ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW
AND SOCIAL SCIENCES

MODULE: LLB 3 /JI. I 31

GENERAL PRINCIPLES OF
CRIMINAL LAW 1

Mr Simon E. Kulusika
LLB (Khartoum), LLM (Leipzig)
First Edition 2009
©ZAOU
ISBN
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DEDICATION: TO ALL THE STAFF IN THE PRODUCTION UNIT

OF

ZAMBIA OPE.N UNIVERSITY

FOR THEIR·EFFORTS IN PRODUCING NUMEROUS' COPIES

OF ALL PRESCRIBED MODULES

TO SATISFY THE NEEDS OF THE STUDENTS

OF THIS UNIVERSITY

~/ IS!

·---------------···•"''·
 PREFACE

The module we are now providing to you is a retised edition of Module: U 3 published in 2005.
That Module( of 2005) has not only been revised, but also re-arranged in-order to make it more
consistent with recent changes in the law, substantive and accessible to students and the general
readers.

It is to be ob~erved that Module: U 3 supplies a body of materials on general principles of criminal

law, with some emphasis on the criminal law in Zambia. Its main source is the Penal Code, Cap 87,
and other statutes and Acts of Parliament, for the time being in force(retevant to criminal offences).
Module: LI.3 covers matters such as the elements of crime (offence), punishment, Sentencing
principles, institution of criminal proceedings, parties to crime, inchoate offences, general .
defences, topics which feature greatly In undergraduate criminal courses in most universities, with
some variations here and there. A new chapter has been added dealing with the concepts of
international crimes: burning issues for the International community, and it is bound to remain on
the world agenda for some time to come.

The objectives of each chapter and the accompanying key points must be carefully considered and
related to the legal issues under discussion.

For a better utilisation of this module, the· student and the general reader are urged to read recently
decided Zambian cases and cases from other jurisdictions. For the student, he or she needs also to
read materials published by criminal law commentators and writers to supplement the deficiencies
in this module. She or he should remember that perfection is achieved through constant and careful
re\1ision of ones work. Modules cannot do more than give hints as to what are the intricacies of the
,criminal law. Those who aspire for glory will realise IT through HARD WORK.

SKULIJSIKA

LECTURER - LAW

ZAOU

October 200.9
 ACKNOWLEDGMENTS

The Zambian Open University{ZAOU) - the publishers of this module - and the author would like to
acknowledge and thank all publishers and authors whose works have been cited in this module.
Such a citation indicates that those works have been made reference to in the preparation and final
drafting of the module. We have endeavoured to observe citation and reference making guidelines
pertaining to copyrights materials. Any inadvertent omissions or excesses in observing those
guidellnes Is unintentional.

We wish to express our thanks to all those who have contributed positively to ensure that the
revised and new look Module Module: LL 3} is published and made available to the ~tudents and the
general readers in the shortest possible time.

w~ ~=-~ and •lll"'drm from our students and 1hoJa,w-. mav_,-.acl . ~ : f LL a.

~.asw/ or ••••,_·MIIY be addressed to ZAOU, Produc:Udn u.; --~~ -~ 3~# ....,._.,
Z.M~. Or C/0 tM ■uthor UJtin, lAOIJ'• address.

Any errors or other shortcomings regarding this module, in terms of substance and style, remain the
msponsibllity of the author.

S KULUSIKA

ZAOU
Table of cases

R v Alidia (1959) -·· 105

Alubish'-1 (1976) 30

R v Amuli (1.953) 110

Banda v The People (1973) 108

DPP v Brown (1980) 25

Chamoto v The People t 1980} 28

R v Chibale H. {1964) 113

fhilomba v The People (1974) 68

'
Chilufya (1978} 26

R v Chinkupe (1958) 110

Chipata {1970) 25

Chishala (1975} 29

Chomba (1975) 31

David v The People 35

R v Dhlovu(1954) 11

R v F C (A Juvenile) (1941) 103

Jackson v R (1969) 118

Kaambo (1976) 26

Kalunga (1975) 31

Kalyata (1972) 28

The People vKatongo(1974) 12,26

Kogo {1949) 25

longwe {1978) 27

Lungu v The People (1972} 24

Mass-.issani (1977) 12

Mphumeya v R (1956) 13
w

R v Mubanga Sakeni (1959) 11

"','he People v Mudewa (1973) 116

Muke {1973) 31

Mulonda v The People (1978) 107

Musonda and Chlmimba (1979) 30

Mvula {1976} 29

The People v Mwaba (1973} 104

Mwape v The People )1976) 62,64

Mwenya (1973) 28

Mwiimbi v The People (1986) 12

Ndumba {1975) 26

Nkoloma {1948) 26

Nso'kolo (1940) 25

P:askazia D/0 Kabaikye (1954) 61

Patel's Bazaar (1965) 48

Phiri v The People (1980) 24

Phirl v The People (1970} 27

Sachingongo (1980) 30

Simoni v R (1962) 120

Siy~uya (1976} 27

Sondoyi (1973) 31

Twelve and Two Others v R 57

R v Wolomosi Phiri (no. 1} 105

ii

------------"'1!1"'1!19W(!/(t··,·,,
 1,-:J•1iA:0;dtf' '="'

GroupB

Abdul Hussain and Others (1999} 112

R v Adomako {1995} 48

R v Ahluwalia (1992} 94

Akayesu (1998} 128

Att Gen's Reference (no. 1 of 1975) (1975} 57

Att Gen's Refernce (no. 3 of 1994) (1997) 52

Bailey (1983) 107

OPP v Bailey (1995) 102

Beckford (188) 101,119

Bratty (1963) 86

Burgess (1991} 106

C v OPP (1996} 83

Calhaem (1985) 63

R v Dear (1976) so
R v Deller (1952) 39

Dieschmann (2003) 111

Dudley and Stephens (1884} 122

R v Duffy (1949) 93

English ( 1977) 63

Geddes {1996) 69

Hennessy {1989) 85

Howe (1987) 98

Kemp {1957) 85

R v Martin (2007} jjj 34,113

 Majewski.{1977) 89,109
.
M'Nagnhten (1843) 84

Quick (1973) 85

L R v Speck (1977) so
Stewart
.
~n~ Schofield (1975)
,. . ~ '•.
59

Tadic(19~r~t/:•; 127
,. • • > >;1,;.~ ';.
··Tosti.and Whit~1l997) 69
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 CONTENTS

1 1--14

' t
The purposes of criminal law 1-14

Objectives 01

Key points 01

The nature of criminal law 1-02

The development of criminal law 2-03

Definition of crime 04

Wh<:> is a criminal'? 05

Cla,ssification of offences 5-08

Sources 8-12

2 15-36

Punishment 15-36

Objectives 15

Key points 16

Punishment 16-21

Senterice 21-34

3 37-53

Criminal Uability 37-53

Objectives 37

Key points 38

Actus reus 38-44

Mens rea 45-48

4 54-64

----------"""""''
Diminished ,responsibility

Necessity

Duress by threats

Duress of circumstances

Self- defence 100-102

8 123-128

International crimes 123-128

Objectives 123

Key points 123

What are international crimes? 124

______________
, "'/" ,,,,
 1

THE PURPOSES OF CRIMINAL LAW

.
1.1 OBJECTIVES

1- At the end of the exercises in this chapter the student should ;be able to :
l "
• Define crime.

• Describe Criminal Law.

• Explain the role of the substantive rules of the Criminal Law.

• Distin.guish Criminal Law and Criminology.

• Appreciate the distinction between permissible and prohibited conduct.

• Understand the different crime classifications.

• Analyse the various principles of criminalisation (of conducts).·

Keyooints

The Criminal Law consists in a series of rules designed to control

unacceptable behaviour. Its function is to specify a set of principles, rules

and standards for behaviour that is deemed permissible or not. The rules of

Criminal Law are backed up by sanctions. For example, she who steals must

be convicted of theft and sent to prison for a maximum period of five years.

The Criminal Law is an instrument of social control.

L2 THENATUREOFCRIMINALLAW

Criminal Law can thus be seen as a series of prohibitions and duties; behaviour that

the state considers to be unacceptable or action that the state demands. Whilst it is

possible to give a technical definition of crime, in terms of the elements that go to

make up an offence, or the procedure followed in court in order to secure a

_ _ _ _ _ _ _ _£!:,!/',
 ,,•,JiiJ/Jd"',

conviction, it is much more difficult to define the concept of crime in theoretical

terms. In so~ senses the answer would sound- banal. An activity is a crime because
«

the state; has labelled it as a crime. On the basi~ if the state decreed that it was an

offence for meil to grow beards, that action would become a crime but they would not

perhaps accord with our innate sense of what ought to be c ~ and what should

not

1..3 THE DEVELOPMENT OF CRIMINAL L~.,

The state, through parliament,

. ·'·'
criminaHsed behaviours which it deems as criminal, or

deserved to be prohibited. and punished. There are at least three

. ; .
principles that

underpin the development of the Criminal Law through parliament. The three

. principles may be summarised as follows:

The first is that; in drafting criminal offences, the state should strive to strike the right

balance between the principle of minimum criminalisation and social defence. The

principle of minimum criminalisation is. that there should be no more criminal

prohibitions than are strictly necessary for society to function fairly and effectively.

The social defence principle suggests that criminalisation is justified to some extent

by the risk of harm to society's collective interests, or to the wellbeing of individual

citizens, that ,could be caused by an activity continuing unchecked.

Second, the criminal law should be, and should be perceived to be essentially fair in

its content and operation.

2
'Third, where criminal offences are created the principle of 'fair labeling' provides that

they·· should distingµish properly between the types of harm prohibited and the
.
elements to be established.

Whether or not an activity is criminalised will depend on a number of factors such as

· the harm caused, the bann risked; whether or not criminalisation will simply produce

more crime; the social utility of the activity; the need to provide a moral lead; or the

threatto·econornic and social stability posed by the activity.

