that is, the presence was on purpose, and anything whilst the rape was ongoing. Held: their mere
presence did not give encouragement to the crime. It must
 the presence was intended to lend support to the be shown that they had the intention to encourage and
actually did encourage the perpetrators of the crime.
principal
OBENG v. THE REP: The accused was charged with
abetting other to commit abortion by accompanying her
to the doctor charged with performing the abortion.
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HELD: per the majority: a woman who accompanied a

friend twice to negotiate for abortion is not guilty of
abetting the crime since she was not present when the
abortion itself took place. Minority view( azu crabbe); the
accused’s presence showed that she was an accomplice.
FACILITATE
This connotes easing or making easy the commission of a
crime – for instance, a security guard who purposely
absents himself from post to make it easy for thieves to
raid the premises. For liability to arise, it must be shown
that the person knew that a crime was going to be
committed and he eased the circumstances for the
principal by his act or omission
PROMOTE
You promote the commission of a crime by knowingly
providing the financial or material resources to the
principal to commit the offence.
In all acts of abetment, the abettor must do the act

complained of purposely or for the purpose of securing
the commission of the act of the principal – that is, the
abettor must intentionally do the act – therefore,
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unintentional or negligent acts that tend to render

assistance to the principal would not do
CONSEQUENCES OF ABETMENT
Where the offence abetted is actually committed, the
abettor is deemed to have committed the offence.
SECTION 20(2). Where the offence is not actually Commented [sq99]: A person who abets a criminal
offence shall, if the criminal offence is actually committed in
pursuance of, or during the continuance of, the abetment,
committed, it follows that the abettor is not deemed to be deemed to have committed that criminal
offence.
have committed the offence – but this does not mean that
the abettor escapes liability.
In the case of abetment of murder, a superior officer who
commands a subordinate to kill unlawfully knowing that
the killing will be unlawful, is held in a special light.
A person charged as an abettor is responsible only for
crimes within the contemplated purpose of the crime he
abetted. The abettor is punishable for abetting the
offence he/she intended to abet. SECTION 21(1)(a). So if Commented [sq100]:
A instructs B to assault C and B kills C, A will not be guilty

of abetment of murder but abetment of assault, And if – A
incites B to commit robbery by threats, without violence on
C. B in attempting to commit the robbery, is resisted, and
murders C. Here A commits the criminal offence of
abetting robbery, and not of murder
EFFECT OF SECTION 21(1)(a) AND (b)
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So where a person abets a particular crime or abets a

crime against or in respect of a particular person or thing
and the principal actually commits a different criminal
offence, or commits the criminal offence against or in
respect of a different person or thing (i.e. transferred
intent), or in a manner different from that which was
intended by the abettor, the abettor will not be liable for
abetting the offence that was actually committed except
where –
 the offence actually committed was a probable
consequence of the endeavour to commit the crime
intended, or
 the offence actually committed was substantially the
same as the offence the abettor intended to abet, or
 the offence actually committed was within the scope
of the abetment.
THUS, A incites B to steal a horse. B, in pursuance of the
incitement, gets the horse by false pretences. Here A
commits the criminal offence of abetting the offence
which B has committed Or if A instructs B to kill C by
poisoning him and B chooses instead to strangle C, A will
be inculpated for abetment of murder
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By sec 21(2) a person, who abets a riot or unlawful

assembly with the knowledge that the rioters or unlawful
assemblers intend to use or are likely to use violence, is
liable for any offence committed by any of the rioters or
unlawful assemblers in executing the riot or unlawful
assembly, although the abettor did not intend to abet the
particular offence that was committed aside of the riot or
the unlawful assembly. REGINA v KOFI ANTWI Commented [sq101]: The appellant abetted a riot
although he had knowledge that violence would be used.
Held: anyone who abetted a riot is liable for any violence
used
PUNISHMENT OF ABETMENT
An abettor is liable to be punished in the same way as the
principal where the offence is actually committed.
SECTION 20(2)
Where the offence is not actually committed, the abettor
is also punishable in the same manner as if the offence had
actually been committed. SECTION 20(3)(b)
However, where the offence is not actually committed
and the offence abetted carries the death penalty, the
abettor is liable to suffer imprisonment for life. SECTION
20(3)(a)
If a person, who is within the jurisdiction, abets the doing
of an act beyond the jurisdiction, which act if done in the
jurisdiction would be a criminal offence, that person is
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punishable as if he/she had abetted the criminal offence.

SECTION 20(7)
DEFENCES TO ABETMENT
An abettor is entitled to a defence under the Act, although
his co-abettors or the principal is not entitled to that
defence. SECTION 20(6). In line with this, where the act of Commented [sq102]: An abettor shall have the benefit of
any matter of exception, justification, or extenuation to
which the abettor is entitled under this Act, although the
the principal amounts to no crime, the abettor would be person abetted or any other abettor is not entitled to the
like benefit.
entitled to an acquittal.
There are two possible defences to abetment –
countermand and withdrawal. R v CROFT. However, a
secret decision to withdraw will not do. R v ROOK
OFFENCES AGAINST THE PERSON

These are made of crimes involving physical harm to the
body of a person. They range from attempting to make
unpermitted physical contact with a person, through the
slightest of contacts, through contact of a sexual nature,
up to extinguishing the life of a person.
HOMICIDE
This refers to the killing of a person and it may be lawful
or unlawful. It is lawful if it is justifiable or excusable in law
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or if it is authorized by law. Justifiable killing arises where

for instance, a police officer kills to prevent the
commission of a crime. Authorized killing arises in the
situation where an officer kills in the execution of a death
sentence imposed by a court
Unlawful killing arises where it is actuated by an intention
to kill or it is done recklessly or through gross negligence.
Unlawful homicide are of two (2) types:
 Murder, and
 Manslaughter.
MURDER
Section 46 criminalizes murder and the offender is liable Commented [sq103]: A person who commits murder is
liable to suffer death.
to suffer death. Murder is defined under section 47. In Commented [sq104]: A person who intentionally causes
the death of another person by any unlawful harm
commits murder, unless the murder is reduced to
simple terms, murder is intentional killing through manslaughter by reason of an extreme provocation, or any
other matter of partial excuse, as mentioned in section 52.
unlawful harm.
The elements of murder are the following:
i. There must be a death;
ii. The death must be through harm;
iii. The infliction of the harm must be unlawful;
iv. The accused must have inflicted the harm; and
v. The harm must have been inflicted intentionally with
the intention to kill.
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The mens rea requirement here of intention is very

important because it is the main element that
distinguishes the offence of murder from most forms of
the offence of manslaughter. SERECHI v THE REPUBLIC:
The appellant were employees of the Ashanti Goldfields
LTD. In Obuasi. They 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, clearly to catch a free ride. The appellant
allegedly approached the deceased, beat him up and
consequently, pushed him out of the trucks as it gathered
speed. He was ran over by the train and died as a result.
The appellant was convicted of murder. HELD: there was
sufficient evidence of an intention to cause death and the
infliction of unlawful harm. The essential elements of the
offence of murder are intent to caused death and the
infliction of unlawful harm. Their appeal against a
conviction of murder was dismissed. the essential
ingredients of the offence of murder are the intent to
cause death and the infliction of unlawful harm, and the
one essential ingredient of manslaughter is causing death
by unlawful harm. For a person to be convicted of murder,
the prosecution must prove, beyond reasonable doubt,
each of the essential ingredients of the offence of murder.
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Where the prosecution is only able to prove that the death

was caused by an unlawful harm without proving the
intent to cause death, the charge for murder fails.
The actus reus of murder – the infliction of unlawful harm
resulting in death – on the face of it appears a simple
requirement, but in practice it presents real evidential
difficulties. This is especially so where the body of the
victim is not found.
Unlawful Harm
Commented [sq105]: “harm” means a bodily hurt,
Harm is defined by section 1 as bodily hurt, disease, or disease, or disorder whether permanent or temporary
disorder, whether permanent or temporary. Unlawful

harm is defined by Section 76 as harm which is caused Commented [sq106]: Harm is unlawful which is
intentionally or negligently caused without any of the
justifications
intentionally or negligently, and without any lawful mentioned in Chapter One of this Part.
justification or excuse.
Intention to Cause Death
This is same as intent as encapsulated under Section 11.
Motive is irrelevant here.
AWEDAM v THE REPUBLIC
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The accused run the deceased done after the deceased

had testified against his friend in a court. Prior to killing of
the deceased, the accused had threatened to teach the
deceased a lesson. The prosecutor in his case to the court
argued that the accused had a motive for killing the
deceased as such should be held liable for his death.
Accused pleaded the defence of accident. Held: The law
did not as a rule require proof of motive as an essential
element in a crime. The intent to kill must therefore be
discovered from the appellant’s acts and conduct during
the events that took place at the time the deceased was
knocked down. Consequently, when in the instant case of
a murder charge, it became necessary to prove motive, it
was obligatory on the trial judge in his summing-up to
direct in substance that notwithstanding the proof of
threats of death by the appellant on 2 February, the jury
should be satisfied that the conduct of the appellant at the
material time of the killing of the deceased on 4 February
Commented [sq107]: There had been a fight between
showed an intent to kill. the appellant and the deceased following a quarrel between
the appellant and a group of boys, including the deceased.
And that after the appellant and the deceased had been
The mere fact that the killing was violent in nature does separated and the deceased and his friends were walking
away from the scene of the fight, the appellant went to his
not mean the accused had the intention to kill. So it is not house which was nearby, picked a knife, chased the boys
until he caught up with the deceased and stabbed him in
the chest resulting in his death. The appellant argued that
murder merely because the accused employed violent he did the stabbing under self-defence. HELD: the court per
the majority view held that the prosecution had been
means in killing the victim. In all, there must be proof of successful in proving that the accused had the intention to
kill the deceased. Also, this was not a case of self defence
because the deceased was not armed at the time of the
intention to kill. BOAKYE v THE REPUBLIC, SERECHI: It was attack and the appellant’s life was under no danger to
warrant him the use of force.
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noted in Serechi, that in the particular circumstances of

the case the learned judge should have directed the jury
that under section 11(3) they should presume, from the
nature of the harm, that the appellants intended that it
should cause the death of the deceased, unless there was
evidence from the appellants which showed that they
believed that the said harm would not cause or contribute
to cause his death. Since no such evidence was led by or
for the appellants which could rebut that presumption,
the proper direction the judge should have given is that
the jury should presume intent to kill as a matter of law
from the nature, manner and circumstances of the harm.
An intention to kill may also be inferred from the nature
of the instrument or weapon employed in the killing.
SENE v THE REPUBLIC: whilst the first appellant was
engaged in an unlawful fist fight with the deceased the
second appellant felled the deceased with a stone he
threw at him and that the first appellant continued
punching the deceased even when the deceased was on
the ground. The deceased subsequently died from
injuries he sustained in the fight. HELD: the one
important factor which distinguished the case of murder
from manslaughter was intention. The element of intent
in a homicide resulting from a fight was determined by
considering whether from the circumstances it could be
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said that the person who killed had the intention to

cause death as distinct from a mere intention to fight.
Such an intention might be inferred from the instrument
or weapon used in the killing or the manner in which the
harm which resulted was inflicted. It should not, as was
in this case, simply be inferred from a consideration of
who began the fight
Where a person does an act in good faith, for the purposes
of medical or surgical treatment, an intent to cause death
shall not be presumed from the fact that the act was or
appeared likely to cause death. SECTION 67(1), Commented [sq108]: Where a person does an act in
good faith, for the purposes of medical or surgical
treatment, an
intent to cause death shall not be presumed from the fact
Because not all killings by unlawful harm is murder, it is that the act was or appeared likely to have
caused death.
incumbent on the trial judge to direct the jury also on
manslaughter. IDDRISU GONJA v THE STATE. AKOM v THE Commented [sq109]: the accused inflicted a blow with a
dagger on the deceased when trying to escape from his
grips after he was caught stealing palm wine. He was
STATE: the accued killed his aunt by slicing her throat with convicted for murder. He appeals.
HELD: allowing the appeal. According to the definitions of
a flick knife. He pleaded as his defence that he mistook her murder and manslaughter as contained in sections 47 and
51 respectively of the Criminal Code, 1960 (Act 29),
manslaughter is homicide caused by unlawful harm, that is
as the person who had attacked him. In directing the jury harm intentionally inflicted, whereas murder is death
caused intentionally by harm, intentionally inflicted. The
the trial judge non-directed by misdirection that if the judge in directing the jury should have drawn a clear
distinction between intent to cause harm which if found to
unlawful harm lead to the death of the person then the exist will make the harm unlawful and intent that the
unlawful harm so caused should also cause death. The
summing-up and the final direction to the jury sinned
accused is guilty of murder. Held: allowing the appeal. , against this principle, because if the jury had been directed
that if they were satisfied that the appellant intended only
not every unlawful act of an accused which results in to cause bodily harm they should return a verdict of
manslaughter instead of murder, they would certainly have
done. Thus when the intent with which an act is done is
death is murder, unless there is clear evidence which simply to cause harm, death which may result from that
harm is manslaughter only, and not murder. But if harm is
shows that the accused also intended death to result from inflicted intentionally, i.e. unlawful harm is inflicted with a
further intent that unlawful harm should cause death, the
the unlawful harm or the circumstances are such that a death which may result, will be murder
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reasonable man would realise that his act might cause

serious and fatal bodily hurt, and the degree of the
probability or possibility of that type of harm resulting in
death was apparent to him but he is indifferent or reckless
as to the result. Where the harm, though unlawful, was
not done negligently or intentionally but resulted in death
at least it can be manslaughter only. Clear evidence that
the death of the deceased resulted from the acts of the
accused
MANSLAUGHTER
SECTION 50 states that manslaughter is a first degree
felony and as such does not carry a death sentence.
Section 296(1) of act 30 sentence ranges from life
imprisonment to any lesser term.
Section 51 defines manslaughter as follows: A person who
causes the death of another person by an unlawful harm
commits manslaughter, but if the harm causing the death
is caused by negligence that person has not committed
manslaughter unless the negligence amount to a reckless
disregard for human life. There are three types of
manslaughter.
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a. intentional unlawful killing reduced to manslaughter

by extenuating circumstances or excuse – for
instance, where a person, under extreme
provocation, intentionally kills another
b. unintentional unlawful killing.
c. killing resulting from gross negligence – i.e.
negligence that amounts to a reckless disregard for
human life – otherwise known as involuntary
manslaughter
Commented [sq110]: A person who intentionally causes

the death of another person by an unlawful harm commits
murder, unless the murder is reduced to manslaughter by
Unlawful Intentional Killing Reduced to Manslaughter reason of an extreme provocation, or any other matter of
partial excuse, as is mentioned in section 52.
This is seen under section 47. These circumstances as seen Commented [sq111]: 52. Intentional murder reduced to
manslaughter
A person who intentionally causes the death of another
under SECTION 52 are as follows: person by unlawful harm commits
manslaughter, and not murder or attempted murder, if that
person
a. deprivation of the power of self-control by extreme (a) was deprived of the power of self-control by an extreme
provocation given by the other
provocation given by the deceased under section person as is mentioned in sections 53, 54, 55 and 56; or
(b) was justified in causing harm to the other person, and, in
causing harm in excess of the harm
52(a). which that person was justified in causing, that person
acted from a terror of immediate death
b. justifiable causing of excess harm resulting from such or grievous harm that in fact deprived that person for the
time being of the power of
self-control; or
terror of immediate death or grievous harm as in fact (c) in causing the death, acted in the belief, in good faith
deprived the accused of the power of self-control –

and on reasonable grounds, of being
under a legal duty to cause the death or to do the act which
that person did; or
that is – manslaughter as a result of excessive use of (d) being a woman she caused the death of a child, which is
a child under the age of twelve
months, at a time when the balance of her mind was
otherwise justified force under section 52(b). The disturbed because she had not fully
recovered from the effect of giving birth to the child or by
principle is that a person who is permitted to use reason of the effect of lactation
consequent on the birth of the child.
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force cannot exceed the bounds of such force without

incurring liability – e.g. where a person under attack
responds to that attack with more ferocity than the
situation demands – except in the situation just
described. KONTOR v THE REPUBLIC. Commented [sq112]: The appellant and the deceased
were cousins who lived in the same house. Appellant
stabbed the deceased who was the aggressor and the
c. acting in the belief, in good faith and on reasonable appellant uttered remorse words when the incident
happened. During the trial, the judge failed to direct the jury
grounds, that one is under a legal duty to cause death on manslaughter as an alternative verdict given the
circumstances of the attack. HELD: In allowing the appeal
The appellant was justified in using force to defend himself,
or to do the act under section 52(c). even though he exceeded the limit permissible given the
circumstances. Therefore, the judge should have directed
d. killing in circumstances induced by the effects of the jury on manslaughter.
childbirth or lactational psychosis – a woman, causing

the death of her child of less than 12 months old, at a
time when the balance of her mind was disturbed by
reason of her not having fully recovered from the
effect of giving birth to the child or by reason of the
effect of lactation consequent upon the birth of the
child under section 52(d)
The time limitation of 12 months is based on the
presumption that within 12 months of delivery, any
such psychosis would have manifested itself. R v
CHIMA Commented [sq113]: : accused killed her twin babies
hours after she delivered them because they were
considered an abomination. Her conviction of murder was
substituted by one of manslaughter..
Killing resulting from negligence that amounts to a
reckless disregard for human life – Involuntary
Manslaughter
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There are degrees of negligence thus, not every

negligence which leads to the death of another would
amount to manslaughter. In criminal law, we have, at
least, two forms of negligence:
i. negligence simpliciter, which is the province of
section 12, which provides:
A person causes an event
negligently, where, without
intending to cause the event, he
causes it by a voluntary act, done
without the skill and care that are
reasonably necessary under the
circumstances
ii. negligence amounting to a reckless disregard for
human life, which is the province of sec 51. Commented [sq114]: A person who causes the death of
another person by an unlawful harm commits
manslaughter, but if
the harm causing the death is caused by negligence that
Thus, for negligent killing to amount to manslaughter, it person has not committed manslaughter unless
the negligence amount to a reckless disregard for human
must be of a higher degree than the sec 12 form of life.
negligence. It must amount to a reckless disregard for

human life. STATE v TSIBA Commented [sq115]: the accused shot another hunter
believing him to be an animal after making all the noise
required to ascertain if the object to be shot at is an animal.
HELD: He was held not be liable for manslaughter as his
Reckless disregard for human life may be comstituted in conduct in no way amount to reckless disregard for human
life.
one of two ways:
 gross inadvertence that causes injury; and
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 acts done by professionals without the necessary

skill required under those particular circumstances.
And recklessness here is one of two denotations:
 either doing an act which amounts to the taking of
unjustified risk, i.e. you foresee there is risk of the
consequence following but you unreasonably decide
to take the risk, or
 you engage in conduct which involves the taking of
unjustified risk even though the actor does not know
of the risk.
In order to inculpate the accused, the prosecution must
show:
 that even though the accused foresaw the
consequence of his conduct as probable or likely, he
pursued his conduct with the knowledge of the risks
involved though without the desire that that
consequence should ensue, and
 that a reasonable man having foresight would not
have taken the risks of such consequence.
The test is – what was the foreseeable consequence of
the act and not what the actual result turned out to be.
As such, conduct that appears harmless but which
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subsequently results in death, would not be held to be