To some extent criminal law can be seen as an embodiment or reflection of a society's

mores. If a particular activity is regarded as morally offensive within a particular

society; it may be prohibited by the criminal law and stigmatised by punishment, even

though, in statistical terms, there may be only a very small number of individuals who

would want to have sex against the order of nature.

The Criminal Law considers certain behaviours as crimes, but treats other behaviours

as not crimes. It also treats treason or murder as serous crimes and with psychic

assault as minor crimes. It allows members of a society to regulate their own

conducts. This it does with fair warning that if they. conduct themselves in a

particular way injurious to otbe~ they will commit a crime and expose themselves to

legal puni8hrnent. That the criminal law cannot be produced and applied in an

arbitrary fashion.

J'.Sf'.F',
1.4 DEFINITIOJi ~F CRIME
'
TI1ere is no agreed definition of crime. The most quoted definition of Paul Tappan, a
.
lawyer and sociologist will be embodied in a box for quick reference by the learner:

It can be claimed that a crime is 'conduct forbidden by the state,,.i;p].d to which a

,:"'.'."i!t.-,

punishment has been attached because the conduct is regarded by the state as being

criminal'. Paul W. Tappan defined a crime as an intentional act or omission in

violation of criminal law, Statutory and (case Law), committed without defense or
'
justification and sanctioned by the state as a felony or misdemeanour - Paul W.

Tappan, Crime, Justice and Correction, Mc Graw-Hill (1960), p. 10._

The preceding definition of crime raises a number of legal issues regarding acts which

are or should be criminalised. Firstly, the definition of crime appears to indicate that

criminal acts or omissions are committed by reasonable persons. That the crime must

be intended and the intent to commit the crime has direct link to the act or omission.

That the crime was committed without excuse or justification (e.g., self-defense or

provocation). Most important, the definition tells us that people, in general, have

capacity to commit crimes. Capacity should be understood as meaning absence of

any legal or psychiatric disability, such as lack of sufficient age, duress or insanity. In

short, crime involves violation directed against another person or property, by an act

or omission, which the criminal law prohibits and so carries a legal prescribed

punishment.

4
 1.5 WHO IS A CRIMINAL?

There is no straightforward answer to this question. The proper meaning of criminal

is more complex than one may think. Froni the definition of crime, one can say that a ..

l- criminal is someone who has violated a Criminal Law.

One may also ~lassify a crimiml based on the crimes he/she has committed; murderer.
' . .;·:,, ... ·.

rapist, burglar, robber, thief, etc. , but there are a number of defects with this-kind of

classification. For example, the classification ignores the fact that the crimes for
. ' \ . . ,-:,·,• ...·.
which people are arreste~ charged~ prosecuted and convicted arc not the same as the
. . ·'· .... ,•.

crimes they actually committed. Even among criminals who are said to have

committed similar crimes, say of theft, there are differences among them. These

differences may be in respect of (a) demographic characteristics, such as age, sex and .
. . {· ....

marital status, (b) educ~tional status and (c) crltrunal career patterns. Criminals do

not consider themselves as criminal. Instead they perceive those who are pursuing

t.hem as criminals.

It would appear that it is important to use the word crimina] sparingly. If used, it

should refex· to those individu~s who have been adjudged as offenders by the courts
,:

and exclude those who have been lucky and escaped prosecution.

1.6 CLASSIFICATION OF OFFENCES

The Criminal Law does not provide description of crimi;s as does sociology or other

social sciences.

·"~'flr:r:97·
 'f:S:!I!!'_ _ _ _ _....,....,....,....,_,

Here attempt is being made to adopting the sociological description of c~es in.order
_/ ~··

to introduce the types of crimes that one may encounter in practice. These include
"
(1) street crimes; (2) crimes against the person; (3) public order and morals offences;

(4) crimes perpetrated by persons who are related to one another, or other

acquaintances; (5) enterprises and occupational .crimes; and (6) domestic crimes

(mainly directed against women). It is noted that the criminal justice system deals

frequently with offences against the person and property, while other offences such as

domestic violence seldom enter the formal criminal justice system. This is beginning

to change the world over as the victims of domestic violence have begun to take

courage and report these offences to the police.

Other types of offences which have not entered the criminal justice system, include

(i) organisation crime, or crimes committed to advance business, political or personal

intt>.rests of executives, (ii) white-collar crime, or crimes in which business executives

and other professional persons (e.g. lawyers, accountants, bankers, doctors, etc),

manipulate their professions for personal gain; (iii) blue-collar crime, crimes

committed by workers or employees against their employers for private gain. These

crimes are serious, but the general principles of Criminal Law do not apply to them,

hence they are absent form the Penal Code. However, attempts are under way to

criminalise these unlawful acts by including them in special acts of Parliament.

Crimes (or offences in general) may be classified in accordance with the procedure
that may be followed when instituting proceeding in respect of anyone of them as

required by law. Offenders may be summarily or on indictment tried by a court with

jurisdiction. Summary offences are the less serious crimes which can be tried in the

6
 •·
local courts or magistrate's courts. An example is common assault, such as spitting at

a police officer in the execution of his dutyt or infraction of Road Traffic Regulations .
.
Serious crimes, such as homicide or aggravated robbery involving the use of a firearm

are tried by the High Court.

Offences are also distinguished by reference to powers of arrest. Arrestable offences

- with or without warrant - are the most serious of the offences. They may be triable

before magistrate courts or the High Court.

The Common Law distinctions of offences as felonies or misdemeanours have been

swept away by the English Crlmina.1 Justice Act 1967. But these offences are still in

the Penal Code of Zambia. Felonies (serious offences) are treated seriously under the

Penal Code. For example, doing 'grievous harm' to another person is a felony, and

the defendant is liable to imprisonment for seven years (section 229 of the Penal

Code). It is also a felony to 'attempt unlawfully to cause the death of another'. The

penalty for tllis offence is imprisonment for life. While the offence of common

assault is a misdemean.our and he or she who is convicted of this offence is liable to a

maximum of one year imprisonment (section 247 of the Penal Code).

Further, crimes may be classified according to how society perceives them. A crime

may be defined as inherently 'evil' (the Latin mala in se). The mala in se -- mala

categories of crime includes murder, rape. While other crimes are defined as crimes

without reference to 'evil' and these crifues are designated as crimes (the Latin mal

prohib:ita), such a5 a motorist driving at 80 KPH in a zone of 50 KPH. It is an

example of a malum prohinitum.

,,,w,,,\\l:Wlf';i;'',;,,
 \'/3,.&
_ _ _ _ _ _ _ _ _ _ _ _ _ _,

There is no agreed upon classification of offences. What has been suggested is just a

guide to the student. The student should pay attention to Penal Code in its approach

to the varlet'/ of offences it deals with. The student should consider whether or not

ti~e Penal Code approach is the most desirable, or there is room for improvement in

orde:r to strengthen the fight against crimes in Zambia.

1.7 SOURCES OF CRIMINAL LAW

The main sources of Zambia Criminal Law has been the Penal Code which was

adopted for Northern Rhodesia in 1931. The preceding proposition is based on the

statement of Professors 1\Tdulo and Hatchard that 'the Pena\ Code remains the prime

source of Zambia Criminal L4W. They also acknowledge customary law and others as

'•significant' sources. The better view is that the English Common Law

complemented by African Customary Law constitute significant source of Criminal

Law in Zambia. While the present Penal Code which derived its origin from 'moves

in English Criminal Law' has become the primary formal source of the Zambia

Criminal Law. The foregoing claims should be reformulated to take account that the

constitution of Zambia is the supreme law of the land. It should constitute the

principal source of Criminal Law.

Statute (Penal Code):

In Zambia the Ir»ajority of offences (or better crimes) are embodied in, defined, or

regulated by statutes. Among these '.statutes

·
the Penal Code is the principal crime

:re~ating statut~
This is the case for a number of reasons: The Penal Code has created a ntmlbe;r of

new crimes. It contains comprehensive statutory provisions in respect of crimes

.
which were formerly dealt with by the Common Law. The new crimes created by the

Penal Code include insulting the flag (section 68), the defamation of the president

(section 69), recasting the offence of affray wider the amendment_ of 1994 (section

88), the forfeiturt? of official uniform which is a subject of an o:f;fence (subsection 7 of

section. 82), punislullent for mmder (section 201) and others. Although the Penal

Code deals effectively with most offences which the legislature deemed appropriate

for punishment, some of the provisions of the Penal Code need to be re-examined to
remove certain ambiguities and lack of precision. And it is only through difficult

process of interpretation by the courts that those ambiguities could, to some extent, be

overcome.

Owing to the complexity of the Penal Code and the increasing number of other

enactments of Parliament dealing with specific offences~ such as corruption, the

student should not confine herself or himself to the Penal Code, but consult other

statutes as well.

The student should also take .into consideration certain rules regarding statutory

crimes (i.e., crimes created by statute). For example, where a statute creates a new

crime and also lays down specific procedure for its punishment, the procedure at

Common Law or under A.mean Custmiiary Law are excluded. This means that the

student should try to cope up with new amendments affecting the Penal Code.
.cf''~'1'.\:;.··

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 '"' @%/J/1_ _ _ _ _ _ _ _ _ _ _ __

Delegated Legislation

Parliament by an act may delegate to Ministers or Local authorities the Power to make
-
regulations, by-laws and prescribe penalties for their violation.

Certain regulations or by-laws have assumed increasing importance nowadays. ;For

example> the Road Traffic Ac~ is an important Act, because under it the concerned

authority can make regulations dealing with matters such as the efficiency of brakes,

lights and road worthiness of the vehicle. Motorists who appear not to comply with

those regulations are subject to prosecutions. These regulations> by-laws and others

constitute secondaJ;y sources of the Zambia Criminal Law.