reckless merely because death has resulted therefrom.All
in all, it must be negligence connoting a scant respect for
the value of human life, and not merely carelessness.
AKERELE v R, ADOMAKO v THE REPUBLIC THE STATE v Commented [sq116]: the appellant a medical doctor
appeals from his conviction of manslaughter. He
administered an overdose drugs to children leading to their
KWAKU NKYI: the accused was reported as being a good death. On appeal the solicitor general argued that so long as
the consequence of the accused act is death then it is
and well-behaved student nurse at the Central Hospital in manslaughter. Held: the court held, rejecting the contention
of the S.G., for death to result into manslaughter then the
said death must have resulted from criminal negligence and
Kumasi. He was called by a desperate parent to treat a sick not just any negligence. The court in upholding the
conviction held that the death of the children from the
child and he agreed to do so. He took with him a syringe evidence
Commented [sq117]: The appellant was an anesthetic.
and a drug, which he thought was mepacrine, but was in He failed during an operation to noticed that the patient
had stopped breathing due to a disconnect of the tube
fact, arsenic (which was identical in colour to mepacrine). connected to his wind pipe resulting in his death. He
appealed against his conviction of manslaughter. HELD: The
The accused injected the child with the arsenic. The child’s court in dismissing the appeal held that the appellant action
amount to gross negligent as he failed to advert his action
to the sole duty of ensuring that the patient was breathing.
condition took a turn for the worse and he died not long
after. The cause of death was established to be acute
arsenic poisoning. HELD: Apaloo J held that, ‘the fact that
the accused was negligent is plain enough but I cannot
find on the evidence that such negligence was gross or
amounts to a reckless disregard for human life. At least in
one sense at any rate, the accused in responding to…the
invitation and proceeding [to the house where the child
was] with a view to attending to [him] showed anxious
regard for human life. In my judgment, it would not be
right to hold that the accused’s negligence amounts to a
reckless disregard for human life simply because possibly
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out of inadvertence or want of care, he mistook the drug

that he intended to administer to the sick child.’
MANSLAUGHTHER IN CASES OF CAR ACCIDENTS
In the case of manslaughter in connection with driving of
an automobile, the driving must not only be reckless – it
must be of a nature or manner so gross and outrageous as
to demonstrate reckless and complete disregard for
human life.
MAHAMA v THE STATE
The appellant ran over a child after his brakes and steering
wheel failed him on the highway. At the time, he was not
on a high speed. He was convicted for manslaughter. Held:
The court per ollenu j.s.c. in allowing the appeal held as
follows: for an accused person to be guilty of
manslaughter in connection with the driving of a motor
vehicle there must be evidence of acts of omissions which
in law can amount to the high degree of recklessness
which shows gross disregard for human life. The driving
must not only be reckless, it must be of a nature or
manner so gross and outrageous as to demonstrate
reckless and complete disregard for human life.
ESSEL v THE STATE
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the appellant, who was driving a five ton Bedford truck

along the Accra-Winneba Road in the direction of
Winneba did not slow down at a “T” junction where
people were standing but maintained the same speed and
attempted to overtake the vehicle in front, causing a
collision and resulting in the death of a bystander. HELD:
the appellant’s conduct amounted to a reckless disregard
for human life since special care is called for at a “T”
junction even when there are no by-standers. The
evidence, including the appellant’s own version of the
accident, amply supports the prosecution’s case of
negligence amounting to a reckless disregard of human
life
GENOCIDE
Genocide is governed by section 49A. Commented [sq118]: (1) A person who commits
genocide is liable on conviction to be sentenced to death.
(2) A person commits genocide where, with intent to
destroy, in whole or in part, any national,
SUICIDE ethical, racial or religious group, that person
(a) kills members of the group;
Suicide, is self-murder – that is, a person deliberately (b) causes serious bodily or mental harm to members of the
group;
(c) deliberately inflicts on the group conditions of life
putting an end to his/her own existence. The state punish calculated to bring its physical destruction
in whole or in part;
persons who attempt suicide but are unsuccessful (d) imposes measures intended to prevent births within the
group;
because no man has the power to destroy life – not even

one’s own life
The focus of the offence of suicide are
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 the one who unsuccessfully attempts to kill himself

(attemptor of suicide), and
 the one who lends assistance to another in that
other’s unsuccessful or successful attempt to kill
himself (abettor of suicide)
It is governed by Section 57 of Act 29 Commented [sq119]: (1) A person who abets the
commission of a suicide commits a first degree felony
whether or not the
suicide is actually committed.
R v CROFT (2) A person who attempts to commit suicide commits a
misdemeanour.
two persons entered into pact to commit suicide. Both of

them attempted suicide on one day but one changed his
mind and left the scene to seek help. In his absence his
partner succeeded in killing herself. Held: that he was an
abettor wince his acts made him an accessory before the
fact to suicide.
Mcshane v. R.
The appellant inherited from a grandma properties in
which the mother had a life interest in the property. The
mother was sick and the appellant arranged for the
mother to commit suicide. The attempt failed and she was
convicted for attempting and procuring and counseling
other to commit suicide. Held: the offence did not require
that the suicide should have been committed in the
pursuance of the abetment. Appeal dismissed.
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CHILD AS AN OBJECT OF HOMICIDE

The offences of murder and manslaughter can only be
committed in respect of a person. A person is one that has
been fully brought forth and not living within the body of
another. In respect of a child victim, the accused cannot
be held for murder or manslaughter if the child is not a
person – thT is a child in the womb of her mother.
According to William Blackstone, to kill a child in its
mother’s womb, is now no murder, but a great misprision:
but if the child be born alive, and dieth by reason of the
potion or bruises it received in the womb, it seems, by the
better opinion, to be murder in such as administered or
gave them.
The question then is – at what point exactly does a fetus
become a person as to render its killing murder or
manslaughter and not abortion? Section 66(1) of Act 29 Commented [sq120]: In order that a child may be
considered a person for the purposes of murder or
manslaughter to
answers this. This means that even if the child is vagitus cause its death, it is necessary that, before its death, the
child should have been completely brought forth
uterinus – crying in the uterus or vagitus vaginalis – crying alive from the body of the mother.
with its head still in the vagina, it cannot be the object of

homicide – because it is still in the body of the mother
hence not a person.
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However, by section 66(2), the child becomes a person

when it is completely brought forth alive from the body of
the mother even if –
 the child has not breathed, or
 its blood circulation has not commenced and is still
dependent on the mother’s blood circulation, or
 it is still attached to the mother by the umbilical cord
The next question is: at what point should the harm be
caused to render the killing of the child murder or
manslaughter? In other words, should the accused, to be
liable, cause the harm to the child before or after the child Commented [sq121]: It is murder or manslaughter, to
cause death to happen to a child after it becomes a person,
is born? By section 66(3), the accused may be liable for within
the meaning of this section, by means of harm caused to it
murder or manslaughter whether the harm was caused to before it became a person.
Commented [sq122]: the Respondent stabbed his
the child before or after it was brought forth alive girlfriend in the abdomen, knowing her to be 5 months
pregnant with his child. She received medical attention in
hospital where a cut in the wall of the uterus was found and
The law does not concern itself with when the harm was sewn up. The fetus was mistakenly believed to be uninjured.
The stab to the uterus caused the mother to give birth to a
inflicted – rather, the concern is the time of death. Thus,

grossly premature girl, who received exemplary medical
care but survived for only 120 days. The accused was
charged with murder. The trial court held a submission of no
if you cause unlawful harm to a child before it is born, you case. The AG referred a question of whether injury caused
to a foetus in the utero could form the basis of a charge of
murder or manslaughter. Held: the court in holding in the
will be guilty of murder or manslaughter, as the case may affirmative held as follows: that in law the fetus is treated as
be, if the child dies after it is born. ATTORNEY GENERAL’S

part of the mother until it has a separate existence of its
own. Thus, to cause injury to the fetus is just as unlawful as
any assault upon any other part of the mother. Therefore
REFERENCE (NO. 3 OF 1994), R v WEST such unlawful harm could form the basis for murder.
Commented [sq123]: where an attempted abortion led
to premature delivery and death of the child, it was held
Section 60. Causing harm to child at birth that if with the intention of causing an abortion a person
does an act which causes the child to be born earlier than
the natural time and in a state much less capable of living,
and it later dies in consequence of its exposure, the person
who put the child in that situation is guilty of murder,
notwithstanding the possibility of something being done to
prevent the death.
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A person who intentionally and unlawfully causes harm to

a living child during the time of its birth commits a second
degree felony.
61. Explanation as to causing harm to child at birth
1) Where harm is caused to a child during the time of its
birth, or where, on the discovery of the concealed
body of the child, harm is found to have been caused
to it, the harm shall be presumed to have been caused
to the child before its death.
2) The time of birth includes the whole period from the
commencement of labour until the time when the
child so becomes a person that it may be murder or
manslaughter to cause its death.
ABORTION OR MISCARRIAGE
In medical science abortion is a term used to describe the
event of the expelling of the developing ovum before the
twelfth week of pregnancy; and miscarriage applies to a
situation where the expulsion takes place between the
twelfth and twenty-eighth week of pregnancy.
In Ghana, abortion or miscarriage is the premature
expulsion or removal of conception from the uterus or
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womb before the period of gestation is completed.

SECTION 58(4). Commented [sq124]: For the purposes of this section,
“abortion or miscarriage” means the premature expulsion
or removal of conception from the uterus or womb before
the period of gestation is completed
UNLAWFUL ABORTION
A person who intentionally and unlawfully causes
abortion or miscarriage commits a second degree felony.
Section 58(3). The law does not make the actual abortion Commented [sq125]: A person who intentionally and
unlawfully causes abortion or miscarriage commits a second
alone a crime – the crime also consists in an act done with

degree felony.
intent to procure or cause an abortion.

The offence covers two cases or situations
 first, where a pregnant woman uses any means
with intent to procure her own miscarriage - sec
58(1)(a) – the actus reus here consists in 1)
administering a drug, poison, noxious substance
or instrument or any other means on oneself, or
2) consenting to the administration by another of
a drug, poison, noxious substance or instrument
or any other means on oneself.
 the mens rea consists in the doing of any of the
prohibited acts with the intent to cause a
premature expulsion of a fetus from the womb.
 the second situation is where anyone else
unlawfully uses means, with intent to procure an
abortion or miscarriage – sec 58(1)(b)
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 inducing a woman to cause an abortion is

an offence,
 inducing a woman to consent to causing an
abortion is an offence,
 abetting a woman to cause an abortion is
an offence,
 attempting to cause abortion is an offence
- OBENG v THE REPUBLIC, Commented [sq126]: The appellant administered on one
mensa drugs which was to abort her child. Mensah was
accompanied by her friend to the appellant’s house after
 supplying or procuring any item or trying to dissuade her from the act. However, the abortion
was incomplete hence he was convicted for attempting to
implement or drug knowing that it is cause abortion. He appeals Held: dismissing the appeal.
Held: that mensa friend was not an accomplice. It is the
duty of the prosecution to establish, first, the intent to
intended to be used to cause abortion is an cause miscarriage and secondly, the act or means used in
furtherance of that intent. If the act or means employed
offence. does result in the termination of pregnancy, then the
prisoner is guilty of causing abortion. If it is incapable of
causing abortion or did not in fact result in miscarriage, then
The offence under sec 58(1)(b)(i) is committed where the the prisoner will only be guilty of an attempt.
effort has been made for that purpose even if the mother
is not pregnant – that is – it is immaterial that the woman
is not in fact pregnant R v TITLEY. Commented [sq127]:
The drug or noxious substance administered to cause the

abortion or miscarriage need not be poisonous – it can be
any matter that is ingested or administered for the
prohibited purpose R v HOLLIS. Commented [sq128]:
Lawful Abortion
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For abortion to be lawful, the law specifies who may

commit it, the circumstances under which it may be
committed and the location where it may be committed.
Thus, by section 58(2) abortion is lawful if the person
committing it is a registered medical practitioner
specializing in gyneacology or any other registered
medical practitioner in a Government Hospital or a
registered private hospital or clinic, or in a place approved
by the Minister under an L.I. under any of the following
circumstances:
 where the pregnancy is the result of a crime –
section 58(2)(a) – the caveat here is that it must
be requested by the victim or her next of kin or
the person in loco parentis – read together with
section 42(d), this provision suggests that a girl
under 18 may be forced to undergo an abortion if
her parents so desire
 where the continuance of the pregnancy would
result in injury to the pregnant woman or would
involve risk to her life – section 58(2)(b) – the
consideration here, as Glanville Williams puts it,
appears to be this: the woman is a developed
human being, sensitive to pain and anxiety. She is
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established in the affections of her family, and

upon her the welfare of other children and of a
husband may depend. Thus, it is far more
important to consider her life and health than
that of a fetus, representing only a child-to-be,
which has not been fully formed, cannot feel pain,
cannot live outside the womb, and has not
entered the human community – the caveat here
is that the woman must consent to it, or if she
lacks the capacity to consent, her guardian or next
of kin must consent to the abortion -
 where there is a substantial risk that if the child
were born, it may suffer from, or later develop, a
serious physical abnormality or disease – sec
58(2)(c) – is this not suggestive of eugenics, i.e.
that abortion may lead to the betterment of
man’s genetic inheritance? Or is it a consideration
for the parents of the would be abnormal child so
they would not be blighted by having to rear a
grossly defective or deformed child? Or is it a
consideration of the tax payer’s money that
would be spent on it in special health care and
educational institutions? It should be noted that
the mere carrying of undesirable genes by the
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would be child will not suffice – the abnormality

or disease must be a serious one
 it should also be noted that any act which is done
in good faith and without negligence, for the
purposes of medical or surgical treatment of a
pregnant woman is justifiable, although it causes
or is intended to cause abortion or miscarriage, or
premature delivery, or the death of the child –
section 67(2)
The question arises as to whether the lawful abortion
should be carried out entirely by the registered medical
practitioner from start to finish or whether a nurse could
carry out the process under the instructions of the
registered medical practitioner. This was the subject of Commented [sq129]: the defendant issued a circular that
if a medical doctor instigated an abortion and the nurse
dispute in Royal College of Nursing of United Kingdom v. carried it to its fruition then the nurse does not commit the
crime of abortion. The plaintiff contended this was wwrong
Dep’t of Health & Social Security. and sought a declaration as against the defendant to that
effect. the Department of Health and Social Security
appealed against a declaration by the Court of Appeal that
acts carried out by midwives and nurses in performing the
termination of pregnancies contravened the Offences
against the Person Act 1861 s 58 because they were not acts
of a 'registered medical practitioner' within the Abortion Act
CONCEALMENT OF BODY OF CHILD AT BIRTH 1967 s 1(1) Held: the policy of the Act was to broaden the
grounds on which abortions might be lawfully obtained.
Section 1(3) provided that treatment should take place in
It is an offence for any person to conceal the body of a ordinary hospitals except in cases of dire emergency, which
indicated that Parliament contemplated that it should be
child who has been brought forth, whether such child was undertaken as a team effort. In the light of this, s 1(1)
appeared to extend its protection to all those who played a
born alive or stillborn, with the intent to conceal the fact part in the termination, the requirement being that a
registered medical practitioner (a doctor) should accept
responsibility for all stages of the treatment, decide what
of its birth, existence, or death, or the manner or cause of method should be used, and perform all the acts which, in
accordance with accepted medical practice, should be done
only by qualified medical practitioners. The appeal would be
allowed. Thus, the process should with the guidance of the
medical practitioner.
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its death. SECTION 62(1). This is not a strict liability Commented [sq130]: A person who conceals the body of
a child, whether the child was born alive or not, with intent
to
offence. conceal the fact of its birth, existence or death, or the
manner or cause of its death, commits a
misdemeanour.
The mens rea is the intention to conceal the fact of birth,
existence, or death, or the manner or cause of the death.
By sec 62(2) the offence does not apply to:
 a child of less than 6 mths growth before its birth -
This means that one may only be guilty of the offence
if the child was more than six months old in the
mother’s womb before its birth;
 the case of intent to conceal the birth, existence or
death of the child, or the manner or cause of its
death, from a particular person – as the illustration
goes – a woman conceals from her father or mother
the body of her child. She has not committed a
concealment of birth unless she intended to conceal it
from persons generally – There must be an intention
to conceal the birth, existence, or death of a child
from the whole world, other than the persons who
abetted or consented to the concealment – so it must
be shown that there was an intention to conceal the
body from persons generally, except persons who
abetted or consented to the concealment – as the
illustration goes – a woman conceals the body of her
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child from all persons except a nurse who helped in

the concealment. The woman committed a
concealment of birth although she did not conceal it
from her accomplice.
Section 62 must be read in light with Section 63. DONKOR Commented [sq131]: Explanation as to concealment of
body of child
(1) A secret disposition of the body of a child, whether it is
v THE REPUBLIC intended to be permanent or not, may be a concealment.
(2) The abandonment of the body of a child in a public place
may be a concealment, if the body is
abandoned for the purpose of concealing the fact of its birth
or existence.
Commented [sq132]: the Appellant, an 18 year old girl
NON FATAL OFFENCES became pregnant by a man she claimed to be her boyfriend.
There was some interference with the pregnancy by this
boyfriend. As a result, the baby was expelled and it was
found in a public latrine
The Appellant explained that she went to the latrine and
there, something dropped from her after which she started
SEXUAL OFFENCES bleeding. She became frightened so she decided to walk to
a friend’s house with a view of informing her of what had
These are offences covering all acts with sexual happened. The trial magistrate found her guilty of the
offence of concealment. HELD: the offence of concealment
of the body of a child under section 62 of Act 29 was not
connotations, which are either without the consent of the one of strict or absolute liability. To succeed, the
prosecution must prove: (i) particulars which fall within
other party, or with the consent of the other party but either subsection (1) or (2) of section 63, (ii) the fact that
the child was of six months’ growth before birth or above
and (iii) that the intention was to conceal the child’s birth,
considered inimical to public health or public morality, death or existence from the whole world save persons who
were accomplices. whether a particular disposition or
engaged in for pleasure, gratification or to obtain a abandonment is intended t be secret is a question of fact,
because the offence is not that of strict liability
commercial benefit. These include: rape, defilement,
sodomy, bestiality, incest, pimping etc.
RAPE
In Ghana the offence of rape is a first degree felony
carrying a sentence of not less than five years and not
more than twenty-five years – Section 97 Commented [sq133]: A person who commits rape
commits a first degree felony and is liable on conviction to a
term of
imprisonment of not less than five years and not more than
twenty-five years.
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By section 98, “rape is the carnal knowledge of a female

of sixteen years or above without her consent. The victim
of rape can only be a female who is 16 years or above.
Then again, a man cannot be the victim of rape – indeed,
a man cannot even be raped by another man. And a
woman cannot be the perpetrator of rape – this a function
of the legal definition of rape in terms of the insistence on
carnal knowledge – this formulation excludes women
perpetrators since a woman does not have the natural
ability penetrate an orifice with her genitalia. On another
score, carnal knowledge in the definition of rape speaks of
penile penetration per vaginam – that is, through or by
way of the vagina. Any other mode of penile penetration
does not amount to rape.
Commented [sq134]: “carnal knowledge is the physical
QUEEN v PAPADIMITROPULOUS, R v LINEKAR act of penetration it is the consent to that which is the
question. Such consent demands a perception as to what is
about to take place, as to the identity of the man and the
R v FLATTERY character of what he is doing. Once the consent is
comprehending and actual the inducing causes cannot
destroy its reality and leave the man guilty of rape.”
The accused had sexual intercourse with the complainant Commented [sq135]: the accused had intercourse with a
under the pretense of administering medical treatment prostitute on agreement of making a payment for the sex.
He failed to pay and was convicted of rape. Held: that the
action of the accused did not amount to rape as the act
for bout of fits. Held: that the action of the accused agreed to was what occurred and nothing less. He only
failed to keep his side of the bargain
amount to rape since what he did was substantially
different from what the victim consented to. She
consented to being treated medically and not to the
accused having sexual intercourse with her.
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KAITAMAKI v R,
The accused had sexual intercourse with woman. During
the intercourse he noticed that the lady was longer
consenting however he persisted. Held: on appeal he
dismissing the appeal the court held speaking through lord
scarman that the act of sexual intercourse is a continuing
act which ends only in withdrawal. At the moment that
she withdrew the consent the rest of the sex was rape.
,
The requirement of penetration is merely an enquiry as to
whether any part of the penis went past the lips of the
vagina – so even if only the small tip of the penis entered
the vagina, the accused would still be guilty of rape.
Article 99. The Supreme Court, per Dotse JSC defined Commented [sq136]: Where, on the trial of a person for
a criminal offence punishable under this Act, it is necessary
to
carnal knowledge in GLIGA & ATISO v THE REPUBLIC in the prove carnal knowledge or unnatural carnal knowledge, the
carnal knowledge or unnatural carnal
following words, “Carnal knowledge is the penetration of knowledge is complete on proof of the least degree of
penetration.
a woman’s vagina by a man’s penis. It does not really

matter how deep or however little the penis went into the
vagina. So long as there was some penetration beyond
what is known as brush work, penetration would be
deemed to have occurred and carnal knowledge taken to
have been completed.”
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Also, the requirement of penetration is not an enquiry as

to whether the man ejaculated and as such, it does not lie
in the mouth of the accused to assert that he is not guilty
of rape because he did not emit semen. R v MARSDEN Commented [sq137]: The accused was convicted for
rape. He contended that he had not ejaculated as such he
could not had raped the girl. HELD: The court in rejecting
the submission of his counsel held that the requirement of
The most important element on rape charge is the lack of the offence was penetration only and therefore the offence
was completely proved.
consent. A charge of rape cannot succeed if the accused is
able to show that the woman consented to the sexual
connection – that is to say, consent is a complete defence
to a charge of rape. Consent is a complete defense to a
charge of rape – so the prosecution must prove absence
of consent on the part of the female alleged to have been
ravished. It is difficult to distinguish consent from mere
submission. So for instance, when the complainant was
asked in a recent English case, Barbour v. HMA, whether
she consented, she replied: “It depends what you mean by
consent.”
Under Ghanaian law, consent is void if it is obtained by
means of deceit or of duress and it is obtained by deceit
or duress if it would have been refused but for the deceit
of duress – Section 14(b) and 14(f) respectively. Commented [sq138]: 14(b). a consent is void if it is
obtained by means of deceit or of duress
14(f). 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
R v OLUGBOJA have been refused but for the deceit, duress, exercise of
authority, or mistake
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The accused offered to take the victims to their residence

but rather took her to his residence. He and his friend had
sexual intercourse with them without them consenting
despite they not using force or threat. Held: that, since the
amendment of section 1 of the Sexual Offences Act 1956
by section 1 of the Sexual Offences (Amendment) Act
1976, the offence of rape was having sexual intercourse
against the woman's consent; that the offence was not
limited to cases where sexual intercourse had taken place
as a result of force, fear or fraud and, therefore, the judge
had properly directed the jury and left to them the
question whether the complainant had consented to
having sexual intercourse with the defendant. Although
"consent" is a common word it covers a wide range of
states of mind in the context of intercourse between a
man and a woman, ranging from actual desire on the one
hand to reluctant acquiescence on the other. The issue of
consent should not be left to the jury without some
further direction. What the direction should be will
depend on the circumstances of each case
Then again, consent is void if the victim was under a
permanent or temporal incapacity resulting from
intoxication or any other cause, as to render her incapable
of understanding the nature or consequences of the
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sexual intercourse to which she has purportedly

consented – Section 14(a). R v CAMPLIN Commented [sq139]: Refer to above on defences
Commented [sq140]: The accused got a girl drunk on
liquor for the purpose of exciting her and having sexual
It is also rape if the accused knows the victim is asleep and intercourse with her. She became so drunk as to be
insensible.
therefore does not resist because she is, in that condition, HELD: It was held that the accused had committed rape
since at the time of the intercourse the girl was not in a
position to give consent
incapable of resisting. R v YOUNG. It is immaterial that the Commented [sq141]: The victim, a married woman, who
was feeling tipsy after a few drinks, was asleep with her
accused applied force as was held in Olugboja. husband and two kids. The accused came in through the
doorway, which was unlocked, at about 4 am and
A person who has given her consent may also revoke it – proceeded to have sex with the woman, she being asleep at
the time. When she awoke, she at first thought the accused
was her husband. But upon hearing him speak, she looked
Section 42(g). Therefore, though sexual intercourse is around, and seeing her husband by her side, she
immediately flung the prisoner off her, and called out to her
complete upon penetration, yet it is a continuing act husband.

Whereupon the accused ran away but was apprehended
ending only in withdrawal – therefore, the accused is

before he could make his escape certain. HELD: It was held
that if a man has or attempts to have a connection with a
woman while she is asleep, it is no defence that she did not
guilty of rape if he remains in the woman after she has resist
Commented [sq142]: A person may revoke consent
stopped consenting. R v KAITAMAKI which that party has given to the use of force against that
person, and the consent when so revoked shall not have
effect or justify force
The appellant broke into and entered a house and had
sexual intercourse with a young woman twice. He claimed
that as to the second sexual bout, it was after he
penetrated the woman that he became aware that she
was not consenting. However, he proceeded with the
intercourse anyway. It was argued by the defence that by
the criminal law of New Zealand, if a man penetrates a
woman with her consent, he cannot be guilty of rape by
continuing the intercourse after a stage when he realizes
that she is no longer consenting. HELD: It was held that
sexual intercourse is a continuing act which only ends in
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withdrawal. Thus, the conviction of the appellant was well

founded.
MARITAL RAPE
On the issue of marital rape, in the early Common Law, a
husband was held not to be guilty of rape because there
os mutual matrimonial consent and contract and the wife
cannot retract in such a contract2. This view was deemed
to be highly chauvinistic. However, with time, this view
was reversed and certain exceptions were given in R v
Clarence. In that case, the accused was charged with the
rape of his wife at a time when a separation order, made
by justices on the ground of persistent cruelty, was in
force. The order contained a clause that the wife was no
longer obliged to cohabit with her husband. The order
amounted to a judicial separation, which could only be
discharged if the wife committed adultery or if she
voluntarily resumed cohabitation with her husband. In
this case, the wife had not resumed cohabitation. It was
held that in the circumstances her consent to marital
intercourse was revoked and the husband was not
entitled to have intercourse with her without her consent.
2
Baron Pollock in R v Clarence: “The husband’s connexion with his wife is not only lawful, but it is in accordance
with the ordinary condition of married life. It is done in pursuance of the marital contract and of the status
which was created by marriage, and the wife as to the connexion itself is in a different position from any other
woman, for she has no right or power to refuse here consent”
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The Common Law courts once again revisited the issue in

R v MILLAR. In that case, the wife left the husband and
filed a petition for divorce on the ground of adultery.
Subsequently, he met his wife and had intercourse with
her against her will. The defence contended that since the
woman was the prisoner’s wife, he could not be guilty of
rape since the consent had not been retracted by a court.
Lynskey J. held that in the circumstances the man was not
guilty of rape since a petition of divorce brought before a
court is not the same as a court order of separation.
Previously under the Ghana law, section 42(g)3 followed
the Common Law reasoning that a man cannot be guilty
of marital rape unless the marriage has been annulled.
However, after our law reform, this view has been
dropped and provides by Section 42(g) that a man can Commented [sq143]: a person may revoke a consent
which that party has given to the use of force against that
person, and the consent when so revoked shall not have
nevertheless be guilty of raping his wife whilst the effect or justify force.
marriage is subsisting and the woman refuses consent.
DEFILEMENT
The offence of defilement is known in some jurisdictions
as statutory rape. The offence of defilement is governed
3
A person may revoke any consent which he has given to the use of force against him, and his consent when so
revoked shall have no effect for justifying force; save that the consent given by a husband or wife at marriage,
for the purposes of marriage, cannot be revoked until the parties are divorced or separated by a judgment or
decree of a competent court.
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by section 101 of Act 29. Section 101(1) defines

defilement as the natural or unnatural carnal knowledge
of a child under sixteen years. Section 101(2) explains that Commented [sq144]: A person who naturally or
unnaturally carnally knows a child under sixteen years of
age, whether
the offence is committed even if the child consented to with or without the consent of the child, commits a criminal
offence and is liable on summary conviction
the sexual act. to a term of imprisonment of not less that seven years and
not more than twenty-five years.
The aim of the legislature is to discourage sexual

intercourse, be it natural or unnatural, with children under
the age of sixteen years even if they give their consent to
the act. The offence is also gender neutral by the use of a
child. However, there seem to be a problem with the
retention of the formulation of carnal or unnatural carnal
knowledge a woman does not have the ability to carnally
know a person whether naturally or unnaturally since the
female organ cannot penetrate an orifice. R v MASON. Commented [sq145]: a married woman had sex with
about six boys aged between 14 and 16 years on various
occasions. She was indicted for indecent assault, but the
prosecution failed because there was no evidence of her
On a charge of defilement, the most important having used force on them, or even that she made a contact
consideration is the age of the victim – he or she must be

with their person. Since they had done the penetration with
her consent, no offence had been committed
under sixteen years of age – so if the victim is sixteen years

or more, the accused cannot be charged with defilement.
Therefore, if the victim, being female, is sixteen years or
more, the proper charge to prefer against the accused is
rape, if the sexual connexion was without her consent. On
the other hand, if the victim, being male, is sixteen years
or more, and the accused is male, the proper charge to
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prefer against the accused is unnatural carnal knowledge

simpliciter.
Defilement arises in one of two circumstances, namely:
a) where the act is done without the consent of the
victim in circumstances which will amount to
rape if the victim were sixteen years or more, and
b) where the act is done with the consent of the
victim.
As such, consent is irrelevant in defilement. All that the
prosecution need to prove is that the victim was under
sixteen years when the accused carnally knew him or her
or unnaturally carnally knew him or her. YEBOAH v THE
REPUBLIC, COP v SEM Commented [sq146]: The accused was alleged to have
had sexual intercourse with a nine year old child. He denied
ever having sexual intercourse with the child. However, it
was found as a fact that he did and he contended that she
There has been an issue of whether defilement is a strict did not oppose his having sex with her neither did she
complain to anybody. HELD: even though the victim failed
liability offence and whether the accused can plead to report or complain to her mother or anyone until about a
week later, it merely showed perhaps that she was a willing
mistake or ignorance of fact as to the age of the victim. It victim; but her consent was no defense in such a charge
Commented [sq147]: The appellant, who was charged
seem so because section 29(1) provides that, a person with defilement of a female between ten and fourteen
years of age, was convicted of the lesser offence of indecent
assault. The complainant, a maidservant aged twelve years,
shall not be punished for an act which, by reason of had delayed three weeks in reporting the incident. Medical
evidence did not support her account of attempted sexual
ignorance or mistake of fact in good faith, that person intercourse three weeks previously but showed that it
“might have been attempted on her not more than five days
before the examination.” The appellant, who had denied
believes to be lawful. the charge, was induced to sign a confession prepared by
the complainant’s employer because, “he said if I wrote
that statement he would remove the case from the police.”
Three witnesses corroborated the appellant’s version of the
making of the confession. Held: (1) having regard to the
three-week delay by the complainant in reporting the
alleged incident and to the medical evidence, the
prosecution did not establish their case with the necessary
certainty.
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CARNAL KNOWLEDGE OF AN IDIOT OR IMBECILE OR

MENTAL PATIENT
The law seeks to protect persons of subnormal
intelligence from sexual acts whether or not they consent
to such acts. A mentally handicapped person is deemed a
minor during the continuance of that condition –
therefore, he/she cannot give valid consent to sexual acts
by section 14(a).
By sec 102, a person commits an offence if he/she has a Commented [sq148]: A person who has carnal
knowledge or has unnatural carnal knowledge of an idiot,
sexual connection with an idiot, imbecile or lunatic – who

imbecile or a
mental patient in or under the care of a mental hospital
whether with or without the consent of that other person,
is in or under the care of a mental hospital (what if the in circumstance which prove that the accused knew at the
time of the commission of the criminal offence that the
other person has a mental incapacity commits a criminal
person is not in the hospital). offence and is liable on summary conviction to a term of
imprisonment of not less than five or and not more than
twenty-five years.
The mens rea requirement is important
- it must be shown that the accused knew at the
time of sexual intercourse that the victim had
a mental incapacity
The age of the victim is immaterial. R v PRESSY Commented [sq149]: The accused had sexual intercourse
with a thirty-seven year old female who was an apparent
idiot. It was held that the accused was guilty.
UNNATURAL CARNAL KNOWLEDGE

At common law, the issue of sodomy was treated as a
taboo subject. In line with this notions under English law,
Ghanaian law takes the view that heterosexual life is the
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normal thing for human beings. Therefore, any other

formula is cast by the law as unnatural – hence section
104(2) provides that: Unnatural carnal knowledge is
sexual intercourse with a person in an unnatural manner
or, with an animal.
Kissi provides that the definition under section 104
suggests that sodomy is unnatural
That is, sex per anum is unnatural – or what is variously
termed, coitus in anum – hitch to the wrong side of the
post – sink the brown – or usher of the back door.
Then also, bestiality i.e. carnally knowing an animal or
permitting an animal to carnally know one is unnatural,
hence criminal.
A person is guilty of unnatural carnal knowledge in one of
three ways, namely
i. having unnatural carnal knowledge with a
person of sixteen years or above without his or
her consent – because of the lack of consent,
this instance is equated to rape – hence it is a
first degree felony and the accused is liable to
suffer imprisonment of not less than five years
and not more than twenty-five years –
104(1)(a);
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ii. Or, having unnatural carnal knowledge with a

person of sixteen years or more with his or her
consent – this instance is a misdemeanor
because of the existence of the other person’s
consent – section 104(1)(b);
iii. Or, having sexual intercourse with an animal –
this instance is a misdemeanor – sec 104(1)(c).
However, lesbianism is not a crime because it does not
involve penile penetration – as we have said, a woman
does not have the natural ability to penetrate an orifice
with her genitals.
INDECENT ASSUALT
Indecent assault is a misdemeanor punishable by a term
of imprisonment of not less than six months – Section
103(1).Indecent assault involves all acts of sexual assault Commented [sq150]: A person who indecently assaults
another person commits a misdemeanour and is liable on
conviction to a term of imprisonment of not less than six
not involving penile penetration, whether natural or months.
unnatural. These include: oral sex?, digital sex, facial, pearl

necklace (ejaculating semen on or near the neck),
teabagging (placing one’s testicles in the mouth or on or
around the face of another in a repeated in-out-in-out
motion), breast fondling, buttocks fondling e.t.c.
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A person may be guilty of indecent assault in one of two

situations, namely:
- forcibly making a sexual bodily contact with
the other person in a manner that does not
amount to carnal or unnatural carnal
knowledge without the person’s consent – this
situation of culpability stresses the element of
force – in most cases, the absence of consent
suggests a forcible touching – sec103(2)(a) Commented [sq151]: A person commits the criminal
offence of indecent assault if, without the consent of the
other
person that person
- Or, sexually violating the body of the other (a) forcibly makes a sexual bodily contact with the other
person in a manner not amounting to carnal knowledge or
person in a manner not amounting to carnal or unnatural carnal knowledge
unnatural carnal knowledge without the Commented [sq152]: A person commits the criminal
person’s consent – sec 103(2)(b)

offence of indecent assault if, without the consent of the
other
person that person
(b) sexually violates the body of the other person in a
ALAWUSA v OSUDOTE: NB: this case was decided under manner not amounting to carnal knowledge or unnatural
carnal knowledge
the old regime that set store that a man could not be Commented [sq153]: the Appellant forcibly shaved the
pubic hair of his wife. It was held that since a husband could
charged for raping his wife – yet we have seen that this not be guilty of rape upon his wife, he could not be guilty of
indecent assault upon her either. This was because acts that
would ordinarily be considered indecent when occurring
situation has now changed and it is possible for a man to between a man and any other woman could not be so
be convicted of raping his wife – so the ratio in Alawusa

regarded, as between a man and his wife
Commented [sq154]: the respondent at all material
times lived with his wife and daughter. On two occasions, he
may not hold sway today put his arm round his daughter’s shoulders and led her
upstairs. She made no objection or resistance, and no force
or compulsion was used. He then exposed his person to the
R v ROGERS, R v SARGEANT child and told her to masturbate him. On both occasions the
child obeyed him although she did not wish to do so. On
both occasions he was alone in the house with the child.
INCEST HELD: It was held that it is no indecent assault if a person
merely invites another to touch him.
Incest is sexual intercourse between close family Commented [sq155]: the accused touched another man
and caused the man to masturbate against his will. The
members. It is mostly a victimless act and goes court in this instance held that to be an assault of an
indecent nature.
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unreported. In Ghana, the law does not prohibit sexual

relations between persons who are related only by
affinity, and but by blood ties, thus, the law does not
prohibit sexual relations between fathers and step-
daughters or between mothers and step-sons or between
step-siblings.
Incest is governed by Section 105. By section 105,
– it is incest, if being a male of not less than
sixteen years, you have carnal knowledge
of your granddaughter, daughter, sister,
half-sister, mother or grandmother
– It is incest if, being a male of not less than
sixteen years of age, you permit your
grandmother, mother, sister, half-sister or
daughter to have carnal knowledge of you
– It is also incest if, being a female of not less
than sixteen years, you have carnal
knowledge of your grandson, son, brother,
half-brother, father or grandfather
– Then, it is incest if, being a female of not
less than sixteen years, you permit your
grandfather, father, brother, half-brother
or son to have carnal knowledge of you
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It is very important to note that for an accused to be guilty

of the offence of incest, he or she must know that the
other party to the sexual connexion was within the
prohibited degrees of consanguinity – if the prosecution
does not prove that the accused knew this as a fact, he or
she is entitled to an acquittal. R v CARMICHEAL
It is immaterial that the relationship between the accused
and the other person is not traced through lawful wedlock
– even in this case, the accused will still be culpable.
Section 105(5)
PROCURATION
This offence is ordinarily referred to as pimping. A pimp is
a person who finds and manages clients for prostitutes
and engages them in prostitution in order to profit from
their earnings. The criminal law seeks to prohibit pimping
under the offence of procuration.
Commented [sq156]: Read from the Act. It is so long to
fit
It is governed by Section 107. Commented [sq157]: the accused took her daughter out
and accost men at street corners. She would take them
R v. de Munck :. R v DRURY home and leave the, with her daughter for a while . She
would then ask for money from them. She held tp have
encouraged the prostitution of her daughter. The court
found that the acts of lewdness had taken place. Her
The accused cannot be convicted of the offence of conviction was proper
procuration on the evidence of only one witness – there Commented [sq158]: the appellant watched as his friend
gave his 14 year old babysitter a drink and to have
must be corroboration in a material particular of that intercourse with her. The court held that he had custody of
the girl at the time: and his standing by whilst his friend
seduced the girl without any interference from him
constituted encouragement.
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witness’ testimony by evidence that implicates the

accused – Section 107(2). Corroboration consists of
evidence from which a reasonable inference can be drawn
which confirms in a material particular the evidence to be
corroborated and connects the accused with the crime –
Section 7(1) of the Evidence Act, 1975 (NRCD 323).
Section 108 deals with Seduction or Prostitution of a child

under sixteen.
NON-SEXUAL AND NON-FATAL OFFENCES AGAINST THE

PERSON
ASSAULT
Assault in criminal law is wider than in civil law, where
assault is merely descriptive of psychological discomfort
by an apprehension of unpermitted contact. Criminal
assault includes assault simpliciter, battery, and unlawful
detention.
Act 29, assault may be one of three things:
 assault and battery
 assault without actual battery; and
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 imprisonment – false imprisonment – SECTION