Customary Law

Customary Law is another subsidiary source of the Criminal Law in Zambia. Certain

aspects of Customalry Law will be recognised by the courts in Zambia unless the

Penal Code expressly or by implication excludes the application of such aspects of the

Customary Law to a given fact situation. This is illustrated by the case The People v.

Katongo, High Court, 1974, although its outcome seems to contradict the decision of

the court in The People v. Nkhoma, High Court, 1978. In the case Katongo, the facts

were that the defendant Albina F. Katongo was charged with bigamy ,for marrying

Dennis Siwale while her first marriage was not dissolved. The question before the

court was whether 'a customary union is not capable of being a valid marriage,

whether the husband, is alive or not~:- The court answered this question in the

affirmative as the acquittal of the defendant could confirm. In the other cal:le the

defendant was convicted as charged although the facts of the two cases were not very

dissimilar.

10
 To appreciate the relation between Customary ~w and the Penal _Code the student

must consult the cases: R. v. Mubanga and Sakeni (1959) 11 R & N 169; R v. Ndhlovu

(1952) 5 N R LR 298. The cited cases illustrate the tension between tradition and

modernisation. But one thing may not be igno~ i.e., A criminal statute is usually

born ou:t of shared social nonns. While court decisions may sometimes accord with

citizen expectations and at other times the decisions may be contradictory. What is

· required is that statutes and court judgments should 'minor social values'.

The ·enac1ment of statutes that create more crimes may raise the question of

complexity of the law. That may be an issue, but the most compelling is whether

there are too many crimes - created by statutes - and the need has come to put a halt

to this practice of the creation of crimes. As society becomes more sopbistica~ the

more there will arise malpractices which must be curbed. In the circumstances a new

crime must be created to deal with the new peril.

R v. Ndhlovu (1954) SN RL R 298 (High Court of Northern Rhodesia)

Ndhlovu was accused of the murder of his wife. She was assaulted by the accused for

insult she offered to him whilst drinking- beer. It was claimed that under African

customary law, the use of the insulting expression by one's wife would be a sufficient

insult to warrant the chastisement of the wife by the husband and such chastisement,

if reasonable, would be~lawful. .-

>

For the present purposes if the act of the accused was lawful, could it be assumed that

under such circumstances the African customary law was applicable in criminal

11
 ,,,:,itffi,'':

proceedings. The court stated that 'even in respect to those civil matters between

natives where it is provided that the courts may look to native Customary Law, this is

subject to the qualification that such native Customary Law must not be repugnant to

justice, morality or good conscience or incompatible with any legislative provisions in

force in the territory.

That the accused's punishment would take into account whether the chastisement of

the wife could not be treated as amounting to an unlawful act, even by the standards

of African customary law, to warrant the conviction of the accused of manslaughter.

The court found that the accused's assault on his wife was not moderate and convicted

him of manslaughter.

'The People v. Katongo (1974) ZR 280 (High Court for Zambia).

The accused Altina Florence Katongo, having a husband, Alfred Chibesa, then living.

she went through a ceremony of marriage on 28th December, 1973, with Dennis

Siwale, which was void because it took place during Chibesa' s life. The first union

was a customary one, but then they married under the Marriage Act, Cap. 211.

The court argued that a customary union is not a marriage as recognised by the. Law

of England~ which marriage is a contract for voluntary union of one man and one

woman to the exclusion of all others until that union is terminated by death or is

dissolved or annulled__by statute or by the decree of a competent tribunal. This is the

type of marriage provided for under Cap 211 '. The accused was acquitted

accordingly.

12
ILLUMINATING CASES

Customary Law

MPHUMEYA v. R (1956) R & N 240

The appellant, a N goni woman married under African Customary Law to her husband,

the complainant, who was a Chewa man, was convicted in a subordinate court of the

theft of certain money, the property of the complainant. At the time of the theft the

parties were living together, and although at that time she was the complainant's only

wife in fact, by the African Customary Law, applicable to their marriage, their union

was potentially polygamous. The appellant appealed against her conviction. The

question before the appellate court was whether or not the English Common Law rule

that a wife was not legally capable of committing a theft on her husband's property,

while she continued to live with him, applied to the, special circumstances of the
. ,·,.

appellant's case (the rule is contained ins. 271 of the Penal.Code, Cap 87).

The court held that:

'To extend a dispensation, such as that under which in England a wife is regarded as

incapable of stealing form her husband, to one kind of marriage and not to another is
in principle not a very satisfactory procedure . . . There is more justification for this

dispensation in the case of a monogamous marriage than in the case of a polygamous

marriage because it is easier to regard a husband and wife's property as property held

in common in the case of a monogamous marriage than in the case of polygamous

marriage. Be that as it may, the court doJs· not feel that it would be justified, in a case

such that now before it'. The court dismissed the appeal.

13

~)•!"''
 <+:&'

REVISION QUESTIONS

• How do we distinguish between civil and criminal wrong?

• Why does a state have the institutioii of Criminal Law?

• What is the legal definition of crim~?

• The words felony and misdemeanour as used in the Penal Code, Cap 87, can each

one be considered as a tenn of art?

• What is meant by a career criminal? And what is a white-collar crime?

• How does the law classify offences? (Different Legal systems adopt different

classifications. use Zambian classification).

• Make a list of possible arrestable offences (for which law enforcement agencies

do not have to have a warrant of arrest).

• What is meant by formal source of Criminal Law?

• What are the sources of Criminal Law in Zambia? Give examples supported by

statutory or other provisions of the Law.

• Does Case Law have a role to play in the development of Criminal Law in

Zambia?

;..,._

14
 2

PUNISHMENT

2.1 OBJECTIVES

At the end of this chapter, the student should be able to:

• Understand the rationale of legal punishment.

• Differentiate between the various theories that justify· the imposition of legal

punishment.

• Display sufficient knowledge of the types of punishment the. courts ·in Zambia

may inflict on a convicted offender.

• Define the concept of retribution and prevention as the two basic aims of legal

punishment.

• Describe how rehabilitative punishment is supposed to work to achieve its

objectives.

• Explain the pHrposes and principles of sentencing.

• Analyse the advantages of community service, absolute and conditional discharge.

~·-.

15
 ,.-··,e'iz@t',,- - m"·

Kev,wnts
Legal punishment is more than the irifliction of pain and the suffering of certain

unpleasant consequences.

Courts in Zambia are authorised to inflict legal pubishment as prescribed by various

criminal codes, statutes and other le&islation.

Legal punishment has two encompassing ~ or objectives: retribution and prevention.

The main purpose of restributive Legal Punishment is to inflict pain and suffering on the

offender who harmed another person in order to give that offender his or her just desert.

Preventive Punishment aims at (1) deterrence : that is to deter people from committing

crime in the future; (2) incapacitation: that is the prevention of certain offenders (e.g.

clifilers) from future crime; and (3) rehabilitation: that is treatment of the offender in

order to reform him or her so that they will not commit offences~ instead will become

law abiding citizens.

As society advances, it becomes necessary to rethink the limits of legal punishment and

to devise new rules defining the way courts should sentence convicted offenders. This

has entailed a shift from incareeratin to probation and the imposition of community

service (as specific condition of probation).

2.2 PUNISHMENT

Legal punishment, under a constitutiooal democracy, must be prescribed by Law. In

suggesting answers to the question, 'What is punishment?', Professor Ndulo (1994)

says, 'Punishment is simply the infliction of some form of pain or deprivation on the

16
person of another, in this instance:- by the Criminal Justj.ce System'. He adds,

'familiar forms of it include whipping, imprlSC?nment or the payment of .fines'.

Other writers;' both past and present. view legal punishment as a means of protecting

the imiocenf rather than the improvement of the criminal. This is seen as necessary

for the prevention; discouragement of crimes as well as the attainment of pt;:nitence

and improvement of the guilty.

From the foregoing, we may claim that the chief object of punishment is the

prevention of crimes, protection of society, restoration of imbalances occasioned by

the criminal act(s) and the rehabilitation of the criminal. These propositions can be

used to construct several theories of punishment: a retributive theory of punishment,

the deterrent and rehabilitative theories of punishment.

The term retribution has several meanings. However, for the present purpose, it will

be used to mean to give the offender that she/he deserves for the violation of the rules

of the society.

The retributive· theory may generally be summarised as requiring that 'the proper

amount of punishment to be inflicted upon the morally guilty offender is that amount

which fits, matches, or is proportionate to the moral gravity of the offence'.

The adoption of the rehabilitative theory as an ideal for addressing certain peculiar

situations of certain offenders has led Francis Allen (1981) to state that 'one

immediate consequence of a rehabilitative regime is a drastic enlargement of state

17

,•.JfWffi[WJFf;::,;
 ~·,; i<rd;t"·~-

concerns. The. state's interests now embrace not o~y the offenders conduct but ... his

soul, his motives, his history, his social environment'.

In simple words, Francis Allen seems to say that conviction and sentence imposed on

offenders must aim at reforming them, ~ make them conform to the accepted norms

of the community in which they are·members. The conviction and the sentence must

strive to improve the character of the offender while he or she is serving the prison

tenn.

The rehabilitative theory of punishment calls for the collabQration of the courts with

the prisons service in addition to the willingness of pie administrative agencies

concerned. It means that the success of the programme demaµds active involvement

of the state.

Retribution

The term retribution simply means giving the offender what he/she deserves. But

other meaning of this term is that it strives to make the offender to 'pay back' for

what he/she had done to another person or the society. Or it may mean that by

punishing the offender the soc;iety is retaliating against that wrongdoing.

It may be said that the retn'butive theory looks back to the crime and the offender is

punished because of the crime committed regardless of the seriousness of the c.rime.

The infliction of punishment on the offender may be viewed as a kind of retaliation or

vengeance. That is to say that punishment satisfies the society's desire to retajiate or

18
 avenge against the perpetrator of a crime. And to avoid indiscriminate retaliation

which may lead to disorder; it is the state that effects the vengeance on behalf of the

victim of a crime. That public vengeance is desirable and socially acceptable. This

1 line of argument finds no support among modem commentators in the field of

Criminal Law.

Here it is claimed that the offender is punished because the public or the victim or his

relatives disapproved of the offence committed. And it is thought fit to inflict·. some

punishment on the offender as a sign of serious social denunciation, i.e., the judgment

of community condemnation. This sentiment was reflected in memorandum of the

Royal Commission on Capital Punishment in 1949. It reads, in part, 'Punishment is

the way in which society expresses its denunciation of wrong doing and, in order to

maintain respect for law, it is essential that the punishment inflicted for grave crimes

should adequately reflect the revulsion felt by the great majority ofcitizens for them'.

Another writer says 'denunciation theory can also serve to educate the public ,by

reaffinning social values and reinforcing inhibitions against crime'.

Deterrence

Concurring in the opinion of the court in the case Furman v. Georgia, the United

States Supreme Court 1972, Mr. Justice White says ' .... Most important, or major

goal of the Criminal Law - to deter others by punishing the convicted criminal --

would not be substantially served where the penalty is so seldom invdked that it

ceases to be the credible threat essential to influence the conduct of others. For the

present I accept the morality and utility ofpunishing one person to ift,fluence another'.

19
 "cUliliU&&_ _ _ _ _ _ _ _ _ _ _=

Here the judge is refeni.ng to the deterrent theories of punishment regardless the fact

that he also refers to '.morality' and 'utility' of punishment.

Un,1.er this type of the'ory, the aim is to discourage offenders from committing a

secom..\ or a third offence. Here the aim is that the experience of punishment will be

so unple..lSallt that the offender will not repeat the commission of offence bearing in

mind that ht.~ had gone through a rough time while serving the jail tenn. The task of

the court inflictfog the penalty is to look to the future and select the most appropriate

sentence which wUl impact positivt.~ly on the offender and make him think twice in

case he ventures to commit an offenc'e. However~ there is no strong argument to

support the contention that after a first c,~:mviction, the offender is forever deterred

froµi committin.g another offence.

Educative Deterrence

By inflicting severe punishment on offenders, the members of the community become

aware of the dangers of committing offences. Over a period of time, this awareness

of the severity of punishment works on members of the community and makes them

refrain from committing offences. It creates what a writer refers to as 'unconscious

inhibitions' not to commit crimes and this serves to educate the public, and enable

them to appreciate the distinction between good and bad conduct. If someone is

severely punished by stoning to death for adultery, the public become aware that

adultery is heinous their will, will be strengthened so that the habit of not committing

adultery is valued, and the sense of apprehension that adultery will lead to stoning to

death will deter them from committing that offence. The reverse may be true. if

adulterers are allowed to go free as in most societies - except Islamic ones - having

sex outside the matrimonial home will not be construed as an offence.

20
 The immediate implication of the rehabilitative theory is that the imposition of

sentence on the criminal does not concern itself with seriousness of the offence, but

·L
with the condition of the offender. The underlying assumption is that criminals are

redeemable although there is no evidence to support the assumption. As a resu.14 the

rehabilitative theory has lost some ground. The demand is now to offer treatment to

specific categories which have revealed some prospects for success and in the

majority of cases conviction and sentence should he based on the theory of 'just

desert'.

The rehabilitative ideal seems to suggest that criminal behaviour has its roots in

individual shortcomings including bad up~ringing. That to reduce the. rate of

criminality, society has to treat those shortcomings. But recent research has shown

that crime is the result of socio-economic, political and environmental interactions

rather than individual deficiencies. In other words orie may find a cure for a disease,

but that cure may not be suitable to curtail crimes.

2.3 SENTENCE

An accused person who is rough before a court may be convicted or acquitted. In the

latter situation he will be a lucky man to have escaped public condemnation. In the
former, he may be sentenced to any specified or unspecified term of imprisonment.

The reading of the Penal Code reveals that the legislature has not only created crimes,

but also sanctioned certain penalties which must be imposed by means of sentence.

Under the Penal Code, the courts in Zambia have a range of sentences to .impose on

convicted persons. For minor offences the courts have the discretion to grant absolute

21

~ _,}<';'{'>'·
 ~ i'<,jfff,/;i,1""

discharge or conditional discharge, where it is in the opinion of the court, having

taken into account the nature of the offence and the character of the offender, that it is

inexpedient to inflict punishment or make a probation order (s. 41 of the Penal Code,

Cap 87). The courts have also the discretion to impose fmes instead of sending

offenders to prison. The amount of fines may be fh~.ed by the legislature, or where it

is not fixed .the courts may impose such fines as they consider fit under the

circum.stances.

,.

1n cases involving serious crimes, such as theft, assault occasioning actual bodily

~ burglary, etc., the convicted offender may suffer a sentence of imprisonment.

The length of the sentence . will depend cm

'• :"
the heinousness and how the crime might

have been committed. In determining the length of sentence, the court may take into

consideration any mitigating or aggravating factors, in addition to any extenuating

circumstances as may transpire from evidences advanced by the defence or

prosecution.

Further the courts may impose death sentence, imprisonment for specified terms, or

community services, forfeiture, payment of compensatio~ deportation, and any other

sentence provided by the.Penal Code or by any other written Law (s. 24 of the Penal

Code, Cap 87).

Judges and Sentencing

In most jurisdictions courts seem to apply a combination ofpuiri:shmcnt thcoric:.i -when

sentencing convicted persons, except where the statute fixes the sentence in which

case the trial court cannot exercise its discretion. In these jurisdictions the courts are

22
 free to inflict whatever sentence they deem appropriate below the maximum

prescribed by Law.

In these jurisdictions different judges impose different sentences for different reasons,
-•
•
though one can glean two categories of judges, some trying to base their sentencing

on the deterrent theories, and a second category of them relying on the desert theories.

At the same
.
"';.
time one can detect a tendency of some other judges towards preferring

the rehabilitative theories rather than the other theories referred to above.
. ;•.
In all these

instances there is lack of consistency in sentencing within the same c_ategory. Iµ some

cases this inconsistency can be seen in cliffer:e11ces in sentences in cases where the

facts are almost alike.

It is p.ot wise to say which theory of punishment is the ideal in promoting justice for

convicted persons facing possible longer or heavy sentences. This seems to be the

case where emphasis, nowadays, is on the imposition of exemplary sentence in order

to deter the offender or others from committing of.fences. While the exemplary

sentence may be welcomed by the society, if not carefully applied may lead to

excessive sentences and disparity in the imposition of sentences in certain situations.

However, such disparity may be curtailed by guidelines to be issued by the Chief

Justice, or the Law association of Zambia in conjunction with the Supreme Court.

The guidelines should indicate what criteria courts (magistrates' courts) should apply

in detetttiining the level of sentence. The guidelines should also stress the need to

promote consistency in sentencing, and the effectiveness of sentencing in preventing

re-offending. Such guidelines should be of general application as it may not be

feasible to devise separate guideline for the different offences under the Penal Code.

23
 As regards criteria, there are several options, available. But one suggestion may be

that the court should take into accoun~ the manner in which the offence was

committed, its seriousness in the view of the public, the character of the offender and

his/her behaviour during the trial.

••
1
After the foregoing introductory discussions, we now proceed to examine certain

principles of sentencing. You will realise that we arc spending considerable tµnc on

this matter because it is the core of Criminal Justice System. ·

In Zambia, the Penal Code sets a maximum prison term for each offence ·which

reflects the Parliament's views regarding those offences. A court which convicted a

person under any provision of the Penal Code cannot impose other sentences than the

stipulated ones. In other words, courts have to respect the intentions of Parliament.

Below the stipulated maximum sentence, the court is free to impose any sentence.

However, where a sentence is too lenient or too pedantic> the sentence imposed may

be open to challenge before a superior court. In Zambia, appellate courts had

occasioned to consider the appropriateness of sentence in several cases, the· most

important are the cases of Lungu v. The People (1977), SCZ Judgment No. 28, and

Phiri v. The People (1980) ZR 196.

Minimum and Maximum Sentences

Professor Ndulo discussing the same matter in their joint book, on CriminalLaw in

Zambia, says that 'the stating of the maximum sentence can guide the sentencers by

24
 indicating what sentence the worst cases might attract'. And 'Acts~·.~- barrier to the

imposition of excessively severe sentences'. (1994, pp. 96 - 97)

1 Criteria of Sentencing

As regards the criteria of sentencing under the Penal Code, the following criteria may

be identified.

(1) The nature of the (offence) subject matter.

(2) The character and previous record of the offender.

(3) The level of maturity or age of the offender.

(4) The conduct of the accused person at her trial, particularly with regard to her plea

(5) The peculiar nature of the crime, i.e., its prevalence in the neighbourhood.

Tne criteria indicated, were discussed in the case Nsokolo (1940) 2 NRLR 85. It was

also discussed in the Kogo (1949) XVKLR 115 before the Supreme Court of Kenya.

It was approved by the Zambian Supreme Court in the case Chipata (1970) SJZ 189.

The criteria are now regarded as authoritative in Zambia.

The five criteria mentioned above seem to suggest that they are not principles of

sentencing under the Penal Code. However, .there are two principles of sentencing

which can be formulated on the basis of the five. criteria. One is what Baron~ DCJ

mentioned, in DPP v. Brown (1980) ZR 42, p. 51 as 'the public interest'. The.other

one, which exists also under English Criminal Law, is what is often referred to as the

principle of proportionality. That is to say the severity of response of the Criminal

Justice System should reflect the degree of guilt,, the gravity of the offender's conduct.

To these, two principles, a third one may be suggested, that is, the principle of

25

",;« -,,/t.Yfi<<Jf'i
 '''-'S@1Wf£1ll'- - - - - - - - - - - - -

equality: criminal conduct of equal gravity should be punished equally, by the same

court or a different court of comparable competence.