85(1)
Assault is lawful if it is justified on any of the grounds in
Chapter 1 of Part II of the Act – Section 85(2)
The mens rea for assault is intentional conduct in the case
of assault and battery, it must be with the intention of
causing harm, pain, or fear, or annoyance to the person
assaulted or exciting him to anger – sec 86(1). In the case
of assault without actual battery, it must be intentionally
putting the person assaulted in fear of an instant assault
and battery – sec 87(1). In the case of imprisonment, it
must be with the intention of detaining the person
assaulted in a particular place –sec 88(1).
Since the actus reus is unpermitted contact, proof of
consent may undermine the actus reus – the reason is that
if the contact is permitted then more likely than not,
nothing wrong has been done.
Assault and Battery
To constitute assault and battery it must be established by
the prosecution that without the consent of the other
person, and with the intention of causing harm, pain, or
fear or annoyance to the other person or exciting him to
anger, the accused forcibly touched that other person or
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caused any person, animal, or matter to touch that other

person – Section 86(1). The contact may be direct or Commented [sq159]: A person makes an assault and
battery on another person, if without the other person’s
consent,
indirect through an involuntary agent. and with the intention of causing harm, pain, or fear, or
annoyance to the other person, or of exciting the
other person to anger, that person forcibly touches the
DPP v K (A Minor) other person.
In the course of a chemistry class, One boy went to the

lavatory to wash some acid off his hand. He took with him,
very foolishly, a boiling tube of concentrated acid. He
wanted to test the reaction of the acid with toilet paper,
but then he heard footsteps outside. In a panic, he poured
the acid, or what remained of it, into the upturned nozzle
of the hand drying machine in the lavatory and went back
to the class. Another boy went to the lavatory to wash his
hands. He turned on the dryer and the acid was injected
into his face, leaving him permanently scarred. HELD: It
was held that it was clear that the first boy knew full well
that he had created a dangerous situation and the
inescapable inference was that he decided to take the risk
of someone using the machine before he could return and
render it harmless or that he gave no thought to that risk
The contact must be intentional and this intentional direct
contact or indirect contact through an involuntary agent
must be with the intention of causing harm, fear, pain or
annoyance or exciting to anger. Therefore, a forcible
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touch alone, without proof of intention on the part of the

accused to cause harm, pain or fear or annoyance to the
victim or exciting the victim to anger, cannot support a
charge of assault and battery.
COMFORT v THE REPUBLIC
The complainants attended a spiritualist meeting which
the first appellant had conducted at her house to exorcise
evil spirits and that in the course of the meeting the first
appellant, who is acknowledged by the group as a
prophetess and was therefore the chief actress in the
drama, had hit the head of the first complainant several
times with a stick in her effort to exorcise Abena Frema of
her evil spirit. The second complainant, went and held the
stick and the second appellant hit him on the chest and
the first appellant hit him on the head. The appellant
argued that she was in a trance at the time when she hit
her and as such, had no knowledge of what was going on.
HELD: The court held that the victim consented to his
beating up thus the offence of assault and battery is not
made up. Since she did not raise an objection to that
which she voluntarily consented to then the offence of
assault and battery is not made up.
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The consent of the victim to an assault will inure to the

benefit of the perpetrator if it is transient and trifling. The
consent of the victim to an assault will inure to the benefit
of the perpetrator if it is transient and trifling. Section
42(b), R v Donovan. Commented [sq160]: a wound or grievous harm cannot
be justified on the grounds of consent, unless the consent is
given, and the wound or harm is caused, in good faith, for
the purposes or in the course of medical or surgical
However, it is a sufficient defense to a charge of assault treatment;
that the accused and the victim were engaged in a game Commented [sq161]: the girl consented to being beaten
by the defendant in order to satisfy his sexual passion. It
was held that it is an unlawful act to beat another person
or sport that is authorized by law and is conducted in a with such degree of violence that the infliction of bodily
harm is a probable consequence, and when it is proved,
way not to pose any serious danger to life. Thus, if the consent is immaterial.
game or sport is dangerous to life there can be no defense

to any act of assault involving grievous harm on the
grounds of consent. R v Coney Commented [sq162]: The accused were seen at the
venue of a prize fight. It was established that some persons
in the crowd were encouraging the fight. However, the
three accused were not seen to do anything and there was
The general rule set out in sec 86(1) is qualified by or no evidence how they got there or how long they stayed.
Held: one can be held to have wilffuly encouraged the
subject to the provisions in section 86(2). Therefore, commission of a crime if he was voluntarily and purposely
present at and witnessing the commission of the crime and
where consent has been obtained by deceit, an intention offers no opposition thereto though he might be reasonably
expected to prevent it and had the power so to do or at
to assault will be inferred, to render the act a criminal fight amounted to abetting despite the fact that they did
not act or utter a word to that effect. Non accidental
assault. Section 86(2)(a). presence however is not conclusive of abetting.
A person who is insensible or unconscious or lacks the

capacity to give consent will be deemed to be a victim of
assault, in the circumstance. Section 86(2)(b).
The slightest touch suffices for an assault and battery, if
the requisite intention is established. Section 86(2)(c).
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A person is touched if her body is touched, or if any clothes

or other thing in contact with her body or with the clothes
upon her body are or is touched, although her body is not
actually touched. Section 86(2)(d). Therefore, the mere
fact of causing damage to the complainant’s skirt or
blouse or trousers or shirt is sufficient to support a charge
of assault and battery. The rationale is that clothes are so
intimately connected with the wearer that offensive
conduct against clothes is likely to be taken as an affront
to the wearer.
With respect to the question of intent, a person will be
held liable not only for intentionally causing harm, pain or
fear, or annoyance by the force or manner of the touch
itself, but also for forcibly exposing the victim or causing
the victim to be exposed, to harm, pain, fear, or
annoyance from any other cause. Section 86(2)(e).
Assault without Actual Battery
A person commits an assault without actual battery on
another person, if by an act apparently done in
commencement of an assault and battery, he intentionally
puts the other person in fear of an instant assault and
battery – Section 87(1). The essence of the offence is that
by his act or conduct the accused person intentionally puts
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the other person in present fear of assault and battery.

REPUBLIC v BRUCE-KONUAH. Commented [sq163]: a quarrel ensued between the
appellant and his neighbors over a hedge bounding their
respective lands. The appellant was a medical doctor. At a
point in the quarrel, the neighbor’s wife, according to the
From Section 87(2)(b), a person can make an assault prosecution, said to the appellant that certain nurses had
said that he had been misbehaving at the hospital. This
without actual battery by moving, or causing any person, apparently was too much for the appellant to bear because
upon hearing it, he jumped over to the neighbor’s side of
the hedge and chased the neighbor’s wife. The neighbor’s
animal or matter to move, towards another person, wife alleged that the appellant slapped her. This was denied
by the appellant. HELD: On appeal, it was held that by Act
although he, or such person, animal, or matter, is not yet 29, s. 85, "assault" covered assault with battery and assault
without battery. On his own showing the appellant was
within such a distance from the other person as that an guilty of assault without battery and his conduct in rushing
at the complainant with apparent intention to cause her
harm and intending to put her in fear of danger, fell
assault and battery can be made. squarely within the illustration of assault in Act 29, s. 87
(2)(b)
ILLUSTRATION
A. at a distance of 10 yards from B. runs at B., with the aim
of apparent intention of striking him, and intending to put
B. in fear of an immediate beating. Here A. is guilty of an
assault, although he never comes within reach of B.
In a case of assault without actual battery, the
apprehension of an instant assault and battery must be
reasonable. It must be apparent to the other person that
the accused has the ability or means to carry out the
assault and battery. From Section 87(2)(a), it is not Commented [sq164]: ILLUSTRATION
if A. points a gun at B. with intent to put B in fear of being
shot instantly, A. is guilty of assault without actual battery
necessary that an actual assault and battery should be even though to A’s knowledge the gun is unloaded or that
he in fact has no intention to shoot at B.
intended, or that the instruments or means by which the
assault and battery is apparently intended to be made
should be, or should by the person using them be believed
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to be, of such a kind or in such a condition as that an

assault and battery could be made by means of them.
Also, an assault without actual battery can be made on a
person although he can avoid actual assault and battery
by retreating, or by consenting to do, or to abstain from
doing, an act – Section 87(2)(c). This means that if a
person does any act in commencement of an assault and
battery on another person, the fact that the person utters
words indicating that he can avoid actual battery does not
unmake the assault.
Imprisonment
According to Section 88(1), a person imprisons another
person if, intentionally and without the other person’s
consent, he detains the other person in a particular place,
of whatever extent or character and whether enclosed or
not, or compels him to move or be carried in any particular
direction. Commented [sq165]: The application of subsection (1) is
subject to the following provision, namely, that the
This is subject to the circumstances enumerated in section detention

or compulsion may be constituted, within the meaning of
this section,
88(2). (a) by force or by a physical obstruction to a person’s
escape, or
(b) by creating the belief that the other person cannot
Cruel Customs or Practices in Relation to Bereaved depart from a place, or refuse to move or
be carried in a particular direction, without overcoming
Spouses force or incurring danger or harm,
pain or annoyance, or
(c) by creating the belief that the other person is under legal
arrest, or
(d) by creating the belief to the other person of immediate
imprisonment if the other person does
not consent to do, or to abstain from doing, an act.
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Section 88A is intended to halt cruel customs like Commented [sq166]: (1) A person who compels a
bereaved spouse or a relative of the spouse to undergo a
“kunayo”. Thus, any such practice which is cruel in nature

custom or
practice that is cruel in nature commits a misdemeanour.
(2) For the purposes of subsection (1), a custom or practice
will attract criminal sanctions if it amounts to assault and is cruel in nature if it constitutes an assault
within the meaning of sections 85, 86, 87 and 88.25(25)
battery, assault without actual battery or imprisonment.
CAUSING HARM TO A PERSON
CAUSING HARM
This offence is governed by Section 69 of Act 29. Commented [sq167]: A person who intentionally and
unlawfully causes harm to any other person commits a
second degree
felony.
Section 1 defines harm to be a bodily hurt, disease, or
disorder whether permanent or temporary. In this
respect, the skin of the victim must be broken but this
does not need to amount to grievous bodily harm. Also,
inflicting a disease or disorder on the victim will fix the
accused with liability.
R v Clarence.
Clarence, who had communicated venereal disease to his
wife, was indicted under section 20 of the English
Offences Against the Person Act. HELD: It was held that he
was not guilty because an infliction under the section
could only be by way of an assault. Stephen J opined that:
“The words appear to me to mean the direct causing of
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some grievous injury to the body itself…I think the words

imply an assault and battery of which a wound or grievous
bodily harm is the manifest immediate and obvious
result.” Here there was no assault, because an assault
presupposes lack of consent, and the wife had consented.
In the case of psychological harm, it appears from the
definition of harm in sec 1 that mental distress alone may
not be sufficient unless accompanied by a mental
disorder. On this point section 81(b) is even more Commented [sq168]: it provides that:
disease or disorder which a person suffers as the inward
effect of grief, terror, or any other emotion is not harm
instructive. So, under our law, psychological harm will not caused by another person, although such grief, terror, or
emotion has been caused by that other person, whether
do. with intent to cause harm otherwise.
Whatever be the case, the harm must have been caused Commented [sq169]: Harm is unlawful which is
intentionally or negligently caused without any of the
justifications.
intentionally and unlawfully. This means that all the Commented [sq170]: Four policemen went to the
complainant’s store and accused him of selling pall mall
prosecution need to prove is to adduce evidence to bring cigarettes above the controlled price. Even though he
denied the alleged offence one of them held him and asked
the act that caused harm within any of the provisions of him to accompany him to the police station and when he
resisted, the other three joined the first in beating him up,
section 11, which deals with intention and also establish tearing his knickers and pants and stealing an amount of
money he had on him. When his wife came to his rescue,
she was bitten by the first policeman. The trial magistrate
that the act was done without any justification recognized found that, (i) the force used by the police was excessive
and (ii) they tore the complainant’s knickers and stole his
under our criminal law. SECTION 76. BROBBEY v THE money. He therefore sentenced each of them to one
month's prison term with hard labor. Held: Twumasi J., (as
REPUBLIC. he then was) observed that an essential element for the
constitution of the crime of causing harm contrary to
section 69 is that the harm or damage must not only be
intentional but also unlawful. Mere harm or damage
without more is insufficient.
FEMALE GENITAL MUTILATION (FGM) Twumasi J., continued: To say the least, the learned
magistrate's conclusions bordered on the perverse.
Speaking for myself, I am unable to infer from the evidence
that the appellants employed excessive force to overcome
what I consider as unwarranted resistance offered by the
[complainant] and his wife. The wife's intervention was an
obtrusive venture calculated to interfere with the appellants
in the execution of their lawful duty to arrest the
[complainant].
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Female genital mutilation is governed by section 69A. This Commented [sq171]: Read from the Act.
provision was amended in 2007 under Act 741. The

purpose of the amendment was to change references to
female circumcision to that of female genital mutilation to
reflect the actual nature of the offence, and to widen the
scope of responsibility in relation to the offence. The crux
of the offence involves excising, infibulating or mutilating
the whole or any part of the labia minora, labia majora or
the clitoris.
The labia majora is the outer thick two folds of skin that
surround the clitoris, the opening of the urethra, and the
opening of the vagina – after puberty, it is usually covered
with pubic hair. The labia minora is the inner small folds of
skin that lie immediately inside the labia majora and join
at the front to form the clitoral hood.
Under Act 29, to “excise” is to remove the prepuce, the
clitoris and all or part of the labia minora – Section 66A(3).
The prepuce is the skin or foreskin which covers the tip of
the clitoris – it is also known as the clitoral hood. The
clitoris is a sensitive erectile female sex organ at the front
junction of the labia minora, lying above the opening of
the urethra and the vagina.
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To “infibulate” includes excision and the additional

removal of the external genitalia and stitching or
narrowing of the vaginal opening – Section 69A(3). To
“mutilate” includes any other injury caused to the female
genital organ for cultural or other non-therapeutic
reasons – Section 69A(3).
The offence of FGM may be committed in one of three
ways
 carrying out FGM
 participating in FGM
 being concerned with FGM
In the first situation, a person who carries out FGM by
excising, infibulating or mutilating the whole or any part
of the labia minora, labia majora or the clitoris of another
person is liable to imprisonment of not less than five years
and not more than ten years – Section 69A(1).
In the second situation, a person who participates in a
ritual or customary activity that subjects a person to FGM
also incurs the same liability – Section 69(A)(2).
In the third situation, a person who is concerned with a
ritual or a customary activity that subjects a person to
FGM also incurs the same liability – Section 69(A)(2).
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 to send to
 take to
 consent to the taking to or receive at any place
any person for the performance of FGM
Or
 to enter into an agreement (oral or written) to
subject any of the parties to the agreement or
any other person to FGM
 sec 69A(3)
CAUSING HARM WITH AN OFFENSIVE WEAPON

According to Section 70, a person who intentionally and
unlawfully causes harm to any other person by the use of
an offensive weapon commits a first degree felony. Proof
that the weapon used is offensive is essential because it is
the only distinguishing feature between causing harm
simpliciter under sec 69 and that of causing harm with an
offensive weapon under sec 70.
There is no definition of offensive weapon. The
offensiveness of the weapon in question depends on the
circumstances of each case. One test for determining
whether an object is offensive is whether it may be used
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for an aggressive purpose. Yaw Pramang v The Republic, Commented [sq172]: the complainant was attacked by
the accused when he was on the way to church with a sharp
cutlass. He sustained serious injuries. The court held: there
Darko v The Republic was no statutory definition for an offensive weapon
“material thing designed or used or usable as an instrument
for inflicting bodily harm.
CAUSING HARM BY OMMISSION Commented [sq173]: the accused attempted to kill
another only to be overcome when his weapon
A person is only culpable for harm caused by omission if disappointed him. He was charged with attempting to cause
unlawful harm contrary to section 18(1) and 70 of act 29.
he is under a duty to act. Thus, a person causes harm by HELD: The court held that the right provision is section 46
since there was a distinction between causing harm
unlawful and murder. The former had with it the mens rea
omission if he fails to perform a duty for preventing harm of killing whereas the latter the accused must aim at causing
harm only.
– Section 77. Commented [sq174]: A person causes harm by an
omission, within the meaning of this Act, if harm is caused
by that
By section 78, a duty to prevent harm to another person person’s omission to perform a duty for preventing harm as
mentioned in section 78, and not in any other case.
may arise in any of the following situations:
 if there exists a duty to supply the other person
with the necessaries of health and life – sec
78(a), (necessaries of health and life include
proper food, clothing, shelter, warmth,
medical or surgical treatment, and any other
matter which is reasonably necessary for the
preservation of the health and life of a person
sec 79(8))
 by imposition of law, or
 by voluntary assumption, or
 under an agreement or undertaking to do an
act for the purpose of averting harm to a
person, or
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 by virtue of a position (office or employment),

or
 by a lawful order of a court, or
 by a lawful order of a person – sec 78(b)
Sec 79 elaborates on the incidents of the duty to give Commented [sq175]: Section 79 when a duty to provide
the necessaries of life
a. When the spouse is under the control of the other
access to the necessaries of health and life. R v Senior spouse and a duty exist
b. A child who is not of age and unde rhte control of the
other parent
By Section 81(a), a person cannot be held liable for c. A guardian in relation to a child in his control.
Commented [sq176]: he appellant who was a member of
omitting to supply the necessaries of health and life to a religious sect left the child untended for when the child
was sick. The court held that the conduct amounted to
another, unless it is proved that by reason of age or willful neglect and therefore the father’s conviction of
manslaughter was upheld.
physical or mental state, or by reason of control by the

accused person, the other person could not have
prevented the harm through reasonable exertion. See
section 80 for explanations with respect to office.
NEGLIGENTLY CAUSING HARM
By Section 72, causing harm through negligence is a
misdemeanor. All the prosecution need to establish is that
although the accused did not intend to cause harm, yet he
caused the harm by a voluntary act, done without the skill
and care that are reasonably necessary under the
circumstances and that the accused did so cause the harm
without any justification recognized under our criminal
law – See Sections 12 and 76. The degree of negligence
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here need not amount to a reckless disregard for human

life.
See sec 73 for negligently causing harm while operating or Commented [sq177]: A person who
(a) being solely or partly in charge of a steam-engine,
machinery, ship, boat, or dangerous thing or matter of any
engaged in a dangerous thing. OKUTU v THE REPUBLIC, R kind, or
(b) having undertaken or being engaged in medical or
v NOAKES, surgical treatment of a person, or
(c) having undertaken or being engaged in the dispensing
supplying, selling, administering, or
By Section 82, Where a person acts in good faith in respect giving away of a medicine or a poisonous or dangerous
matter, negligently endangers the life of any other person,
commits a misdemeanour.
of the provision of medical or surgical treatment, and Commented [sq178]: the accused left his car parked on
the road with no warmimg lights. The complainant drove
intentionally causes harm to the person under treatment, into it and was injured, held he was guilty for causing harm
by negligently leaving his vehicle in a dangerous position.
which is due to a lack of the exercise of reasonable skill Commented [sq179]: the accused a chemist filled a
bottle with the wrong substance that is poison and in the
and care, or the person knows or ought to have known alternative bottle meant for the substance as the harmless
one. The patient died from taking the medicine. Held that it
that his action was plainly improper, he will be deemed to was clear negligence.
have negligently but not intentionally caused the harm –

the effect is to reduce the offence from a second degree
felony to a misdemeanor.
So, from the illustration, if for instance, a surgeon, through
gross negligence, amputates a limb where the necessity to
amputate did not arise, the surgeon is not liable to be
convicted of having intentionally and unlawfully caused
harm, but is liable to be convicted of having negligently
and unlawfully caused harm.
In all cases of causing harm, the accused is still liable even
if the complainant contributed to the harm by his
negligence, act, omission, or trespass – Section 81(d).
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THREAT OF HARM
By Section 74, to be culpable for threat of harm, it must
be established that the accused threatened the
complainant with unlawful harm with the intention to put
the victim in fear of an unlawful harm. Threat of harm is a
misdemeanor. BEHOME v THE REPUBLIC Commented [sq180]: the accused caught the wife in
harmony with another man and seized them. He assaulted
them and threaten to kill the man. He was convicted for
conspiracy to commit unlawful entry , robbery and threat of
death contrary to section 75. The court in relation to the
conspiracy. held: where one was charged with the threat of
harm the threat must be harm and nothing else.
THREAT OF DEATH
To be culpable for threat of death, it must be established
that the accused threatened the complainant with death,
with the intention of putting him in fear of death – Section
75. By Section 17(2), in respect of threat of harm and of
threat of death, an expression referring to a threat
includes an offer to abstain from doing, or to procure any
other person to abstain from doing, anything.
It is immaterial if the threat is conveyed by words, or by
writing, or in any other manner. – Section 17(4). It is
immaterial whether the threat is conveyed directly, or
through another person, or in any other manner. Section
17(4). It is also immaterial whether the content of the
threat will be executed by the person doing the
threatening against or in relation to the person
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threatened, or by, or against, or in relation to any other