The main criterion which a court should take into account in deciding the appropriate

sentence is the nature of the offence. ·Once this is determined,. the court may then

consider the question of severity or leniency of the sentence. This was the approach

of the court in the case Kaambo (1976) Supreme Court Judgment No. 20 of 1976.

In the case Kabongo (1974) ZR 83, the accused was sentenced to fifteen years for

aggravated robbery where firearms were used and two persons were injured. The

Supreme Court held that the imposition of a minimum sentence of imprisonment was

insufficient because of the use of offensive and dangerous weapons. This point was

also raised in the case Ndumba (1975) ZR 93. The preceding decisions should be

contrasted with the.decision of the Supreme Court in Nkoloma (1978), Supreme Court

of Zambia, Judgment No. 34 or 1978, where a sentence of twenty-five years, above

the minimum, at the time, of fifteen years, was regarded as very long for a convicted

person for aggravated robbery. Here the accused used a toy pistol and no actual

violence was perpetrated on the victims of the crime. The accused might he described

as dangerous as the trial commissioner had done, but the critical issue was the nature

of the crime and the manner of its commission. This is what may arouse public

sentiment and public interest may then be expressed in response to the heinousness of
the crime as the decision of the Supreme in Chilujya (1978), Supreme Court,

judgment No. 17 of 1978, may indicate.

26
 The character of the offender and her previous criminal record is the other factor

which may affect the decision of the court in the imposition· of sentence, Jn most

coun1ries, first offenders are treated leniently than persistent offenders, as a general
,,
\.. rule. The following cases serve to illustrate how courts responded to first and

persistent offenders:

In the case Phiri (1970) SJZ 178, Gardener, J stated the principle in respect of first

offender, for the purpose of sentencing, as 'The reason for dealing with a first

offender leniently is in the hope that a severe sentence is not necessary and that a

lenient sentence will be sufficient' to discourage him from continuing t.o pursuing this

evil enterprise.

The view of the trial magistrate, as reflected in the sentence, was that the ·denial of

leniency was necessary in order to teach the accused a lesson.

In the case of Longwe (1976) SJR 30 the Supreme Court stated the principle of

leniency in this way 'a first offender in a case where there are no aggravating

circumstances which would render a fine inappropriate, should be sen~nced to pay a

·· fine with imprisonment only in default'.

In the case of Siyauya (1976) ZR 253, the accused was convicted for unlawful

possession of a firearm and ammunition. He appealed against a sentence of three

years with hard labour. His appeal was dismissed by the Supreme Court saying that

Parliament did not consider unlawful possession of a firearm with ammunition as

trivial offence and that ·the court would be failing in their duty were they not to deal

27
 ,M;;!!,,/?f;!ii•- - - - - - - - - - - - ~

severely with this particular kind of offence (per Baron, DCJ). The student should

read also Chamoto v. The People (1980) ZR and DPP v. Brown (1980) ZR 42.

There are some offenders who me never deterred by heavy sentence and they continue

to commit offence despite having served jail tenns. For these persistent offenders the

courts should take into consideration both the nature of the offence committed, how it

was committed and the peculiarity of the offender. But in some cases trial magistrates

seem to focus on previous convictions and taking that fact as indicative of the psychic

of the offender. However, as Professor Ndulo has stressed, previous conviction must

be taken·as a guide.

In the case Mwenya (1973) ZR 6 the accused who had six previous convictions

involving property offences, was sentenced to two years imprisonment (being the

maximum) for being in possession of goods (worth K.36, a lot of money thirty year

ago) which were reasonably suspected as being stolen goods. In delivering the ruling

of the Court of Appeal, Baron, JP stated that in Zambia there was no provision for

sentencing 'habitual criminals or persistent offenders'. He added that 'In our law,

however, bad a man's record may be, he may not be given a greater sentence than the

offence itself warrants'. He then reduced the sentence to tw~. years imprisonment to a

sentence of four months imprisonment.

In some cases the trial magistrate may view an offender as dangerous to society, as

was in the case Kalyata (1972) SJZ 62. Here the accused person has several previous

convictions. Although the trial court considered him dangerous, the Court of Appeal

28
held that a person could not, and should not, 'be sentenced based on the fact that the

trial judge considered him to be a threat to society'.

A further criterion that must be taken into account when determining the level of

sentencing is the age or the youthfulness of the accused. The sub-criteria underlying

the decisions of first or appellate courts are that young persons require special

protection from the state and that they should not be sent to prison because if they

come into contact with adult hardened criminals, they may become hardened criminal

themselves.

It appears that what has been mentioned above has a major influence on bo:fu, the
legislature and the judiciary. It is to be noted that the Zambian Penal Code has always

contained special provisions regarding juvenile offenders. This has further been

strengthened by the enactment of the Juveniles Act, Cap 217 of the Laws of Zambia.

The Act covers persons who have not attained the age of nineteen years.

Under the Juveniles Act a child (any person under sixteen years) may not be

sentenced to imprisonment. But if there is need to prevent him from committing an

't .
offence, or that be needs to be reformed, he may be sent to a reformatory. Young

persons (those under nineteen but over sixteen years) may not be sent to prison if

there is a suit.able alternative for dealing with them. e.g. probation orders.

The above social pol~y matters and their application to criminal matters relating to

young persons were considered •fu. the following cases: Mvula (1976) ZR 80 (see the

statement of Silungwe, CJ); Chishala (1975) ZR 240; Stwale (1973) ZR 182;

29

,~JP!f-<'§
 't!,';J11iA-!F ;;,,,;

Musonda and Chimimba (1979) Supreme Court, Judgment No. 9 of 1979 (where it

was held that a reformatory order was a severe sentence).

The criteria relating to the conduct of the accused during trial and increase in the

:frequency of a particular offence which may warrant the imposition of heavier

sentences in order to curb its incidences are straightforward matters the student can

deal with without encountering any serious problems.

Appellate Courts' App1·oacb

In this connection, it is necessary to examine, in outline only, the approach of

appellate cowts in dealing with appeals against sentences of lower courts. Professor

Ndulo believes that the role of an appeal court is to assist sentencers in the application

of the powers conferred on them, in that the High Court or the Supreme Court may

increase or reduce· the sentence imposed by a lower court, or may impose such

sentence or make such other order as the trial court was supposed to impose or make.

In accord with the judgment of Supreme Court in Alubisho (1976) ZR 11, and

Sachingongo, SCZ, Judgment No. 8 of 1981, an appellate court should not,interfere

with the sentence of a lower court unless the sentence is wrong in principle, or

manifestly excessive or total inadequate, or it amount to injustice. In all the three

situations, it is clear that appellate courts will interfere with decision of the lower

court in one way or another. We believe that the critical question is whether the

interference of the appeals court serves the end of justice for both sides, the accused

and the victim.

3(}
Concurrent and Consecutive Sentences

When a court convicted an accused person on several counts on one indictment or of

several offences in different indictments, it may sentence him for a determinate jail

term or indeterminate imprisonmen4 e.g. life imprisonment. At the same time, the
:. :::.

court may consider q-,iestions relating to suspended sentence which has been activated

as a result of the offender's behaviour, or a question relating to a breach of a

conditional discharge or probation order. The court will talce this into account in

determining the imposition of concurrent or consecutive sentence. There are

additional factors which the court cannot ignore. Such as whether the ·offences

committed constitute a series of offences as part of a course of conduct in order that

they are regarded as. one when imposing sentences. The other factor is that such

sentences should not in aggregate be inproportionate to the gravity of the individual

offences. Having determined this matter, and talcing into account the provision of

section 15 of the Criminal Procedure Code, Cap 88, the court may then decide to

impose concurrent sentence or consecutive sentence.

According to section 15(1 ). of Criminal Procedure Code, the general power to impose

co~ecutive or concurrent sentence on a person convicted at one trial of two or more

distinct. offences to the several punishment prescribed ..... such punishments when

consisting of imprisonment to commence the one after the expiration of the other in

such order as the court rnay direct', unless it decides to impose concurrent sentence.

The .question of imposing consecutive or concurrent sentence was considered by

appellate courts in several cases such as Kalunga (1975) ZR 72; Muke (1973) ZR 94;

Chomba (1975) ZR 245; Hardy (1971) SJZ S; Sondoyi (1977) SCZ 181. The

leading case is Chomba (1975) ZR 245. ln this case the accused was convicted on five

31

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 ':':,,-JMt1f'f ~- , ,, ,

accounts of burglary and theft. On appeal to the Supreme Court against sentence, the

court held that the better course in a case such as the present one was to impose

concurrent sentences iri respect of all the charges.

Suspended Sentence

A sentence of imprisonment other than those punishable by death, robbery or any

offence in respect of which there is a minimum imposed by law, may be suspe~ded ·

for a period not exceeding three years (Section 16 of Criminal Procedure Code). If

the offender commits a further offence during this perio~ the first sentence may

become activated. The offender may also be liable to be sentenced for the new

offence. A court may set conditions relating to compensation to be made by. the

offender for damage or pecurlary losses, or to good conduct, or any other matter

which the court deems necessary.

The main reason for the use of suspended sentence was explained by Silungwe, CJ in

the case Massissani v. The People (1977 ZR 234. at pp. 239 - 40. His Lordship said

that the court should talce into account whether suspension would leave the offender a

large and thereby constituting a danger to the public. In this case suspension wc-uld

not be allowed. But if suspension would provide an indirect means of defere,,....;e tllen

suspension should be considered. In addition. other facts such as pri:wne-' s previous

good character, he is in regular employment, he is a student or a J'iother of young

children. If anyone of those factors is established, the court shouki prefer suspension.

However, each case must be taken on its own merits. In another case which preceded

the one just referred to, Soyle. CJ said that the utility of suspended sentence is that it

encourages an offender to behave well in future (see Mbanga v. The People (1973)

32
ZR 186. To be of high utility, the suspended sentence mechanism should be

explained to the prisoner so that he understands the. consequences of violating the

conditions attaching thereto.