person – Section 17(3).
EXPOSING CHILD TO DANGER
By Section 71(1)(a), It is an offence to unlawfully expose a
child under twelve years to danger, or unlawfully abandon
him or her. By Section 71(1)(b), It is also an offence to
unlawfully expose a physically or mentally handicapped
child to danger or to abandon a physically or mentally
handicapped child in a manner that is likely to cause harm
to him/her.
Section 71(2) defines a child as one below 18 years of age.
MAHAMA HAUSA v THE REPUBLIC
The accused the father of the child was charged with
taking care of the child by the mom. He left him at the
precincts of the court where he worked without
entrusting him to the care of anybody and the child
strayed off and was knocked down by a car. He was
charged and convicted for unlawful exposure contrary to
section 71. held: dismissing the appeal: the gravamen of
the offence of unlawful exposure under section 71 of Act
29 was the unreasonable behaviour or conduct of an
accused in failing to take care of a child under the
circumstances in which he found it thereby opening it to
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the chance of harm. Although the nature of the offence

was criminal, the duty imposed was a civil one. The test
applicable was civil, namely, the behaviour of the person
who although innocent of ill intention, had failed to act up
to the standard set by law which was usually that of a
reasonable man. In the instant case, the behaviour of the
accused was unreasonable because he negligently left the
child without proper care while on his errand and he was
caught by section 71 of Act 29
KIDNAPPING
By Section 89, a person who kidnaps another person
commits a second degree felony.
By section 90, the offence of kidnapping is committed in
any of the following circumstances:
 unlawfully imprisoning a person and taking
him out of the jurisdiction of the court without
the person’s consent – jurisdiction means a law
district, in this instance it appears to refer to
taking the person out of the country. R v D Commented [sq181]: a father took the ward out of the
jurisdiction of the court despite the ward being that of the
 unlawfully imprisoning a person within the

court and in the care of the mother. It was held that the
father in the circumstance was capable of kidnapping the
child.
jurisdiction in such a manner that prevents him
from applying to a court for his release or from
discovering to any other person the place of
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the imprisonment, or in a manner that

prevents a person entitled to have access from
discovering the place where the person is
imprisoned. R v REID Commented [sq182]: the appellant was convicted for
kidnapping and maltreating the wife who was his co
habituated partner. The defendant, who had quarrelled
with his wife, went to the house where she was living, held
There is no specification of the age or gender of the victim a knife against her throat and threatened to kill her unless
– so a person of any age or gender may be the victim of

she returned to live with him. In her terror she complied.
The defendant was convicted of kidnapping his wife. There
is no reason why a wife who is not separated from her
kidnapping. It is immaterial whether the accused husband, even a wife who is still to be regarded as
cohabiting with her husband, should lack this protection of
the criminal law The crime of kidnapping is complete when
demanded the payment of ransom. the person is seized and carried away; and there is no
reason why kidnapping should be regarded as a continuing
offence involving concealment of the person seized
ABDUCTION
Under Section 91, A person who abducts a child under
eighteen years of age commits a misdemeanour. Denyo v
The Republic. Commented [sq183]: The appellant was charged with
abduction under section 91 of the Criminal Code, 1960 (Act
29), in that he abducted a girl under the age of eighteen
years. The complainant and her mother testified that she
The actus reus of the offence consists of one of two things: was seventeen years old. The appellant was convicted and
sentenced to six months’ imprisonment with hard labour.
He appealed against the decision. At the hearing of the
1. unlawfully taking the child from the lawful appeal counsel for the appellant applied successfully for
leave to adduce fresh evidence. Fresh evidence was
possession, care or charge of a person adduced that the girl was in fact married and had a
twoyear-old child. Held, allowing the appeal: the
prosecution must prove strictly the age of the girl for it was
2. detaining the child and preventing him or her from a most essential element in the offence. The complainant
and her mother said she was seventeen years old but the
fact that she had a twoyear-old child should have called for
returning to the lawful possession, care or charge of stricter proof of her age. The evidence that the complainant
was seventeen years old at the time was unsatisfactory and
a person not up to the standard of proof required in such a case
 sec 92(1)(a)&(b)
The mens rea of the offence consists of one of three
elements, namely:
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1. intent to deprive a person entitled to the possession

or control of the child, or
2. intent to cause the child to be carnally known by any
person, or
3. intent to cause the child to be unnaturally carnally
known by any person
 chapeau of sec 92(1)
There is also a requirement of knowledge, and as such, by
Section 92(3), it must be established that the accused
knew, or had grounds for believing that the child was in
the possession, control, care, or charge of another person.
CHILD STEALING
According to Section 93, a person who steals a person
under fourteen years of age, whether with or without
consent, commits a second degree felony. All that need to
be proved is that the victim was under 14 years old.
Consent is immaterial. It is no defense for the accused to
assert that he did not know or believe the victim to be
under fourteen years or that he had no means of knowing
his age
Apart from the age requirement, in order to convict the
accused, it must also be established, that:
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 the accused unlawfully took or detained the

victim with intent to deprive the victim of the
possession or control to which another person
is entitled - sec 94(1), or
 that the accused unlawfully took or detained
the victim with intent to steal anything on or
about the body of the victim - sec 94(1) or
 that the accused unlawfully took or detained
the victim with intent to cause harm to the
victim – sec 94(1).
By Section 94(2), It is not necessary for the prosecution to
prove that the person stolen had been taken from the
possession, care or a charge of a person, if it is established
that some person, other than the accused, was entitled to
the control or possession of the victim. In other words, it
is enough for the prosecution to show that the accused is
not the person entitled to the possession, care, control or
Commented [sq184]: The appellant was charged before
charge of the person stolen. REGINA v DJOMOH Scott J. sitting with assessors for child stealing. At the trial
one witness said that she saw appellant at night with the
child (aged 5) going in the
direction of a fetish. The appellant explained to her that the
child was showing him to a certain house.
On further questioning, the appellant ran to the bush,
leaving the child behind. In his defence, appellant said he
had never seen the child and the evidence of the
prosecution witnesses was fabricated to punish him for
Special Provisions with respect to the offences of having insulted a fetish. He was convicted and he appealed.
HELD: The court held that, the question that needed to be
asked in this case was “Do the circumstances point
Abduction and Child Stealing necessarily
to the prisoner’s guilt, and to no other logical conclusion?”
The trial court did not ask this question and as such, the
court quashed the appellant’s conviction.
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By Section 95(1)(a), On a charge of abduction or child

stealing, it is no defense for the accused to assert that the
victim consented – it suffices if the accused persuaded,
aided, or encouraged the victim to depart or not to return.
Also, by Section 95(1)(b), An intention merely to Commented [sq185]: ILLUSTRATION
A mother, believing in good faith that she has a right to the
custody of her child in pursuance of an agreement with the
temporarily deprive a person of the possession or control father, takes it away from the father. The mother has not
committed the criminal offence of abduction, although the
of the person taken or denied, for however short a time is agreement is invalid
enough to fix the accused with liability for abduction or

child stealing, as the case may be.
However, the accused is not absolved from liability on the
plea that he did not know or believe, or had the means of
knowing that the age of the victim was under 18 or 14, as
the case may be. Whatever be the case, the accused is not
exempted from liability for abduction or child stealing as
long as he took or detained the victim for an immoral
purpose – Section 95(2).
Then also, a person who is in temporal possession, care or
charge of a child for a special purpose, say, as a school
master, may be liable for child stealing or abduction, if he
does acts in relation to the child he is not entitled to so do
– such a person cannot give consent to another person to
do a thing to the child, which thing is inconsistent with the
special purpose for which the child is being kept.
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HUMAN TRAFFICKING
This is governed by the Human Trafficking Act, 2005, (Act
694). The Act seeks to prevent and reduce human
trafficking within and across national borders, especially
for commercial purposes. By Section 2(2), the offence
attracts a penalty of not less than five years.
Human trafficking means the recruitment, transportation,
transfer, harbouring, trading, or receipt of persons within
and across national borders by any of the following acts

threats

force or other forms of coercion

abduction

fraud

deception

abuse of power

exploitation of vulnerability

giving or receiving payments and benefits to achieve
consent. Section 1(1)
Exploitation includes:
 induced prostitution and other forms of sexual
exploitation
 forced labour
 forced services
 slavery, or practices similar to slavery
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 servitude
 removal of organs. Section 1(2)
By Section 8 of Act, one is under a duty to inform the
authorities if one has information concerning trafficking.
Failure to so inform fixes one with liability for a fine of not
less than 250 penalty units or a term of imprisonment not
less than 12 months or both.
CHILD ABANDONMENT
This offence is governed by Section 96 of Act 29. Commented [sq186]: A person who is bound by law, or
by virtue of an agreement or employment, to keep charge
of or to
maintain a child under five years of age, or who is unlawfully
There are two situations under which a person may be in possession of a child, abandons the child by leaving it at a
hospital, or at the house of any other person or in any other
liable for the offence manner, commits a
misdemeanour.
1. where the person is bound by law, or an agreement

or employment to keep charge of the infant and
he/she abandons the child, or
2. where the person is unlawfully in possession of the
child and he/she abandons it.
The court on R v Boulden defined abandon to be to leave
a child to its fate. Abandonment arises where the accused
leaves the child at a hospital, or at the house of another
person, or leaves the child in any other manner. The child
should be under five years in the first scenario, but it is not
too clear in the second scenario.
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Where the accused is bound by law to keep charge of or

to maintain the child, he/she need not be the one who
initially left the child to its fate – liability arises if after
becoming aware that the child has been left to its fate,
he/she fails or refuses to retrieve the child from that state.
R v White
A mother of a child under two years placed it the doorstep
of the father and left it there. He was in the house at the
time, and she called out: “Bill, here’s your child; I can’t
keep it. I am gone.” The father some time afterwards
came out, stepped over the child, and went out away.
About an hour and a half afterwards, the father’s
attention was again called to the child still lying in the
road. His answer was: “It must bide there for what I know,
and then the mother ought to be taken up for the murder
of it.” When his attention was called to it again, he said: “I
will not touch it; those that put it there must come and
take it.” Later, the child was found by the police in the
road, cold and stiff. The father contended that he did not
abandon the child. HELD: Bovill CJ had this to say, Now,
the father was entitled to the custody and possession of
the child and he was bound to maintain and provide for
it, and to protect it, both morally and legally. The
prisoner was aware that the child was lying at his door,
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and there was clear evidence that he knew it was there,

and therefore he had the opportunity of protecting
it…The relationship of a father as regards his duty to his
child is different from that of any other person
OFFENCES AGAINST PROPERTY RIGHTS
These offences may be categorized in two main groups –
There are the acquisitive offences – in the sense of the
acquisition of items – these offences involve dishonesty.
Then there are offences involving damage or destruction
of items
STEALING
By Section 124(1), a person who steals commits a second
degree felony. By definition, Section 125 provides that, a
person steals if he dishonestly appropriates a thing of
which he is not the owner. The actus reus is the
appropriation of a thing and the mens rea is the
dishonesty with which the thing was appropriated.
To establish these elements, the prosecution must prove
three requirements, namely:
1. that the accused is not the owner of the thing
allegedly stolen
2. that the accused appropriated the thing alleged to
have been stolen, and
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3. that the appropriation was dishonest.
LUCIEN v THE REPUBLIC Commented [sq187]: the appellant was convicted for
stealing articles after he resigned as a teacher. At trial there
was dispute over the ownership of the product. On appeal
he contended that since the ownership was in dispute his
i. Lack of Ownership: the accused must not be the conviction was wrong. Held: The only basic ingredients
requiring proof in a charge of stealing were that: (i) the
owner of the thing allegedly stolen. There is no person charged must not be the owner of the thing stolen,
(ii) he must have appropriated it and (iii) the appropriation
requirement that the prosecution should prove must have been dishonest. Consequently, it was
unnecessary to prove ownership of the thing stolen and
who actually owns the thing allegedly stolen –

under section 120 (2) of Act 29, the thing, the ownership of
which was in dispute or in doubt could properly be the
subject-matter of a stealing count.
Section 123(3). All that is needed is for the Commented [sq188]: In proceedings in respect of
stealing, it is not necessary to prove ownership or value.
prosecution to show that the accused is not the
owner of the thing allegedly stolen – Halm v The
Republic. Commented [sq189]: Appeal against a conviction of
stealing. On the issue of proof of ownership, court held that
a charge of stealing is founded not on a relationship
ii. Appropriation: The accused must have between the person charged and an identified owner, but
on the relationship between the person charged and the
appropriated the thing alleged to have been stolen. thing alleged to have been stolen. Therefore the law only
requires proofthat the accused was not the owner of the
chattel.
This is governed by Section 122. By Section 122(2),
appropriation of a thing means the taking, moving,
obtaining, carrying away, or dealing with the thing Commented [sq190]: The appellant signed a voucher
under a fictitious name and received money which was
with the intention of depriving the owner of really due him for extra work done. His appeal against
conviction of stealing was upheld. Held: The court held that
since the money was due him for extra work done, there
- the benefit of his ownership, or was no appropriation or an intent to deprive anyone of his
ownership.
- the benefit of his right or interest in the thing, Commented [sq191]: the appellant contrary to the laid
down rules for requisition in the Ghana armed forces took
or roofing sheets from his contingent grounds to that of the
second accused, another commanding officer. He was
- in its value or proceeds, or convicted for stealing. He failed to inform the authorities of
the Armed Foces of the whereabouts of the sheets and
when confronted, he denied knowledge of them. He was
- any part thereof. was convicted of stealing and he appealed. He contended
that since the goods never left the Ghana army base there
ANTWI v THE REPUBLIC, ANING v THE REPUBLIC, was no stealing. HELD: on the evidence, the appellant
intended to steal the roofing sheets and since the kaw if
Ghana did not require a ‘carrying away’ before
R v WALSH appropriation could be established, he was guilty of stealing
the roofing sheets.
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the prisoner was tried on an indictment for stealing

a bag. The bag was placed in the front boot of a
coach. The prisoner, who was sitting on the box,
lifted the bag. A person who stood beside the
wheel on the pavement took hold of the bag, and
while the two were trying to draw it out of the boot
with a common intent to steal it they were
interrupted by the guard, and they dropped the
bag. HELD: It was held that even though the bag
was not entirely removed from the boot, since the
raising it from the bottom had completely removed
each part of it from the space that specific part
occupied there was complete asportation, and the
conviction was right.
It is enough if the intention is to deprive some
person temporarily, however fleeting the period, of
his benefit or right or interest in the thing
appropriated. It also suffices if the appropriation is
merely for a particular use, if the accused intended
so to use or deal with the thing that it will probably
be –
- destroyed, or
- become useless, or
- greatly injured, or
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- depreciated, or
- to restore it to the owner only by way of sale
or exchange, or for reward, or in substitution
for some other thing to which he is otherwise
entitled, or if it is pledged or pawned.
- Section 122(3)
Thus, temporary use or temporary appropriation is
enough to fix one with liability as long as it is
accompanied with the intention to deprive the
owner of his ownership, interest, benefit, value,
proceeds, or part of the thing.
ILLUSTRATION
If A. borrows a horse without the consent of its
owner, intending to keep it until it is worn out
before returning it, A. is guilty of stealing the horse
By Section 122(4), It is immaterial whether the act
by which a thing is taken, obtained, or dealt with
amounts to trespass or conversion or otherwise, or
it is not otherwise unlawful except for the
dishonesty surrounding the appropriation.
iii. Dishonesty: The appropriation must be dishonest.
By sec 120, dishonest appropriation arises in one of
three ways, namely:
i. where the appropriation is made with an
intent to defraud; or
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ii. where the appropriation is made without a

claim of right, and with the knowledge or
belief that the appropriation is without the
consent of some person who is the owner of
the thing; or
iii. where the appropriation, if known by the
actual owner, would be without his consent.
i. Appropriation to defraud: The existence or
otherwise of an intent to defraud depends on
the circumstances of each case. In terms of
section 16, an intent to defraud is an intent to Commented [sq192]: The illustration goes that: A., a
commercial traveler, is directed to collect money for his
employer. If he is at liberty to spend or dispose of the
cause, by means of the asportation, any gain particular moneys which he collects, and is only bound to
account for the balance in his hands at particular times or
capable of being measured in money, or the when called upon, he does not commit stealing merely by
spending any or all of the moneys collected by him, unless
possibility of any such gain, to any person at the there is an intent to defraud
expense or the loss of any other person.

ii. Appropriation without claim of right: An
appropriation without a claim of right is
dishonest. Sec 15 defines claim of right as “a
claim of right made in good faith”. This definition
seem to be inadequate.
A person has a claim of right if he is honestly
asserting what he believes to be a lawful claim,
even though his claim may be unfounded in law
or in fact. That is to say, a man who takes
possession of property, which he really believes
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to be his own, does not take it dishonestly,

however unfounded his claim may be.
So, as the illustration goes, A., during a lawsuit
with B., as to the right to certain goods, uses or
sells some of the goods. Here A. is not guilty of
stealing, because, although A. believes that B.
would object, yet A. acts under a claim of right
A claim of right must be made in good faith. A
claim that is made without good faith – in other
words – a claim that is tainted with mala fides or
ill or bad faith will render the appropriation
dishonest. Thus, all the accused needs to show is
a demonstrably honest belief in his claim.
OSEI KWADWO II v THE REPUBLIC. Commented [sq193]: the accused collected money from
the people of fahiakobo which the respondent contended to
be unlawful since it was the administrator of stool lands
BREMPONG II v THE REPUBLIC, who was to collect these monies as provided by section
17(1) of the Administration of Lands Act, 1962 (Act 123).
The appellant, the Omanhene of Atebubu The accused contended that the land in question was not a
stool land. Held; From this formulation of a claim of right, it
Traditional Council was arrested and charged is patent that good faith is of the essence of the defence.
The accused has a valid defence to a criminal charge where
with the offence of stealing a Mercedes Benz car he honestly but mistakenly believes that he is entitled to do
an act which is an actus reus. Doubt can, however, be cast
on the honesty of the belief, or such honesty may be
belonging to the council. He was given the car by rebutted, by evidence of information known to the accused
which should have persuaded him to correct his allegedly
the council to use to which it broke down. The mistaken view. A person has a claim of right …if he is
honestly asserting what he believes to be a lawful claim,
car was towed to Kumasi for repairs for which even though it may be unfounded in law or in fact The
Appellant here clearly believed that he was entitled to
the appellant paid for the costs. The repairer collect revenues from the Fahiakobo Lands. However,
because of the evidence on record that he received a
however collected these monies and dismantled warning issued on behalf of the Stool Lands Secretariat, he
cannot prove his good faith, in the light of that corrective
information.
the car and sold them and later absconded to
Nigeria with the money. The car was left in a
state of disrepair and notice was made to the
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council. The appellant sold the car for ¢5000. He

claimed that the council had abandoned the car
and he sold it to recoup his money paid to the
repairer. He thus relied on the defence of cliam
of right. He was convicted of stealing and he
appealed. HELD: in a charge of stealing, it must
be proved by the prosecution that the accused
dishonestly appropriated the stolen item. She
further held that dishonest appropriation must
be done with intent to defraud and also, a
defence of claim of right can validly negative the
claim. A person has a claim of right if he is
honestly asserting what he believes to be a
lawful claim even though his claim may be
unfounded in law or in fact. From the case, the
court held the appellant to have the defence of
claim of right as he only sold the car to recoup
hos monies paid to the absconded repairer
R v BERNHARD
The appellant was once a mistress of the
complainant. They broke up and the appellant
represented to the complainant that she was
broke. The complainant agreed to pay her a sum
of £20 per month for one year and paid her four
months advance. After the expiration of the four
months, the appellant deamded the remainder
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of the money from the complainant, failure of