Other Penalties

Fine
An offender who is convicted by a. C6urt may be fined for .that offe.net: or other

offence (except cases involving murder, or treason). In imposing fine, the sentencer

takes into account both the seriousness of the offence and the. ability of the prison.ey to

pay. It is pointlesa to fine someone who is unemployed. In such a case~ it would be

reasonable to impose a suspended sentence as was held by the High Court m the case
Kalyombwe v. The People (1978) ZR 294. The rationale of the fine is that it serves

both the interest of the public and the prisoner. The latter remains at large, with lesser

stigma than one who had been to priso~-while the public will not spend money on the

prisoner since he will be the one paying for the damage he has done to society, in

general.

Conditional Discharge

It means that the offender who has been convicted by the court is discharged., but this

is conditional upon (the· offender) not committing an offence again within .twelve

months (Section 41 of Penal Code" Cap 87 of the Laws of Zambia). When makini a

conditional discharge order, the court. must explain to. the offender, in ordinary

language, that if he commits another offence during the period specified, he will be .

liable to be sentenced for the original offence as well as the subsequent one.

,..,".:!.
.) .,

,;,%fli!ffi}'(! ✓
 C ,5,J2fiiii •
~,. V: -

Conditional discharge order is made where the infliction of punishment was deemed

inappropriate and the making of a probation order was not nec~sru:y.

Absolute Discharge

The order for absolute discharge is made when the offender is convicted of the

offence charged but no further action is taken. The offender is not punisbc~ maybe

because the offence is trivial (see section 41 of Penal Code).

Option in Punishment and Sentencing

There is divergence between the various theories of punishment. It seems the better

option is a combination of two theories and their application to the problem at hand.

As regards sentencing. there are a number of factors that a court may consider when

deciding to impose a sentence . that may carry a shorter or a longer period of

imprisonment. One of these factors is that punishment and the imposition of

sentences should be in proportion to the seriousness of the offence.

ILLUMINATING CASES

Sentences

In R v. Martin (2007) Cr. App R (S) 3~ it was made clear that the sentencing decision

is 'infinitely more complex and refined ... mathematics does not apply to this most

sensitive and difficult of judicial ~sponsibilities'. This seems to suggest that the

sentencer carries a heavy responsibility when determining the appropriate sentence,

'since this requires a balanced analysis of both justice and mercy to be made in each

case. Guidance to sentencing indications can be found in Magistrates' Handbook

34
(this must be consulted). The following English case may also be considered: JJ. v.
Coleman (1992) 13 Cr. App R (S) 508.

DAVID ZWIMBA v. THE PEOPLE (1988 - 1989) ~ - 107 (S. C.)

GARDNER, AG. D.C.J.: delivered the judgment of the Court.

The appellant was convicted of indecent assault on a female, and sentenced to three

years imprisonment with hard labour. On appeal to the High Court the appeal against

conviction was dismissed and the sentence was increased to five years imprisonment

with hard labour. The appellant no:w appeals against .the sentence.

When imposing the increased sen~ce the. learned.Judge gave no reasons for doing

so. This Court has frequently stated that there are only three reasons for m,creasing

sentence. They are, firstly, if a minimum statutory sentence has not been imposed,

secondly, if the sentence imposed by the lower court was totally inadequate, and,

thirdly, if the sentence originally imposed was wrong in principle. As we have said,

in this case the learned appellant Judge gave no reasons for the increase in sentence~

and there does not appear to us to be any valid reason.

The appeal against sentence is allowed. The increased sentence of five years

imprisonment with hard labour· is set aside and we restore the original sentence of

three years imprisonment with hard labour with effect from 3rd , February 1986.

Revision Questions

• What is punishment?

• What are the penalties that courts in Zambia can impose?

35
 .·;;,1!%'.•---------------
• How does society justify the infliction of pain· and ~ering on accused persons?

• Explain the retriwtivist theory of punishment? Give examples from the Holy

Books and other ancient sources in the Middle East.

• Distinguish between general deterrence and· educative deterrence as far as legal

punishment is concerned.

• Explain the· reqwremeni of probation and how it can assist in the reduction of

overcrowding in prisons.

• What is a parole? Is it being made use of in Zambia?

• What is the important difference between absolute discharge and conditional

discharge?

• Does concurrent sentence serve the end of justice?··

• Why should trial courts avoid the imposition of consecutive sentence?

36
3

CRIMINAL LIABILITY

3.1 OBJECTIVES
At the end of this chapter the student should be able to :

• Understand the basic· principles of criminal liability.

• Explain the general concepts of actus reus, mens r~a and distinguish between their

constituent elements.

• Describe the essenti.a1 requirements of causation and identify its oth~ ingredients.

• Distinguish the concept of intention from (a) motive; (b) knowledge; and (c)

recklessness.

• Analyse doctrine of transferred malice.

• Justify the rationale of strict liability offences.

37

·--------------·,11:;;,?;:p•\··:, ·.,
 ,,,,,,;,".]_~

Key points

Crime is a legal phenomenon. Society does not view an act as Criminal unless it

offends against certain accepted norms.

In a modem st.ate a prohibited act, or omi$ion, or harm is ·considered as a crime where

it violates the law. A crime must have a prescribed punishment as required by the

wnstitution of Zambia (for example). At least there are four identifiable critical basic

principles of eriminal liabilities, namely: the prohibited conduct. called Actus reus; the

state of mind or guilty mind referred to as mens rea; causation;· and the hatm that the

law prohibits.

Causation is as important as the voluntary conduct of the accused for Criminal

liability to be established. This is because it is unfair to punish someone for

consequence or state of affairs for which he/she did not cause. Each of us must be

responsible for our behaviour.

The presence of some fault element accompanying the acius reus is an essential

condition for imposing liability for serious crimes. To hold X criminally liable, it

must be proved that he was aware that he might perform the actus reus of the crime

cbarg~ that he intended to perform the crime's actus reus, that he has chosen to

commit the crime, or, at least chosen to take the risk of committing it.

3.2 ACTUS REUS

One of the elements of crime which must be considered when analysing offences is

the actus reus, a guilty ac~ or the conduct element. The conduct of the accused

38
person may be an act, or an omission. The actus reus may also consist c:>f .external

elements (circumstances). Certain offences, such as homicide and a.~ault, it is not

sufficient to prove only the actus reus. The result of~e illegal con~uct must also be

proved. For example, the death of the victim in the homicide, or .injury suffered in the

case of assault

The actu.~ reus must be proved. That is unless the prosecution establishes that the

offender did commit the offence, there will be no criminal liability... The best

illustrative case on this point isR v. .Deller (1952) 36 Cr. App RJ84.

Omission

The general rule of criminal law is that there can be no liability for failing to act. But

there are a number of exceptions to the general rule: where one is under a d,l,rtY to act
as imposed by a statute, e.g., willfully neglecting to provide for a child. TI}e duty to

act may arise from a contract. For example, Z is employed to guard a rail crossing

where pedestrians walk across to a nearby market. If Z fails to cau,tion X who. was

walking across and he or she is knocked by a passing train, Z can be held liable for

.c"'.;1:-g
.1.u.,.:lli.l .,.,..
&..V
a--+
'--""•

The duty to act may also be attributed to family members. Each member of the

family owes a duty of case to the other members of the family. The duty to a<;t. may

arise where Z relies on the X to guide him through difficult terrain. b_eca~ Z is

suffering from impaired sense of sight.

39
 .,,.,·,,y,JiCFA_ _ _ _ _ _ _ _ _ _ _ _ __

Involuntary Act

The prohibited act or omission, complamed ot: should be freely willed. If Z, through

no fault of his OWI4 is not in control of his actions when causing a prohibited

consequence or engaging in prohibited conduct, then Z should not be held criminally

liable. In this ex.ample, the action of Z could be described as 'automatic', that ~ Z

was in a state of automation.

Analysis of actus reus

Law does not do concern itself with evil intentions, or emotions or motives. But if the

intention is manifested in a conduct then the law may concern itself. In particular,

where X does something towards carrying out the intentions. This physical conduct of

X doing something or.having done something is the prohibited conduct and we call it

Criminal Law as Actus reus, a Latin word which may be transla«Xi as the forbidden

conduct. But note that its literal meaning is the guilty act.

Actus reus consists of elements as contained in the definition of the particqlar crime

charge. Such an element is whatever act, omission, or state of affairs, .along with any

surrounding circwnstances, and any consequences of that act or omissio~ required by

that definition (as contained in the statute or otherwise).

'."

From the definition of actus reus, it can be said that the actus reus of most ~rimes

comprises two or more of the following elements:

(a) an act or an omission to act;

(b) taldng place in defined surrounding circumstances;

(c) resulting in (or causing) any requisite prohibited consequence.

40
Give two examples for each of the following :

(a) Crimes which require X's conduct to produce a particular result.

(b) Crimes which do not require X's conduct to produce any result.

One may claim that any crime requires the presence of some defined surrounding

circumstances. And the circumstances required are governed by the definition of the

particular crime (e.g. receiving stolen goods contrary to section. 318·' of the Penal Code
'

Cap 87), the circwnstance required is that the goods are stolen. In this example, the

circumstance that is legally relevanl is lhe un~ laid .down in the definition of the

offence (here stolen goods). The core element of any actus reus is: X's conduct.

Such conduct consists of some act(s) or omission(s) on the part of X whic~ produce

any necessary consequence and/or take place in any necessary circwnstances.

Examples of actus reus

S. 66(1) of the Penal Code, Cap 87 provides:

'(a) Any person who, without the permission of the Presideni trains or drills any

other person to the use of arms or the practice of military exercises, movements, or

evolutions, or

(b) ..... is guilty of a felony and is liable to imprisonment for seven years'.

The prohibited conduct: actus reus of the prescribed activities consists of

(1) Trains, or drills (two distinct guilty acts).

(2) Any other person (that is the accused person trains one or more other persons).