which she will let his wife know about their
relationship. She was arrested and charged with
demanding mone with threats and intent to
steal. She was convicted and has appealed, on
grounds of claim of right, in that, she honestly
believed that the money was hers and was only
demanding it. HELD: The court held that it was
not necessary that the appellant should be right
in law or in fact in her claim of right. What is
necessary is that he honestly believed she had a
claim, for which in this case she had
iii. Where the appropriation, if known by the
owner of the thing, would be without his
consent: This point is self-explanatory. The Act
provides this illustration.
A being the guest of B writes a letter on B’s
paper. Here A has not stolen, because, although
A does not use the paper under a claim of right,
yet A believes that B, as a reasonable person,
would not object to A doing so.
However, the prosecution is not required to
show that the accused should know the owner
of the thing. It suffices if the accused has reason
to know or has reason to believe that some other
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person, whether certain or uncertain, is

interested in the thing or is entitled to it, as
owner or by operation of law. Section 120(2). Commented [sq194]: It is not necessary, in order to
constitute a dishonest appropriation of a thing, that the
accused person should know who the owner of the thing is,
but it suffices if the accused person has reason to
know or believe that any other person, whether certain or
However, a person may not be guilty of stealing if the uncertain, is interested in or entitled to, that thing whether
as owner in that person’s right or by operation of law, or in
ownership of the thing is in doubt. Therefore, where the any other manner; and a person so interested in or entitled
to a thing is an owner of that thing for the purposes of the
provisions of this Act relating to criminal misappropriations
defence alleges consent on the part of one of the disputed and frauds.
owners, then proof of ownership becomes material, since

consent to appropriation by the owner negatives stealing.
DRAMANU v THE REPUBLIC

The appellant, a secretary of the Gonja Traditional Council
was ordered by the paramount chief of the area, the
Yabonwura, to sell two stray cattle, which by custom had
been brought to the chief. An amount of ¢200.00 was
realized from the sale, and according to the prosecution,
the appellant failed to pay the sum into the traditional
council's coffers. The appellant was therefore charged
with stealing.
In his defence he stated that after the sale he gave the
¢200.00 to the chief, who, as the owner, gave it back to
him for safe keeping. But later, on the instructions of the
chief, he used the money in paying a debt owed by the
chief’s son. Even though the prosecution alleged that the
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money belonged to the traditional council, no evidence

was adduced in proof of the fact that the council had lost
anything. The trial magistrate found the appellant guilty of
stealing and convicted him.
HELD: In allowing appeal, it was held that even though
under section 120 (2) of Act 29, a person might be guilty
of stealing a thing, the ownership of which was in dispute
or unknown, or had been found by another person, on its
true construction, the section did not mean that a person
might be guilty of stealing when the ownership was in
doubt.
And although section 125 of Act 29 made it plain that it
was not necessary for the prosecution in proving a stealing
charge to establish ownership of the stolen property,
where the prosecution had specifically stated in the
charge sheet that ownership resided in some particular
person, failure to establish such ownership could be fatal
to the prosecution's case.
COMMENT: In this case proof of ownership was
fundamental, first in the sense that whereas the
prosecution alleged that the traditional council was the
owner, the accused alleged that the money belonged to
the chief, secondly that although the trial magistrate
decided that it was not proved that ownership was in the
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council, he made a restoration order in their favour and

thirdly, it formed the basis of the defence of the appellant
for if the paramount chief was the owner as alleged, then
he could not have been guilty of stealing.
The consent of the owner to the taking of a thing is a

complete defense to a charge of stealing, since the
owner’s consent to the taking negatives the essential
element of dishonest appropriation. All the factors that
negatives consent is applicable here.
Consent here may be actual or implied. Implied consent
may be deduced from the relationship between the
parties – for instance, in law, ordinarily, marriage operates
as implied consent to the taking of property belonging to
the other spouse. In law, a wife has the implied consent of
the husband to take and use his property, just as he has
the implied consent of his wife to the use of her property.
The general rule is that if the wife of the owner of the thing
consents to its appropriation by the accused, the accused
will be exculpated from liability unless the accused had
notice that the wife did not have the husband’s authority Commented [sq195]: Where it is proved, on behalf of a
to consent to the appropriation. Section 126(1). R v person accused of having stolen a thing that the wife of the
owner of the thing consented to its appropriation by the
accused person, the accused person shall not be
CREAMER convicted unless it is proved against the accused person
that the accused person had notice that the wife did not
have the authority to consent to the appropriation
Commented [sq196]:
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The accused will be deemed to have had notice that the

wife did not have the husband’s authority, if the accused
has had a sexual connection with the owner’s wife, or if
the accused is designing to have a sexual connection with
her. However, the accused will not be guilty of stealing by
reason only of the fact that he appropriated the thing with
the consent of the owner’s wife or by reason only of the
assistance rendered to him by the owner’s wife to
appropriate a clothing of the wife, or money or other item
which the owner’s wife is apparently permitted to have at
her disposal or for her own use. Section 126(2). R v Commented [sq197]: Where it appears that the accused
person had committed, or designed to commit, adultery
with the
FLATMAN wife, the accused person shall be deemed to have had
notice, but shall not in that case be deemed to have
committed the criminal offence of stealing by reason only
Also, by Section 121, a co-owner of a thing can be guilty (a) of the appropriation, with the consent of the wife, or
(b) of the assistance to the wife to appropriate a wearing
of stealing the thing, irrespective of the fact that the thing apparel of the wife or money or any
other thing of which the wife is apparently permitted to
have the disposal for her own use.
is jointly owned by the accused and another person or Commented [sq198]: A person who is an owner of or
interested in a thing, or in the amount, value or proceeds of
persons. R v MAYWHORT that thing,
jointly or in common with another person or as a member
of a company, or who is owner of a thing as a trustee and
Subject Matter of Stealing also as a beneficiary of that thing, whether jointly or in
common with another person or for a company of which
that person is a member, can be convicted of stealing or of
The list of things that can be stolen are inexhaustible fraudulent breach of trust in respect of the thing; and a
person can be a clerk, servant, or officer of a company of
By sec 123, anything may be stolen –

which that person is a member.
- whether living or dead

- whether fixed to anything or not
- whether the thing be a mineral or water, or
gas, or electricity, or of any other nature
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- whether the value of the thing does not

amount to one pesewa
- whether the value of the thing is intrinsic (i.e.
is only valuable by and of itself and not
because of its association with any other
thing)
- whether the value of the thing is only for the
purpose of evidence
- whether the thing is of value only for a
particular purpose
- whether the thing is of value only to a
particular person
And if the thing is a document, it is of value, whether it is
complete or incomplete; and whether it is satisfied,
exhausted, or cancelled.
By Section 123(3), on a charge of stealing, there is no
requirement to establish the value of the thing. Therefore,
even if the thing has no intrinsic value, the accused would
still be guilty. SAM v THE STATE Commented [sq199]: The appellant was convicted for
stealing a human skull from a grave. He appeals to the high
court contending that a skull of a human being did not
constitute a thing capable of stealing under the criminal
It should be noted that dominion or possession is critical offences act. HELD: It was held on appeal that secs 122 (2)
to the offence of stealing – that is to say, property which

and 123 of Act 29 were couched in such wide terms as to
make a human skull capable of being stolen because the
relatives of the deceased were "interested" in the corpse of
is not subject to the dominion of any person such as which the skull formed part. Further, since no person could
remove a corpse from a grave without the permission of the
Minister under Act 301, s. 27 (7), it followed that the local
animals in the wild or fish in a river, lake or sea cannot be authority was interested because it was buried in their
ground. And that there was abundant evidence to show that
the subject-matter of stealing, unless brought to effective in Ghana, relatives did not abandon their dead. A corpse or
any part of it was therefore capable of being stolen
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possession or dominion of another or regulated by game

reserve laws.
Therefore, by sec 127, a person is NOT guilty of stealing if Commented [sq200]: ILLUSTRATIONS
1.A finds a ring in the high road. If the ring has an owner’s
or maker’s name or motto engraved
he appropriates a thing which appears to have been lost on it, or if it is of great value, A will be convicted of
stealing it if A appropriates it without
by another person, except: making reasonable enquiry.
2. A buys an old chest at the sale of the personal effects
of a deceased person. A finds a
- if at the time of appropriating the thing, he banknote in a secret drawer of the chest A commits the
criminal offence of stealing if A
appropriates the note, unless A had expressly bought the
knows the owner of the thing or the person by right to what A might find in the
chest, or makes reasonable enquiry and fails to discover
whom it has been lost, or the owner.
- if the character or situation of the thing, or the

marks on it, or any other circumstances is or
such as to indicate the owner of the thing or
the person by whom it has been lost – so, for
instance A. finds a ring in the highway. If the
ring has an owner’s or makers’ name or motto
engraved upon it or it is of grave value, A. will
be guilty of stealing it if he appropriates it
without making reasonable enquiry, or
- if the character or situation of the thing, or the
marks upon it, or any other circumstances is or
are such that the person who has lost the thing
appears likely to be able to recover it by
reasonable search and enquiry, if it were not
removed or concealed by any other person
KRAMO WALA v THE STATE
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The accused was found in the possession of an accordion,

the missing property of another, whose room was
allegedly broken into during the night and some of his
property stolen therefrom. When the accused was
challenged, he said that he had picked up the accordion
from the ground on his way to the lavatory. He was
accordingly taken to the police station and there charged
with stealing the accordion.
HELD: In allowing his appeal against conviction, it was held
that if a man found goods that had actually been lost or
were reasonably suspected by him to have been lost, and
appropriated them really believing when he took them
that the owner could not be found, that was not stealing;
but if he took them with a felonious intent and reasonably
believed that the owner could be found, he committed the
offence of stealing.
COMMENT: In the instant case, there was no evidence on
the record to show that the appellant at the time he
picked up the accordion knew or believed he could
ascertain who the owner was. It was not sufficient that if
he had taken pains the owner might be found because he
was not bound to do that.
ALI v THE REPUBLIC
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Sometime in July 1988, the first appellant, a blind man,

sent some school boys he heard passing by his house to
buy him food. One of the boys gave him something
wrapped in paper and told him that he had dropped it.
Later, he gave the paper to the second appellant who had
come to visit him to ascertain what was in it. When he
learnt that the paper contained earrings, the first
appellant authorised the second appellant to take them to
a goldsmith to ascertain their value. Accompanied by the
third appellant, a cripple, they were informed that the
earrings were made of gold and would sell at ¢1,200. The
third appellant bought the earrings when the first
appellant offered them for sale. However, when the third
appellant sent the earrings to the complainant, another
goldsmith who lived in the same house as the first
appellant, for another assessment of the value of the
earrings, the complainant claimed the earrings were part
of a number of missing trinkets valued at ¢55,000. He
therefore took the third appellant to the police station
and the two others were arrested. At the trial the first
appellant was charged with stealing, the second appellant
with abetment, and the third appellant with dishonestly
receiving. The appellants were convicted and sentenced
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to six months' imprisonment with hard labour. They

appealed.
HELD: It was held that since there was no evidence that
the first appellant, a blind man, who had to rely on the
second appellant to ascertain the nature and value of the
earrings— which had no identifying marks—knew who
their owner was, and besides, he had waited for two
weeks when no one reported their loss before selling
them, a charge of stealing could not be sustained against
him.
ROBBERY
According to Section 149, a person who commits robbery
commits a first degree felony. Robbery is stealing with the
use of force, or causing of harm, or threat of criminal
assault or harm – R v DAWSON. Commented [sq201]: the accused robbed a petrol
station. It was held:"a person is guilty of robbery if he steals,
and immediately before or at the time of doing so, and in
order to do so, he uses force on any person or puts or seeks
By section 150, a person who steals a thing is guilty of to put any person in fear of being then and there subjected
to force.
robbery if, in and for the purpose of stealing the thing
- he uses any force or causes any harm to any
person, or
- if he uses any threat of criminal assault or harm
to any person,
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all with the intent to prevent or overcome the resistance

of the other person to the stealing of the thing
Thus, on a charge of robbery, the prosecution must prove
all the elements of stealing and also show:
 that the accused used force or caused harm to some
person in the process of stealing, or
 that he threatened some person with assault or harm
in the process of stealing, and
 that the accused did so with the intent of preventing
or overcoming the resistance of the person to the
stealing of the thing
It should be noted that the force or threat need not be
directed solely at the person being robbed – so it suffices
if the force or threat is directed at some other person if
the intention is to prevent or overcome the resistance of
the first person to the stealing of the thing.
BEHOME v THE REPUBLIC
The appellant had suspected for some time that his wife
had been having an affair with N. On the day in question,
the appellant left home on the pretext that was travelling.
That same night he led five other persons to the village to
watch the conduct of his wife and after laying in waiting
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for some time they saw the wife enter N.'s room. The
appellant thereupon led the other members of the watch
into N.'s room, caught the couple, tied them up, stripped
them naked, assaulted them and burnt their clothing. A
brother of N. who later on came to the scene was also tied
up and assaulted. The victims were thereafter frog-
marched to the appellant's cottage and tied to a tree.
When another brother of N. came to the scene, the
appellant demanded that he should pacify him with
¢40.00 as ayefare otherwise he would kill N. The brother
therefore went home and brought the money to the
appellant. The appellant then demanded and received
another ten cedis towards his taxi expenses. After
receiving these sums the appellant refused to hand over
N. on the ground that he (N.) might commit suicide on
account of the punishment he had meted out to him. The
appellant therefore marched his wife and N., naked and
with their hands tied, for a distance of six miles to the
odikro's house.
HELD: On a charge of robbery, it was held that under
section 150 of Act 29 a person would only be guilty of
robbery if in stealing a thing he used any force or caused
any harm or used any threat of criminal assault to another
with intent thereby to prevent or overcome the resistance
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of that other to the stealing of the thing. The fear might

be either of personal violence to the person robbed or to
a member of his family in the restrictive sense of a man,
his wife and children. And the thing stolen must be from
the person of the one threatened or in his presence, if the
property was under his immediate and personal care and
protection. In the instant case since the duress was against
N. but it was N.'s brother who paid the amount and
furthermore there was an interval between the putting in
fear and the taking of the money whereby it could not be
said that there was an intent to overcome resistance to
the stealing by those threats, a charge of robbery could
not be sustained against the appellant.
The mental requirement is crucial – merely using force or
causing harm or resorting to threats is not robbery. The
mental element here involves two aspects:
– first, it must be shown that the accused
intended to steal something (animus furandi)
i.e. dishonestly appropriate a thing not
belonging to him and without a claim of right,
and
– second, that he used force or caused harm or
threatened to cause harm or assault with
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intent to prevent or overcome the resistance

of any person to the stealing of the thing
It is not necessary that physical harm must be caused. It is
enough if a person is threatened with criminal assault or
harm with intent to put him in fear of such criminal assault
or harm.
EXTORTION
According to Section 151(1), a person who extorts
property from any other person by means of threat
commits a second degree felony. In this regard, Section
151(2), “threat” does not include a threat of criminal
assault or harm to the person threatened. When used in
the context of extortion, “threat” may be in the nature of
blackmail, libel or slander as seen in Section 17. So, as the
illustration goes, if A. obtains money from B. by threat of
violence to B., he is guilty of robbery and not of extortion.
The essence of the offence of extortion is not merely
demanding or obtaining property but doing so with
threats. If you make a demand for money from another
person accompanied by threats not amounting to
violence, you may be liable for extortion unless you can
show that you had a reasonable and probable cause for
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making the demand – that is – the demand was justifiable.

CSP v N’JIE & GAYE Commented [sq202]: the first appellant had received
from the Public Trustee a sum of £130 to be spent on
certain purposes and for which he was obliged to account. It
appeared that he had lost or misapplied some of this money
Related to the offence of extortion is the offence of and the letter sent to the chief clerk was an attempt to
extortion by a public officer or juror – which is created by

covel' this loss. The letter implied that after the first
appellant had received the £130, the chief clerk had asked
for and obtained from him £80 by way of " commission."
section 239 and explained in section 247 The letter, on threat of exposure, demanded the £80 from
the chief clerk, or a receipt for this sum. When the case was
tried by the magistrate the first appellant stood by the
A public officer is guilty of extortion if, under the colour of contents of the letter: the second appellant claimed that he
had merely written what he was told by the first appellant.
HELD: A genuine belief in the existence of facts constituting
his office, he demands or obtains from any person, any reasonable and probable cause is a sufficient defence even
though it may be ill-founded. Although there could, on the
money or valuable consideration, which he knows that he facts, have been no such belief on the part of the first
appellant there could not have been on the part of the
second appellant, and as this had not been explored at the
is not lawfully authorized to demand or obtain, or at a trial the second appellant was entitled to an acquittal.
time at which he knows that he is not lawfully authorized

to demand or obtain. APPIAH v THE REPUBLIC
The appellant was the special prosecutor of the public
tribunal set up under the Armed Forces Revolutionary
Council (Special Tribunal) Decree, 1979 (AFRCD 93). He
was arraigned before the Circuit Court, Accra on a charge
of extortion for demanding and obtaining from two
persons, the complainants, who were fugitives from
justice and whose cases were before the tribunal, the
sums of £1000 and £10,000 respectively, which was paid
to his account in London. He was found guilty of the
charge and he appealed. HELD: The court held that the
offence of extortion in the alternative of demand or
obtain. The demand might either be directly or indirectly
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made. If indirect, proof of the demand might be

impossible without other enabling statutes. Obtaining lent
itself to readier proof as well as readier defences. It is the
suspicious end results that flowed from representation
that must be explained. As such, provided there was
representation, demand or obtaining, the offence of
extortion was committed even when the payment
secured no returns. From the case, the conduct of the
appellant showed a representation under the colour of his
office and there was evidence of obtaining as such.
The difference between extortion simpliciter and extortion
by a public officer is that while the essence of the demand
in the former is the use of threats, the essence of the
demand in the latter is “under the color of office”.
YEBOAH v THE REPUBLIC Commented [sq203]: The three appellants were all police
officers. They searched the house of the complainant
without authority on grounds of suspiciond of keeping
gunpowder in his house. the complainant paid an amount of
¢220 to the appellant, through the 4th appellant. They were
arrested and charged with conspiracy, extortion and willful
oppression. On the extortion charge, he was charged under
FRAUDULENT BREACH OF TRUST section 151 instead of section 247. HELD: The court held
that the appellants at the material time pf the alleged
By Section 128, a person who commits a fraudulent extortion were public officers and acted by the use of the
colour of their office to obtain money and as such, they
should have been charged under section 247 rather than
breach of trust commits a second degree felony. The section 151. Also, the main idea of extortion is not merely
demanding or obtaining but doing so with threaths. The
purpose of the creation of the offence is to discourage charge must contain words by means of threats.
trustees from dishonestly exploiting their position of trust

as regards the trust property and the beneficiaries of the
trust property. Thus, by Section 129, a person is guilty of
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fraudulent breach of trust if he dishonestly appropriates a

thing the ownership of which is vested in him as trustee
for or on behalf of another person.
The prosecution must prove three essential ingredients to
succeed on a charge of fraudulent breach of trust, namely:
1. that the ownership of the thing is vested in him
as trustee for or on behalf of some other person;
2. that the trustee appropriated the thing while it
was so vested in him; and
3. that the appropriation was dishonest.
According to Section 122(1), An appropriation of a thing

by a trustee means a dealing with the thing by the trustee,
with the intent of depriving a beneficiary of the benefit of
the right or interest in the thing, or in its value or
proceeds, or a part of that thing.
However, by Section 130, a gratuitous trustee cannot be
guilty of the offence of fraudulent breach of trust unless
an instrument of trust in writing has been executed by the
trustee specifying the nature of the trust and the
beneficiary. A gratuitous trustee is one, who being the
owner of a thing in his own right and for his own benefit,
undertakes to hold or apply the thing as trustee for
another person.
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FRAUD BY FALSE PRETENCES

According to section 131, A person who defrauds any
other person by a false pretence commits a second degree
felony. By section 131(2), a person who by means of a
false pretence or by personation obtains or attempts to
obtain the consent of a person to part with or transfer the
ownership of a thing by a false representation of acting in
accordance with the instructions, orders or a request of
the President or a member of Cabinet also commits a
second degree felony and is liable to term of
imprisonment of not less than 10 yrs and not more than
25 yrs.
Fraud by false pretences involves obtaining the consent of
a person to part with or transfer the ownership of a thing
by means of a –
- false pretence, or
- personation
- sec 132
To succeed on a charge of defrauding by false pretences,
the prosecution must prove the following essential
conditions:
1. that the accused made a false pretence or engaged
in impersonation, and that
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2. that by means of the false pretence or personation,

the accused obtained the consent of a person to part
with or transfer the ownership of a thing
Clearly then, it must be proved that the person who
parted with or transferred the ownership of the thing in
question would not have done so but for the false
pretence or impersonation
The element of inducement is very important – that is to
say, the victim must have been persuaded to accept the
false pretence of or impersonation by the accused as true
and to have acted upon it to his detriment. So, if it is
shown that the complainant was not induced by the false
pretence of, or impersonation by the accused, then it
cannot be said that the complainant was defrauded. Also,
if it is shown that the complainant had knowledge of the
falsity of the representation by the accused, but still acted
upon it to his detriment, it cannot be said that the
complainant has been defrauded. RABBLES v THE STATE. Commented [sq204]: the appellant, who was an
independent food contractor received a local purchase
order (LPO) from the University of Ghana for the supply of
10 bags of white rice. He altered the figure "10" on the LPO
On another score, by Section 133(2)(c), it does not matter to read "110" and added two more items, 300 bags flour
and 50 cartons sugar and took it to the complainants,
that had the complainant used ordinary care and Edward Nassar & Co. Ltd., who supplied him with two of the
items on the list. The complainants discovered that the
judgment the false pretence would not have induced him university had requisitioned for only ten bags of rice. They
nevertheless supplied the appellant with the third item, and
– the accused is liable as long as the false pretence

reported the matter to the police. HELD: On appeal against
his conviction it was held that the complainants could not
be said to have been induced by his representation because
influenced the decision of the complainant. in cases of false pretence, to induce must be taken to mean
to persuade a victim to accept a representation made to
him as true and act upon it to his detriment or to the
detriment of another.
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What then is the position of the law where consent is

obtained by a false representation as to the quality or
value of a thing?
Here, by Section 133(2)(c), the consent will be deemed to
have been obtained by a false representation only where
the thing is substantially worthless in comparison to what
it was represented to be, or the thing is substantially
different from what it was represented to be.
There are separate definitions of false pretence and
personation. Despite the separate definition, personation
is a species of false pretence, while false pretence is the
genus. False pretence, according to Section 133(1), is a Commented [sq205]: ILLUSTRATIONS
So from the illustrations, the following are false pretences
-A. goes into a shop dressed as an officer in the Army,
representation of the existence of a state of facts made by which he is not. If he does this in order to gain credit
which he would not otherwise get, he is guilty of a
a person, made with the knowledge that the false pretence, although he does not actually say that
he is an officer
-A. represents that a picture which he is selling, once
representation is false or without the belief that it is true, belonged to a particular collector
-A. represents that a picture which he is selling was
and made with an intent to defraud. By Section 133(2)(a), painted by a particular painter
-A. represents that a picture which he is selling
The representation may be made in writing or orally, or by belongs to him when in fact it does not
-A. represents that he is entitled to a legacy under a
will of a deceased relative
personation, or by any other conduct, or sign, or means. -A. represents that he has an account at a particular
bank
Also, by Section 133(b) representation of the existence of -A. represents that he has the authority of another
person to act on that person’s behalf
a state of facts includes a representation as to the non-

existence of a thing or condition of things.
A representation as to existence of a state of facts renders
the accused liable but a representation as to the
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occurrence of a future event does not render the accused

culpable. Therefore, a mere representation or promise
that anything will happen or will be done, or is likely to
happen or is likely to be done, will not do. SECTION
133(2)(b). REPUBLIC v KUMA. From the illustrations, the Commented [SDQ206]: The appellant was arraigned
before a district court on an indictment which charged him
with two counts of stealing. The committal magistrate took
following acts by A. do not amount to defrauding by false the view that the evidence established the offence of fraud
by false pretences but not stealing. He therefore went for
pretences, although they are false: no case and acquitted the accused. The state appealed
against this decision and was allowed and an order was
made for a re-trial where he was convicted. He appealed
– that a picture he is selling is a valuable work against this conviction. HELD: to succeed on a charge of
defrauding by false pretence, it must be proved that (i)
there was a misstatement or personation fro the accused
of art which amounted to false pretence, (ii) that the falsity of the
pretence was known to the accused, (iii) that the accused
– that he expects to receive a legacy when a obtained the consent of another person to part with or
transfer the ownership of anything and (iv) that the accused
acted with intent to defraud. Also, a mere representation or
relative dies promise that anything will happen or be done or is likely to
happen or be done does not amont to false pretence.
However, a false representation as to future conduct or

the promise of an event in the future coupled with a false
representation as to the existence of a state of facts could
found liability. CSP v CEESAY. For the accused to be Commented [SDQ207]: The accused was convicted
before a magistrate of stealing by a clerk or servant. The
proceedings at the trial were irregular in that the
culpable, the accused had an intention to defraud. Section magistrate, at the close of the case for the prosecution, had
asked the accused if he had anything to say before sentence
16 defines intent to defraud as an intent to cause any gain was passed, and had then proceeded to convict the accused
without giving him opportunity to present his defence.
Held, that the irregularity, although of such gravity as must
capable of being measured in money, or the possibility of cause the conviction to be quashed, would not have been
evident from the record of the trial if this were prepared as
any such gain, to any person at the expense or to the loss in England, and therefore, as the accused had been in
jeopardy, it did not render the trial a nullity.
of any other person by the means of a false pretence.

Personation involves either
– a false representation or false pretence by a person
that he is a different person – it does not matter
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whether the person he purports to be is dead or alive

or is a fictitious person; or
– giving or using one’s name with the intention that one
may be believed to be a different person of the same
or similar name – sec 134 – the wording of sec 134(2)
suggests that personation may amount to a crime
standing on its own.
FICTITIOUS TRADING
This is governed by Section 135. This is where a person
orders or makes a bargain for the purchase of goods by
way of sale or exchange and after obtaining the goods he
defaults in paying the purchase money or defaults in
supplying the goods.
Here, such a person is guilty of defrauding by false
pretences in one of two situations:
– if at the time of placing the order or making the
bargain, he intended to default in paying for or
supplying the goods, that is to say, he had no
intention whatsoever of paying for or supplying the Commented [SDQ208]: The accused collected some
specified worth ₵40000 from the complainant with a
goods; or promise to pay for the same within a week. At the
appointed time, the accused who had at the time of
– if the order was placed, or the bargain was made with transaction made a part-payment of only ₵21000 did not
return any goods or make any payment to the complainant.
He was arrested and charged with defrauding by false
intent to defraud and not in the course of any trade pretences. HELD: The court held that, the accused had an
intent to defraud as to the requisite intent was made
carried on in good faith. DARKRUGU v THE REPUBLIC. manifest by the fact that he did not pay for all the goods
supplied him by the complainant nor did he return the
goods at the appointed time.
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Distinction between Stealing and False Pretences

The distinction lies in the existence or otherwise of the
consent of the owner or a person with authority to part
with the ownership of the subject-matter of the charge.
So where the owner of a thing or person having authority
to part with ownership of the thing, gives his consent to
the appropriation of the thing by the accused, the accused
is not guilty of stealing the thing, even if the consent was
obtained by deceit – in such a case, the accused may be
guilty of defrauding by false pretences. Sec 136(1)
So as the illustration goes, A. intending fraudulently to
appropriate a horse belonging to B., obtains it from B.,
under the pretence that he wants it for a day. Here, A. is
guilty of stealing.
On the other hand, A., intending to defraud B. of a horse
without paying him induces B. to sell and deliver it to him
without present payment, by a false pretence that he has
money in his account. Here, A. is guilty of obtaining by
false pretences, but is not guilty of stealing
If the accused alleges that he obtained the thing with the
consent of the owner or someone authorized to give
consent, he must establish that the consent was
unconditional for the immediate and final appropriation
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of the thing. Sec 136(2). In line with the policy under Act
29 to stem the tide of fraud, charlatanic advertisements
have been criminalized under sec 137
Thus, the advertisement or the issue of a notice relating
to fortunetelling, palmistry, astrology, or the use of any
subtle craft, means or device, by which it is sought to
deceive or impose on a person, or which is calculated or is
likely to deceive or impose on a person, is illegal. Sec
137(1). In such a case, the editor, publisher, proprietor, or
printer of a news media in which the advert or notice is
published is liable to be fined an amount not exceeding 25
penalty units.
DISHONEST RECEIVING
This is where a person takes possession or control of
goods obtained by a crime – the typical case is where a
thief sells stolen goods to another person.
By section 146 of Act 29, it is an offence for a person to
receive property, which that person knows to have been
obtained or appropriated by stealing, fraudulent breach of
trust, defrauding by false pretences, robbery, extortion or
unlawful entry.
A person who dishonestly receives property obtained or
appropriated by any of these offences is liable to the same
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punishment as if that person had committed that offence.

For, instance, if A. obtains goods from B. by false
pretences and C., knowing that A. obtained the goods by
this means, dishonestly receives the same, he will be guilty
of dishonestly receiving the goods and liable to be
punished for defrauding by false pretences.
On another score, by section 148(1) of Act 29, where a
person is under a charge of dishonestly receiving property,
is shown to have had in his possession or under his
control, anything which is reasonably suspected of having
been stolen or unlawfully obtained, and that person does
not give an account, to the satisfaction of Court, as to the
possession or control, the Court may presume that the
thing has been stolen or unlawfully obtained, and that
person may be convicted of dishonestly receiving in the
absence of evidence to the contrary. R v SANTUOH. Commented [SDQ209]: Eighteen shops at Adum, Kumasi
and a number of wax prints were stolen from them. The
appellant was aroused from his sleep on the night of the
theft by one Dogo, his friend and some men. They asked
This is an aspect of what is known in the common law as him to keep about 133 pieces of wax prints in room claiming
the concept of recent possession – this concept posits that

that he received it from his family and that and that, he will
collect it the next day. The appellant collected the goods but
also went out of Kumasi the the next day. He was arrested
if a person is found to be in possession of any property and charged with dishonestly receiving goods. HELD: the
appellant was liable as in a crime of dishonestly receiving,
the main contention is whether at the time of receiving, the
which has been recently stolen and he is unable to give accused had knowledge that it was stolen. From the facts
and evidence of the case, considering the quantity of wax
satisfactory explanation as to how he came by the prints involved, the time of receipt, the persons who
brought them and the behavior of the appellant after
receipt and his explanation for receiving them, the guilty
property, he will be presumed to have dishonestly knowledge can reasonably be inferred.
received it, unless he gives a reasonable explanation as to

how he came by it.
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By Section 148(2), it should be noted that the possession

or control of a carrier, an agent, or a servant is deemed to
be the possession or control of the person who employed
the carrier, agent or servant. This is what is known as
constructive possession. This is what is known as
constructive possession.
To succeed on a charge of dishonest receiving, the
prosecution must satisfy the following requirements:
i. that the accused received property which he
knew to have been obtained or appropriated by
stealing, or fraudulent breach of trust, or
defrauding by false pretences, or robbery, or
extortion or unlawful entry.
ii. that the receipt by the accused of the property
was dishonest.
The actus reus consists of receiving, buying, or assisting in
the disposal of the property otherwise than with a
purpose of restoring it to the owner as seen in SECTION
147(1). Further, it must be established that the accused Commented [SDQ210]: A person commits the criminal
offence of dishonestly receiving property which that person
knows
either physically received the goods or that the goods to have been obtained or appropriated by a criminal
offence, if that person receives, buys, or assists in the
were in the possession of a person over whom he had disposal of the property otherwise than with a purpose to
restore it to the owner.
control.
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Another aspect of the actus reus is the knowledge on the

part of the accused that the property was obtained or
appropriated by a crime – merely proving that the accused
received property obtained or appropriated by a crime is
not sufficient to establish the actus reus. SALIFU v THE
REPUBLIC. On this point, knowledge may be inferred from Commented [SDQ211]: the accused stole rice from the
ministry and sold it to the co-accused. The co-accused was
the circumstances of the case – for instance, where the

convicted for dishonest receiving. It was held; allowing the
appeal of the second accused that the need for a knowledge
of the for the offence of dishonest receiving. Where stolen
accused secrets the property in very unlikely places. R v property was found in the possession of an accused an
inference of guilt knowledge was warranted by his
possession together with the absence of an explanation of
BOATENG. that possession. If an explanation was offered that was
consistent with innocence or raised some doubt as in the
instant case, the accused was entitled to an acquittal and
Knowledge may also be inferred, for instance, where the fact that the accused was negligent or reckless in not
realising that the property was stolen was irrelevant
goods are offered for sale at “any price” or where the Commented [SDQ212]: The appellant was charged with
burglary and stealing from a house. He was acquitted on
goods are offered for sale at a ridiculously low price - in thise charges but convicted of receiving a bottle of whisky
and a tin of sardines knowing them to have been stolen. He
situations such as these, knowledge may be imputed to appealed. HELD: The court held that the trial court erred in
his holding and held that the appellant’s silence was not
proved to collaborate with the crime committed. The fact
the accused since the circumstances are such as to put him that he was silent could mean that he didn’t intend to take
part in the crime.
on reasonable enquiry – that is the accused ought to have
known that the property was probably obtained or
appropriated by a crime.
The mens rea of the offence consists of a dishonest intent
– therefore, it is not enough merely to show that the
accused received or bought or assisted with the disposal
of property with the knowledge that it was obtained or
appropriated by a crime.
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However, by Section 147(1), where the intention of the

accused is otherwise than to restore the property to the
owner, liability may arise. Also, by Section 147(2), it does
not matter that the offence by which the property was
obtained or appropriated, was not committed within the
jurisdiction of the Court.
FORGERY
The things in respect of which forgery may be committed
include: judicial or official documents, any document,
hallmarks on gold or silver plate or bullion, trade-marks,
stamps of any description and currency notes.
Ghanaian law draws a distinction between official/judicial
documents and unofficial and non-judicial documents. By
Section 158, it is a second degree felony to forge a judicial
or an official document with intent to deceive another
person. An official document is one purporting to be
made, used or issued by a public officer for a purpose
relating to that public office – Section 163(3)
According to Section 159 It is a misdemeanor to forge a
non-judicial or unofficial document with intent to defraud
or injure another person; or with the intent to evade the
requirements of the law; or with the intent to commit, or
to facilitate the commission of, a criminal offence.
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To succeed on a charge of forgery under either sec 158 or

sec 159, the prosecution must prove that the thing alleged
to have been forged is a document. A document is defined
under Section 179(1) of the Evidence Act, 1975 (NRCD
323) Commented [SDQ213]: Documents normally refer to
writings, including handwriting, typewriting, printing,
photostat, photograph, mechanical or electronic recording,
and any other means of recording upon a tangible thing, or
Also, under Section 160, It is a misdemeanor to forge or form of communication or representation, including letters,
words, pictures, sounds or symbols, or combinations of
counterfeit a hall-mark or mark appointed, under the those things.
authority of a law, by a public corporation or public officer

to denote the weight, fineness, age, or place of
manufacture of gold or silver-plate or bullion with the
intention to defraud.
The mens rea requirement of an intent to deceive under
section 158 is different from the mens rea requirement of
an intent to defraud or injure under sections 159 and 160.
Intent to defraud (deceive) is explained under Section 16. Commented [SDQ214]: where a forgery, falsification, or
any other unlawful act is punishable if used or done with
intent to defraud, an intent to defraud means an intent to
Intent to injure on the other hand means that some cause, by means of the forgery, falsification, or the other
unlawful act, a gain capable of being measured in money, or
person may act to his detriment or loss. the possibility of that gain to a person at the expense or to
the loss of any other person.
With respect to “intent to deceive”, the law does not

require the person deceived to have been deprived of
anything. Thus, where the accused sets out with an intent
to deceive, but not to defraud or injure, he may not be
culpable under sec 159. YIRENKYI v THE REPUBLIC.
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The appellant was an employee of the G.N.T.C. attached

to the provisions wholesale. His mother-in-law was a
baker who had tried on many occasions without success
to obtain flour from the G.N.T.C. As a result, her business
was failing. The appellant found a chit for the supply of ten
bags of flour to the Ghana Police Force which had not
been cancelled or countersigned by the district manager.
Thinking it was still valid and had not been utilised, he cut
off the heading “Ghana Police Force” and substituted his
wife’s name. The chit was then given to his mother-in-law
who paid for and collected ten bags of flour. The appellant
was charged with forgery with intent to defraud. He was
convicted on his own plea and he appealed, contending
that he only intended to deceive and not to defraud.
HELD: The court held that there was a difference between
an intent to defraud and an intent to deceive. To deceive
is to induce a man to believe that a thing is true which is
false and to defraud is to deprive by deceit. There are two
essential elements to the commission of the crime of
forgery under Section 159. off the heading “Ghana Police
Force” and substituted his wife’s name. The chit was then
given to his mother-in-law who paid for and collected ten
bags of flour. The appellant was charged with forgery with
intent to defraud. From the case, the act of the appellant
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did not induce the storekeeper to do what was not his

duty and as such, had no intent to defraud
By section 161, it is a misdemeanor to forge or counterfeit
a trademark in relation to goods or the sale of goods or
sell or offer for sale any goods or thing so marked or have
in one’s possession, custody or control the goods or a
thing so marked, or the materials contrived or means
prepared or contrived for the forging or counterfeiting a
trademark, or for the marking of goods or a thing with the
intention of fraudulently passing off, or to enable another
person to fraudulently pass off, the goods as having been
lawfully marked with the trade-mark or as being a
character signified by the trademark. Look at Section
163(1) for the definition of trademark.
Counterfeiting is an offence on its own – thus, by section
168(2) the offence of counterfeiting consists of making
anything, which is intended to serve as a specimen, or
pattern or trial of a process for counterfeiting a stamp or
mark. Counterfeiting is defined by section 168(1) as the
making of an imitation of a stamp or mark, or anything
which is intended to pass or which may pass as that stamp
or mark or thing.
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By section 165, it is a misdemeanor to possess a means of