41
 xiJiJ4t•••-----------=·

(3) In the use of arms (this include :fireanns, exclusives, tear gas canisters, rocket-

propelled, etc), or the practice of military exercises, movements or evolutions

(the prosecution must elucidate those terms).

(4) Without the permission of the President (the permission may be in writing, or

verbal and may issue directly or indirectly from the President).

All the four elements of the actus reus of S. 66(1)(a) must be proved beyond

reasonable doubt. The prosecution· does not need to prove mena rea provided it can

prove the covert act of training or drilling which is sufficient to establish intention or

recklessness and to lead to conviction.

S. 75 of the Penal Code, Cap 87 provides:

'Any person who takes part in an unlawful assembly is guilty of a misdemeanour and

is liable to imprisonment for five years'.

The guilty act: actus reus of s. 75 offence consist of:

(1) The accused person takes part (i.e., joins other persons, or is a party at such an

unlawful assembly: meaning he or she was present when the unlawful assembly

had taken place).

(2) The assembly must be proved by the prosecution as an unlawful assembly as

defined under s. 74 of the Penal Code, Cap 87, and that there were two or more
.' .. ,•.

persons in addition to the accused person himself or herself.

(3) That the persons assembled had 'intent to commit an offence' (s. 74 of the Penal

Code, Cap 87), etc.

42
S. 200 of the ·Penal Code, Cap 87 provides:

•Any person who of malice aforeth.Qug}J.t. c;au_ses the death of another person by an

unlawful act or omission is guilty of murder'.

Section· 200,. at first reading, appears simple and straightforward. This is not correct.

To be able to cogently analyse the conduct elements of s. 200, one must also ex~e

the concept of 'any person', 'another person', 'causes death'; 'unlawful act';

"unlawful omission'; when does the law say death has occurred fur the purposes of tb,e

chargt, of murder. In addition; one mliist consider the legal implications of 'mlilice

aforethough:f. In particular the· analysis must involve the examination of ss. 207

(causing death), 209 (limitation as to time of death),. 238 (unlawful acts or omission

causing harm), 204 (malice aforethought).

With the preceding information at hand, the actus reus of s. 200 can be summarised as

follows:

(I) killing of a human being (that is causing the death of a human).

(2) The human being must have been a reasonable creature in rerum. natura.

(3) The killing must be unlawful (not the hanging of a person sentenced to death; or

killing someone in self-defence, etc).

(4) The killing of an enemy soldier in the heat of war does not amount to murder.

(5) The death (of the victim) must occur within a day and a year (this has been

abolished in England and Wales).

(6) The death must be attributed to the accused person (causation).

43

. "~Jf!fJ\p'"
 . >M•-!iW_ _ _ _ _ _ _ _ _ _ _ _ _ _,

All the foregoing must be proved beyond reasonable doubt and supported (each

element of the actus reus) mens rea of the offence charged.

3.3 CAUSATION

Where the actus reus includes a prohibitive result, the prosecution will have to prove

that the accused caused the probibitus result by his or her unlawful conduct.

The accused's act must be a substantial cause of the result. The accused m11$1: take his

victim as she or he finds him or her. This means that the accused will be held liable

for the hann actually caused to the victim despite having no way of knowing that the

victim was suffering from .terminal illness which aggravated the condition of the

victim resulting in serious injuries or death. The chain of causation may be broken by

a subsequent event. The event is not related to the unlawful act of the accused which

had caused the injuree to the victim. Such an event is usually .referred to as a novus

actus inte-rvenier,s: this simply means 'a new act intervening'.

In cases involving medical treatment, it is important to have medical evidence and

that should include evidence of what as expert opinion may suggest, caused the fatal

injury· or caused the death of the victim. There are two types of causation : factual

causation which can be determined by the use of the 'but for test'. There is also legal

causation. In this the focus on whether the consequence of the unlawful· act ( death

resulting) can fairly be said to be the fault of the accused person. The test that may be

applied to satisfy the requirements are twofolds:

44
(a) X's conduct must in·fact cause the prohibited consequence. For example,. X

stabbed Z with a spear. Z died a few hours form the stabbed wound and

bleeding. Hence the facts are not in dispute. X will be criminally liable for

the death of Z. This example shows factual causation. It requires that the

prosecution that, as a matter of fact,. X's acts played a role in bringing about

the prohibited consequence. The concept of causing death in murder or

manslaughter is the bringing forward of death and it does not matter that Z is

terminally-ill or mortally wounded.

(b) The conduct of X must in Law cause the prohibited consequence. That is the

court must be satisfied that the prosecutions have proved all the elements· of

the offence beyond reasonable doubt and they adduced sufficient evidence to

support their case. The court, the~ will find that X's conduct was also a cause

in Law (legal causation).

3.4 MENSREA

Criminal liability cannot be established by the proof of actus reus only. In most cases

of involving criminal conducts. Criminal liability rests upon the prosecution being

able to prove culpability in the sense that at the time the accused person brought about

the prohibited act or omission he did so with malice aforethought (s. 204 of the Penal

Code, Cap 87) (a certain state of mind: the mens rea under English Criminal Law).

The term malice aforethought has been severely criticised f()r being imprecise and

misleading. In Zambia, it still is part of the criminal law of Zambia, until the

legislature decides to do away with it. Until that moment comes: malice aforethought

remains a requirement for the establishment of guilt. It can craftly be substituted by

phrases such as fault element, or mens rea, the latter meaning guilty mind.

45
 .' ,ktili·---------------
In section 200 of the Penal Code, Cap 87, the term malice aforethought is employed.

This section provides

, 'Any person who of malice qforethought causes the death of another person by

_an unlawful_ act or omission is guilty of murder.

The two words malice and aforethought are difficult to define with a certain degree of

certainty. Malice does not mean ill-will. Aforethought should not be ttanslated as

meaning pre•med:itated. Malice aforethought should be understood as giving a

statutory definition of the state of mind of the accused person at the time of the

commission of the offence. Malice aforethought should be taken to show an actual

intention on the po.rt of the accused person to cause. or do the particular kind of harm

that in fact was done. Alternatively, that the accused person was reckless as to

whether such harm should occur or not. Where the actus reus consists of

circumstances, the Jaw requires that knowledge be substituted for intention. That is

the accused person must have known that particular circumstances existed.

Intention

The courts have been struggling with the definition of intention. Toe following will

illustrate what intention means~ X desires to kill; wants to kill; aims to kill; his

purpose is to kill. Non-purpose, intention has been referred to as 'oblique intention'

or 'indirect intention,.

Motives

It can be used as meaning emotion prompting to act intentionally. X might

intentionally kill Z out of revenge, anger, love, patriotism. Or it may refer to means

46
of satisfying the emotion. In this case it is not a legally relevant intention because it is

outside the actus reus and the mens rea.

Recklessness

It means taking of unjustifiable risk. That is the action involves a risk of the

commission of the prohibited conduct, or the consequence occurring, and i1 is

unreasonable in the circumstances to take that risk.

Subjective recklessness: it is where X must know that he is taldng a risk of the

forbidden consequence occurring. He is consciously t.ak:ing the risk. He is

deliberately taking the risk. He realises that the consequence might occur. He

recognises that there is a risk of it. He is aware of the chance of it happening. He

foresees the possibility of it occurring. He knows it might happen, but he carries on

deliberately and commits the prohibited act regardless of the risk involved.

Knowledge

In certain provisions of the Penal Code - receiving or retaining stolen goods - the

terms 'know' or 'reason to believe' are used. Knowledge must be interpreted to cover

willful blindness which is subjective recklessness. But knowledge may also be given

its narrow, literal meaning as meaning actual knowledge - knowledge of the first

degree. For example, in offences involving stolen goods, the prosecution is required

to pi-ove that X knew or believed the goods to be stolen. Belief lies somewhere

between actual knowledge and subjective recklessness .because of the alternative

believing. Here knowing must mean actual knowledge. But where knowingly is used

47
(alone) (or iri ·ordinary cases) knowingly must embrace subjective recklessness,·which

is sometimes referred to as knowledge of the second degree.

Transferred Malice

It is a situation where X aims to kill Z, but accidentally misses and ills or injures S
instead. Or X intending to burgle Z' s house, by mistake burgles S,s house. In both

cases, the law would allow his mens rea agai:rlst the person who or the property which

escapes the prohibited acts to transfer and marry with the actus reus of causing the

death of the unintended victim or the burglary to the unintended property,

respectively.

Gross Negligence

Negligence is a basis of civil action. It does not suffice as a basis of liability in

Criminal Law. It is not a state of mind of the accused person. At common.law- less

seldom by statutory law - the example that may be indicated is the crime of gross

negligence manslaughter (see the leading case R v. Adomako (1995) I AC 171 (HL).

The offence requires every high degree of negligence.

ILLUMINNTING CASES

Actusreus

Patel's Bazaar Ltdv. The People (1965) s.IZ No. 10 of 1965, p. 27 (HC)

An employee of the appellant sold a wrapped sliced loaf to a customer which will

pronounced unwholesome at the time it was soid.

48
The substantial issue before the court was whether or not the appellant had any

'treasonable cause' for selling unwholesome food contrary to s. 79(1) of the Public

Health Ordinance (Cap 126). The appellant's appeal was dismissed as they could not

advance any credible ~reasonable excuse'.

In dismissing the appeal the court argued that: .

(1) The Latin maxim 'actus non f acit reum nisi mens sit rea' applies also to

statutory as well as to common law offences.

(2) 'That there are offences in regard of which the legislature may not consider

presence of mens rea as necessary.

(3) That the legislature may absolutely prescribe the doing of an act an4 create an

offence where reference to the state of mind of the offender will be

unnecessary.

(4) That where absolute prohibition is impo~ whether or not the offender had

any intention to break the law, or otherwise do a wrongful act, the offender

will be found guilty.