forging – that is having in one’s possession, without lawful
excuse, an instrument or a thing specifically contrived or
adapted for the purposes of forgery. OLUJOMOYE v THE
REPUBLIC. By section 166, it is an offence to possess a Commented [SDQ215]: The appellant and his wife were
charged before a judge and a jury for having in their
possession things contrived for the purpose of committing a
forged, counterfeited or falsified document or stamp with crime relating to forging currencies. The appellant was
convicted but his wife was acquitted. He appealed on
the requisite mens rea. The accused must know that the grounds that at the time of being caught, the things were in
the possession of his wife and not him. HELD: The court held
that although actual possession of the item was necessary,
document is forged, or that it is counterfeited, or that it is it was sufficient that if they are in the actual possession of a
person over whome the defendant has a contract so that
false or not genuine. they would be forthcoming if ordered. Thus, in the case, cos
the appellants wife was in possession, it is imputed that he
also was.
OKPARA v C.O.P
The appellant was convicted on four counts of possessing
forged documents and aiding and abetting another to
commit forgery. He was convicted and he has appealed.
HELD: It is essential that for a charge under section 166 of
the Criminal Code, 1960, to succeed it must be alleged in
the particulars thereof, and it must be proved by
evidence, that the person charged knew that the
document in his possession is forged or that it is otherwise
not genuine. Failure to prove that essential ingredient of
the charge is fatal to the prosecution. No evidence from
the prosecution substantiated the claim.
The mere possession of a forged document is not an
offence – the intent with which it is posed is a crucial
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factor. BAWA @ ISSAHAQUE v THE REPUBLIC. Section Commented [SDQ216]: the police in Accra reported to
their Tamale branch a case of defrauding in Accra involving
the accused. He was arrested at his home in Tamale where
167 provides what constitutes possession for this certain documents, namely a GCE O’level certificate
together with a testimonial and result slip from Tamale
purpose. Secondary School were found even though he attended
Bawku Secondary School. He was charged with the offence
of possession of forged documents. HELD: it was held that
By sec 169, it is an offence to utter or deal with or use a since the accused was charged with possessing forged
documents, it was essential for the prosecution to have
stated in the particulars of the charge the intent with which
document or stamp with the knowledge that it is not the accused possessed the forged documents.
Commented [SDQ217]: (1) A person possesses or does
genuine or that it is forged, counterfeited or falsified and an act with respect to a document knowing it is not genuine,
if that person possesses it, does an act with respect to it,
with the requisite mens rea. knowing that it was not in fact made or altered at the time,
or by the person, or with the authority or consent of the
person, at which or by whom or with whose authority or
Further, by section 164(1), a person forges a document if consent, it purports or is pretended by that person to have
been made or altered; and it is immaterial whether the act
he actually makes or alters the document, with intent to of the person who made or altered it was or was not a
criminal offence. (2) In like manner, a person possesses or
does an act with respect to a stamp, knowing it is not
cause it be believed: genuine, if that person possesses it or does an act with
respect to it, knowing that it is in fact counterfeited or
– that the document has been made or altered

falsified; and it is immaterial whether the act of the person
who counterfeited or falsified it was or was not a criminal
offence.
by a person who did not in fact make it or alter
it – it is immaterial if the person is dead or alive
or is a fictitious person; or
– that the document has been made or altered
with the authority or consent of a person who
did not in fact give the authority or consent – it
is immaterial if the person is dead or alive or a
fictitious person; or
– that the document has been so made or
altered at a different time from that at which it
was in fact made or altered.
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Also, by Section 164(2), it is forgery to issue or use a

document, which is exhausted or cancelled, with the
intent that it may pass or have the effect as if it were not
exhausted or cancelled. It is also forgery if a person makes
or alters a document in his own name if he does so with
the requisite mens rea of the offence of forgery. Section
164(3)
However, by Section 164(4), it is not forgery if a person
makes or alters a document in a name which is not his real
or ordinary name unless he does so with the requisite men
rea of the offence of forgery.
UNLAWFUL ENTRY
Section 152 provides that, a person who unlawfully enters
a building with the intention of committing a criminal
offence in the building commits a second degree felony.
To constitute entry, it must be shown that either the
whole or some part of the body of the accused or an
involuntary agent employed by the accused entered the
building. Therefore, to avoid a charge of unlawful entry,
no part of the body or any part of an employed involuntary
agent should enter the building. Thus, where in breaking
a window with the intent of stealing property in a house,
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the accused’s finger went within the building, it was held

to be sufficient entry – R v DAVIS Commented [SDQ218]: The accused, a little boy pushed
his hand into the complainant’s shop who dealt with
jewelleries at close of work. He was apprehended and
charged with unlawful entry and stealing. HELD: on the
From Section 13(1), a person who intentionally causes an question as to whether there was a sufficient entry by the
accused to warrant stealing, the court held that it did and
involuntary agent to cause an event is deemed to have the accused’s insertion of his hand into the shop was
unlawful entry.
caused the event and this may include an animal or
anything. Thus, a person who pushes into a building, a
stick or iron or any instrument adapted to be able to take
from an object from a building without actually physically
entering the building, will still be guilty of unlawful entry.
According to Section 153, entry is unlawful if a person
enters a building where he has no lawful right to do so or
where a person enters a building without the consent of a
person who is able to give consent for the purpose for
which the person enters. It may be a defense if the
accused entered the building under a mistake or
ignorance of fact in good faith.
Unlawful entry is not a strict liability offence – prove of the
mens rea is essential. It must be established that the
accused so entered the building with the intention of
committing a crime.
KANJARGA v THE STATE
On a master’s return from work one day, he discovered
that his steward boy had disappeared and that some of
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the louvres of a bedroom window had been broken

leaving an opening in the window. Money that he had kept
in a locked drawer was no longer there. The steward boy
was later traced by the police to his hometown in the
Upper Region. He was arrested and charged with stealing
and unlawful entry. HELD: The court held that, To
establish the crime of unlawful entry, the prosecution
must, in addition to proving entry, prove that an intent to
commit a crime in the premises existed at the time of
entry and was the purpose for the making of the entry.
According to Section 154, where the accused, without
actually entering a building, is found, without lawful
excuse, in possession of a tool or an implement adapted
or intended for use in unlawfully entering a building, he
will be held to have committed a misdemeanor.
BEING ON PREMISES FOR UNLAWFUL PURPOSE
According to Section 155, a person who is found in or
about a market, wharf, jetty, or landing place, or in or
about a vessel, verandah, outhouse, building, premises,
passage, gateway, yard, garden or an enclosed piece of
land, for an unlawful purpose, commits a misdemeanor.
The actus reus of the offence is being found in or about a
market, wharf, jetty, landing place, vessel, verandah,
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outhouse, building, premises, gateway, yard, garden, or

an enclosed piece of land. The mens rea is presence in or
about such premises for an unlawful purpose. AMOAH v
THE STATE Commented [SDQ219]: the appellant was seen coming
from the complainant’s room in her absence. When
confronted, he said he was a washman and had gone to
The phrase “in or about” appears to suggest that the take clothes t wash. He was arrested and charged with
unlawful entry. HELD: It was held The essence of the charge
of being on premises for an unlawful purpose under section
accused need not have actually entered the premises or 155 of Act 29 was the purpose for which the entry was
made; if the purpose was lawful then no offence was
building. Therefore, it seems that it is sufficient if the committed. There was no evidence from which it could have
been inferred that even if the appellant did enter the house
it was for the purpose of stealing. Adler
accused is found or seen loitering or wandering about the
premises for an unlawful purpose. ADLER v GEORGE Commented [SDQ220]: under the Official Secrets Act,
1920, it was an offence to obstruct a member of the armed
forces in the vicinity of a prohibited place. The defendant
entered the Marham Royal Airforce station, which was a
prohibited place within the Act and obstructed a member of
the forces engaged in his duty. He argued that although he
was in a prohibited place, he was not within the vincinity of
that place. HELD: The court applying the Golden rule of
interpretation held that being in the vincinity of a premise
should be interpreted to mean in or near the prohibited
place and as such, the appellant was liable for unlawful
entry.
TRESPASS
This offence is in relation to land. Trespass to land under
Act 29 are of two types – the first type is entering upon
Commented [SDQ221]: A person who (a)
land unlawfully and the second type is entering upon land unlawfully enters in an insulting, annoying or threatening
manner on land belonging to or in the possession of any
lawfully but subsequently engaging in conduct which other person, or (b) unlawfully enters on land after
having been forbidden so to do, or (c) unlawfully
enters and remains on land after having been required to
renders the continued stay of the person on the land depart from that land, or (d) having lawfully
unlawful – sec 157

entered on a land, acts in a manner that is insulting,
annoying or threatening, or
(e) having lawfully entered on a land, remains on
that land after having been lawfully required to depart from
The first type of trespass include: that land, commits a criminal offence and is liable, on the
complaint of the owner or occupier of the land, to a fine not
exceeding twenty-five penalty units; and the Court may
order the removal from the land, by force if necessary, of a
person, an animal, a structure or a thing
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– unlawfully entering a piece of land in an

insulting, annoying or threatening manner
– unlawfully entering a piece of land after having
been forbidden to do so
– unlawfully entering and remaining on a piece
of land after having been required to depart
from that land
The second type of trespass include:
– lawfully entering on a land but subsequently
acting in an insulting, annoying or threatening
manner.
– lawfully entering a piece of land and remaining
on same after having been lawfully required to
depart from the land.
In all these cases, it must be shown that the accused is not
the owner or occupier of the land – therefore, the offence
may not lie if the accused is a lawful tenant or lessee or
attorney or agent of an owner or occupier. Section 156
defines owner or occupier.
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OFFENCES INVOLVING DAMAGE TO PROPERTY

UNLAWFUL DAMAGE
This is what is usually referred to as arson, and it is
committed in relation to movable or immovable property.
According to Section 172(1), causing damage to property
the value of which damage does not exceed GHC100 or
without a pecuniary value is a misdemeanor. Causing
damage to property the value of which damage exceeds
GHC100 is a second degree felony. NB: the law is
concerned with the value of the damage and not the value
of the property damaged – that is – the amount needed to
put the property to its former use, and unless the damage
to the property is proved to be irreparable the value of the
damage cannot be said to be the value of the property in
question. ASANTE v THE REPUBLIC. By Section 172(2), Commented [SDQ222]: The accused assaulted a police
officer after the officer tried to arrest. The arrest was
unlawful. HELD: it was held The provisions of section 172 of
Causing damage to property in a manner which causes or Act 29 deal with the value of the damage and not the value
of the property damaged and unless the damage to the
is likely to cause danger to life is a first degree felony. property is proved to be irreparable, the value of the
damage cannot be said to be the value of the property. To
secure a conviction under this section it is necessary for the
By sec 173, damage includes any of the following factors prosecution to prove beyond reasonable doubt that the
damage was caused intentionally within section 11 (2) of
Act 29, and also without just cause or excuse. This they
failed to do.
- damage to the matter of the thing

- interruption in the use of the thing
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- interference with the thing by which it

becomes permanently or temporarily useless
- interference with the thing by which some
expense is necessitated to render the fit for the
purpose to which it is used or maintained
For liability to arise, the damage should have been caused

unlawfully – that is, without any legal justification
However, despite the general position of the law on
mistake of law, a person who causes damage, believing in
good faith that he is entitled so to do, is not liable for
punishment. SECTION 174(5). Damage is also unlawful if
the person causing it is liable to a civil action or
proceeding, or to a fine or other punishment under an
enactment,
– in respect of act causing the event
– in respect of the consequences of the act or
event
– in which the accused would be liable if he
caused the event directly by a personal act
– in which the accused is liable to be restrained
by injunction or any other proceeding from
doing the act causing the event
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By Section 174(3), a joint owner or a trustee of a thing may

be liable for damaging the thing. Then also the owner of a
thing may be liable for damaging the thing if he damaged
the thing with intent to injure, cause harm or to defraud
another.
On another score, by Section 175(2), a person who is
charged with having attempted to cause damage to an
amount, would be not acquitted solely on the ground that
what was actually damaged was a lesser amount. The
important consideration with respect to the offence of
unlawful damage is that the accused should have caused
the damage intentionally – thus, unintentional
(accidental) or damage caused through negligence will not
suffice.
NARCOTIC OFFENCES
Offences in relation to narcotic drugs are regulated by the
Narcotic Drugs (Control, Enforcement and Sanctions) Act,
1990 (PNDCL 236). In addition, Ghana is a signatory to the
United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, 1988, and is obliged
to enact laws to implement the provisions of the
Convention.
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PNDCL 236 prohibits dealings in narcotics under various

headings
About 97 substances – narcotic drugs – are prohibited

under PNDCL 236. See sec 9 and the Schedule to the Act. Commented [SDQ223]: For the purposes of this Act, a
narcotic drug means any of the substances specified in the
Schedules whether in its natural or synthetic form.
The popular ones include: cannabis also known as Indian
hemp also known as marijuana also known as ganja also
known as wee also known as weed also known as pot also
known as “abonsam tawa”; cocaine; heroin; morphine;
opium and codeine.
Under sec 1 of PNDCL 236, it is an offence to import or
export a narcotic drug without a license issued by the
Minister of Health for that purpose. The penalty for the
importation and exportation of narcotic drugs is a term of
imprisonment of not less than 10 years
Sec 3 of PNDCL 236 prohibits the carrying on of business
in relation to narcotics and the penalty for doing so is a
term of imprisonment of not less than 10 years. Thus, it is
an offence to manufacture, produce or distribute narcotic
drugs without lawful authority. Then again, it is an offence
to undertake an activity for the purpose of establishing or
promoting an enterprise relating to narcotic drugs,
without lawful authority.
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The prosecution must establish not merely that the

accused cultivated plants for narcotic purposes, but also
that the accused had knowledge that the plant he
cultivated can be used or consumed as a narcotic drug or
that a narcotic drug can be extracted from it.
NYAMENEBA v THE STATE Commented [SDQ224]: The appellants who were
members of a religious sect had been growing “herbs of
life” for four years or more. They used the herbs publicly for
invocation, at their worship, for food and medicine. Upon
Sec 5 of PNDCL 236 prohibits the use of narcotic drugs report being made to the police against the sect, the police
investigated and found the herbs to be Indian hemp. The
appellants argued that they did not know at all that the
Thus, it is an offence to smoke, sniff, consume, inject into herbs were indian hemp. HELD: Ollennu JSC held that, While
ignorance of the law is no defence, ignorance of fact is a
one’s body or administer a narcotic drug on one’s body, complete defence. He concluded that, the appellants were
honestly ignorant of the fact that the herbs in question are
without lawful authority or excuse. It is also an offence to Indian hemp and as such, a plea of ignorance of fact which
under section 29 (1) of Act 29 is a good defence.
inject another person with or administer narcotic drugs on

another person without lawful authority. The punishment
for using narcotic drugs is a term of imprisonment of not
less than 5 years.
Sec 6 of PNDCL 236 prohibits the supply or purchase of
narcotic drugs. Thus, it is an offence to supply narcotic
drugs to another person, without lawful authority – this is
known as drug peddling. It is also an offence to buy
narcotic drugs without lawful authority. The penalty for
supplying or purchasing narcotic drugs is a term of
imprisonment of not less than 5 years.
It should be noted that PNDCL 236 does not only prohibit
dealing in narcotic drugs, it also prohibits the possession
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of narcotic drugs. By sec 2, it is an offence to have in one’s

possession or to have under one’s control, a narcotic drug
without lawful authority. The punishment for this is a term
of imprisonment of not less than 10 years. NB: possession
in law is different from the ordinary notions of possession.
Ordinarily, you may possess a thing without knowing or
comprehending its nature. However, in law, you do not
possess the thing unless you know the nature and quality
of the thing. So, in law, possession connotes not only
physical possession but knowledge of the thing possessed.
Therefore, to succeed on a charge of possession of a
narcotic drug, the prosecution must prove legal
possession – that is – in addition to proving physical
possession, the prosecution must go further to lead
Commented [SDQ225]: the appellant was convicted for
evidence to establish that the accused had the requisite possession of Indian Hemp. She contended that the parcel
was given to her by her boyfriend and was in the same state
knowledge. In other words, there must be an awareness till tore by the police. Held: As from 17 December 1963, to
sustain a charge under section 47 (1) of Act 64 the
of the nature and quality of what is possessed, namely, a prosecution must prove only possession with knowledge of
the nature and quality of the article possessed; there must
be an awareness that what is possessed is “opium or Indian
narcotic drug, since physical possession, without that hemp” or “residue from the smoking of opium or Indian
hemp.” Physical possession without that knowledge is no
requisite knowledge amounts to no offence. AMARTEY v offence.
Commented [SDQ226]: to prove the charge of illegal
THE STATE, BONSU @BENJILLO v THE REPUBLIC. possession of drugs under section 2 of the Narcotic Drugs
(Control, Enforcement and Sanctions) Law, 1990 (PNDCL
236) the prosecution had to prove that the appellant not
There are two types of knowledge. There is what is termed only had physical possession but also knew of the nature
and quality of the contents of the parcel, namely heroin
“implied knowledge” – one aspect of constructive because on the relevant authorities his mere physical
possession without the requisite knowledge would amount
to no offence. On the facts, the Court of Appeal was right in
knowledge is where the evidence establishes that the making those justifiable inferences in coming to the
conclusion that the appellant had knowledge that the parcel
accused ought to have known that the thing he possessed he possessed or had received into his possession contained
heroin
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was a narcotic drug. Then there is what is termed

“constructive knowledge” – a person will be held to be in
constructive possession if he has control over a person
who is in actual physical possession or control of the thing.
Therefore, there is no requirement that the prosecution
should prove manual possession or touch of the thing by
the accused. It is sufficient if the prosecution proves that
the thing is in the possession of a person over whom the
accused has control so that the thing will be forthcoming
at his request.
MUNKAILA v THE REPUBLIC
the appellant engaged a woman to take some substances
from Nigeria to him in Ghana. The woman was intercepted
by the police for which she led them to the appellant’s
house. When he was given the parcel, he sniffed them and
upon seeing the police, he dropped them. The substance
upon test was proven to be a narcotic substance and he
was convicted of possession of narcotics. He appealed and
argued that he had no possession of the substance. HELD:
A person was said to be in constructive possession or joint
possession of an object if he had control over the other
person in physical control of the article as to its disposal,
control or otherwise. However, the actual manual
possession or touch of the goods by the prisoner, was not
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necessary to the completion of the offence. It was

sufficient if the prosecution could prove that the article
was in the possession of a person over whom the accused
had control so that the article would be forthcoming if he
ordered it. Under section 148(1) of the Criminal Code,
1960 (Act 29) a person having possession of a narcotic
drug was in the same position as the person having
possession of stolen proper
It should be noted that sec 7 of PNDCL 236 makes
provision for special mitigating factors whereby a lesser
punishment may be imposed on the accused having
regard to the unaggravated nature of the offence and any
special circumstances relating to the offence or offender.
However, by Section 8, a recidivist narcotic offender is
liable to life imprisonment
Under sec 10, it is an offence to use property to promote
or facilitate narcotic offences. Indeed, possessing
property or the proceeds of property knowing that the
property or the proceeds was or were obtained or derived
from dealings in narcotics in Ghana or elsewhere, is also
an offence
- sec 11
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Then again, laundering proceeds from a narcotic drug

offence is prohibited
- sec 12
Indeed, property which has been used for the commission
of a narcotic offence is liable to be confiscated to the state
- sec 13
And property acquired with the proceeds from an illegal
dealing in narcotic drugs may also be confiscated to the
state
– secs 15-22
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LAW (Ghana Institute of Management and Public Administration)

StuDocu is not sponsored or endorsed by any college or university

NATURE AND SCOPE OF CRIMINAL LAW

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The American Law Institute’s Model Penal outline

TRADE ASSOCIATION v AG FOR CANADA, Their Lordships

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the State, in which case the argument moves

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and was subsequently convicted of stealing. Held the act

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From this, a criminal proceeding is where the proceeding

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engage in fornication. From this, it can be deduced that

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Crimes are also classified according to their gravity and the

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The next in line in terms of gravity are first degree felonies

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preparation without the authorization of the Minister for

 Nulla poena sine praevia lege

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This is to the effect that, an act or omission to act is only a

DEBRAH v THE REPUBLIC

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contrary to custom. Moreover since the offence

THE RULE AGAINST DOUBLE JEOPARDY

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 Punishment is inflicted on a person found guilty of an

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therefore punishment cannot be imposed before the

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punishment must fit the crime – i.e. the moral

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consequences of punishment are irrelevant to its

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trial circuit court for the first offence of possessing

court must avoid incarcerating young offenders’.

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b. Specific Deterrence: This seeks to discourage the

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3. Further, the utilitarians argue that we are all guilty –

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innocent man, by pretending that he is guilty. To this,

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was at fault or whether he is morally blameworthy –

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The two elements must coincide in respect of the same

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knowlegde of the nature and quality of what he

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include situations of duress or coercion or where a person

– that is, an act which is done by the muscles without any

concussion or whilst sleep-walking. However, an act is not

Still on the point of voluntariness, sometimes the accused

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factors, such as a failure to take a prescribed drug (non-

Hennessy Commented [sq22]: the appellant was found by the

 other times, a duty is deliberately assumed by a

person in circumstances recognized by the law as

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