The case of R v. Deller (1952) 36 Cr App R .184 illustrates the point. Z sold a ca:r

which he wrongly believed to be the subject of a hire pm-chase agreement in respect

of which payments were still outstanding. In fact the car was free from all

encumbrances. He was charged with what is now under English Law the offence of

obtaining property by deception. He appealed against his conviction on the basis that,

as the car was free from. aj.l encumbrance~, he had been telling the truth when he had

told the purchaser this, even tbough,he had thought he was lying. The court of Appeal

quashed his conviction. As the car was free from encumbrances Z had not deceived

49
the purchaser, hence the actus reus of deception was absent. The met that Z had

thought he was committing an offence, i.e. he bad mens rea, was insufficient on its

own for liability.

Omission

It is not a simple matter to differentiate between an act and an omission. In R v. Speck

·(1977) 65 Cr App R 161, Z was convicted of an offence under English Law of the

Indecency with Children Act 1960. An eight-year-old girl has approached him and

placed her band on his penis. He allowed her hand to remain there for approximately

five minutes, during which time he bad an erection. He appealed against his

conviction on the basis that he bad not committed any 'act of gross indecency with or

towards a child under the age of 14'. The Court of Appeal held, dismissing the appeal

that Z's inactivity in failing to remove the band of the little girl could amount to an

.invitation to the child to undertake the act.

The observation of Widgery, CJ is compelling in this respect, 'getting to the essential

features of this problem, and accepting tbat for present purposes there was inactivity

on the part of the appellant at all material times, we think that such inactivity can

nevertheless amount to an invitation to the child to undertake the act.

Causation

In R v. Dear (1996) Crim LR 595 Z was convicted of the murder of S; having

attacked Sand stabbed hiin several times with a 'Stanley' knife. Z appealed on the

basis that S had effectively committed suicide, and thus broken the chain of causation

in law, either by reopening wounds inflicted by Z, or by failing to seek medical

50
attention for wounds inflicted .by Z ~at: had subsequently reopened of their own

accord. Dismissing the appeaL the Court of Appem took the view that S had ·died of

wounds inflicted by Z, and that Z"s liability should not depend on distinctions

between S's acting negligently or with gross negligence in respect of his injuries:

Novas actus interveniens

In R v William (1992) 1 WLR 380 Z had jumped to his death from a moving car in

order to escape from a robbery, Stuart-Smith, U stated:

'... the nature of the threat is of importance in considering both the ., foreseeable of
.

harm to the victim from the threat and the question of whether the de~d's conduct

was proportionate to the threat; that is to say that it was within the ambit of

reasonableness and not so daft as to make bis own voluntary act one ~ch amounted

to a novus actus interveniens and consequently broke the chain of causation'.

Coincidence of mens rea and actus rea

In Thabo Meli v. R (1954) l WLR 228, the defendants had taken their intended victim

to a hut and plied him with drink so that he became intoxicated. They then hit the

victim around the head, intending to kill him. In ·ract the defendants only succeeded

in knocking the victim unconscious but, believing him to be d~, they threw him

over a cliff. The victim died of exposure some time later.. The defendants were

convicted of murder, and appealed to the Privy Cmmcil on the grotmd that there had

been no coincidence of the mens rea and actus reus of murder, in the sense that when

they had acted with the intention o( killing the victim by striking him on the head,

they had failed to kill him. On the other hand, when they did actually cause his death,

by throwing him over the cliff, they lacked the mens rea for murder as they believed
s,
 ,.,;,,';T)"f''.("f$f:''31"_ _ _ _ _ _ _ _ _ _ _ _ _ __

he was already dead. The Privy Council held that the correct .view of .W;hat the

defendants had done was to treat the chain of events as a continuing actus re~~ The

actus reus of causing death started with the victim being struck on the ~ and .

continued until he died'of exposure. It was sufficient for the prosecµtion to establish

that at some time during that chain of events the defendants had acted with the

requisite mens rea for murder. In the Melfs case, the Privy Council di~ssed the

appeal accordingly.

Transferred Malice

Lord Mustill observed in Attorney-General's Reference (No. 3 of-1994) [ 1997] 3, All

ER936:

~The effect of transferred malice, as I understand it, is that the intended vi~tim and the

actual victim are treated as if they were one, so that what was intended to mq>pen to

the first person (but did not happen) is added to what actually did happen to the

second person (but was not intended to happen), with the result that . what was

intended and what happened are mani.ed to make a notionally intended and actually

consummaied crime.

REVISION QUESTIONS

• How does criminal liability arise?

• Z does the actus reus of mmder, but he is seven years old. What is the position of

·the Law in Zambia in regard to Z's criminal liability?

• What is meant by the physical' element of a crime?

• What is the shorthand term for fault elements of a crime?

52
• What were the legal issues for the Privy C01mcil in Thabo Meli v. R (1954) 1 All

ER373?

• How does Z become criminally liable for the assumption of care for anoth~r?
• What is the legal implication of the proposition: the accused must take the victim

as he or she fmds her or him?

• Why does the criminal law set a high standard fur criminal liability where medical

negligence is alleged?

• Should doctors who inadvertently mistteat patienu; during surgery resulting in

death be prosecuted?

• Should a train driver who· fails to keep a proper look out leading to collision be

criminally liable, where death occurs?

53

. ·~r. %¥(i't""""··'
 ,,~$!·---------------··
4

PARTIES TO CRIMINAL OFFENCES

4.1 OBJECTIVES

At the end of, c;>r after completing reading this chapter, the student should be able to:

• Explain the rationale to have rules governing the commission of offences by a

confederate ofpersons.

• Describe what is implied in parties to a crime.

• Understand the rules of •criminal l~w .in, respect of nccessorial (secondary)

liability•aiding, abetting, counseling or procuring.

• Defin~ t:p.e role: of each accused person in a joint enterprise.

• Analyse when accessorial (secondary) liability can be avoided ~y withd:rawal.

• Understand who may be treated as an innocent in cases of involving accessorial

liability.

5,1
Km:Points
The person who directly commits the prohibited act is the 'perpetrator' or 'principal'.

Any other person who assists the perpetrator in any way in the commissioti·of:tb.e

offence - even by being present at the scene of the crime without making sm.y effort to

prevent its commission - is a 'secondary party', or an 'accessory'.

The secondary party will either be charged as an aider and ahetter, i.e.. providing
assistance to the 'pripcipal, prior to or at the time of the actual commission of the

offence, or altematively be 'jointly charged' as part of a joint enterprise ~th- another

or others.

In a joint enterprise all the offe))ders involved are treated as being both principal and
secondary offenders in relation to each other regardless of the degree of involvement'.

The prosecution must prove the actus reus, mens rea of the offence. In addition,. they

must prove that the defendant's act caused the result or consquence., both in fact and

law. In offences involving common pwpose~ if the principal suddenly uses an

offensive weapons and the other participants were not aware that the principal was

carrying the weapon, then the principal alone will be liable for that other offence if

proved by the prosecution. The other participants who did not forsee or contemplate

the use of the offensive weapo~ then they are not liable for the greater or other

55

,o?~,J;,,"Ti.+::Y;:,Yt
 jj;J/',

4.2 TBEPRINCIPAL

In offences involving two or more persons acting in concert; the principal is the

person who commits the actual actus reus of the offence charged. The only exception

to this relates to the doctrine of innocent agent. Where the actus reus of the offence

involves an act, such damage to property or wounding, the principal will be the person

who does the act (of damage to property). ·Where the actus reus of the offence brings

about a particular result as consequence, such as the death of another person, the

principal will be the person who is the most direct cause of the result or consequenc~.

As has been indicated two or more persons may be involved in causing the death of·
another person. They all will be joint principals to the killing.

4.3 THE SECONDARY PARTY (THE ACCESSORY)

An accessory is one who aids, abets, counsels or procures (the actus reus) the

. commission of an offence and is liable to be punished as a principal offender.

The prosecution must always prove that the accessory performed the actus reus

(assisting or encouraging X. to commit a crime), with the necessary mens rea

(intentions to assist or encourage). The crime must have been committed by the

principal offender.

The accessory (the secondary party) will be charged with 'aiding, abetting, counseling

or procuring the particular offence, e.g., murder, robbery, burglary, etc. The

accessory is liable to be convicted, provided that it can be proved that he participated

in at least one of the four ways indicated. It is observed that it is a difficult task for

the prosecution to establish the mens rea of the accessory.

 The Court of Appeal in England held that the words: ~- abet, counsel or procure
should simply bear their ordinary meaning. That there is a difference between each: of

those four words and the other three (see Attorney-General's Reference (No. };.of

'1 1975)[1975] 2 All ER 684.

The law also will hold the accessory liable by abetting if he/she was present at. the

scene at the time the offence was being committed. Because his/her presence

provided encouragement in fact, he intended to provide encouragement through

his/her presence.

The accessory may be liable for aiding or abetting by omission -if be/she has

knowledge of the actions of tlw principal, plus the duty to stop or prevent. the

commission of the omission, but he/she deli~tely chooses -to act to stop. or to

prevent the principal from carrying out the unlawful act.

The mens rea of the accessory can be proved by showing that:

He or she intends to assist, encourage, etc. the principal to commit the offence and he

or she has knowledge of the circumstances which constitute the offence charged.

Keeping in focus the foregoing, the following should be treated as essential resumes:

Actus reus of the Accessory

The actus reus may be minimal as the most peripheral assistance can constitute

'aiding' (e.g., cheering). The actus, reus is defined by the words 'aids, abets,

counsels, or procures' (see sections 21, 22, 23 of PenafCode, Cap 87 of the Laws of

Zambia

57

?-~-'fi!/J'.'""
Each of these words may have a distinct meaning. lt is the comm.on practice to

·charge any accessory with 'aiding, abet:ting, cmmseling or procuring' the relevant

offence.

The courts have not defined clearly the differences between the four words (verbs)

indicated. For more insights read Attomcy~Oeneral's Reference [No 1 of 1975}

[1975] 2 ALL ER 684, Court of Appeal.

Mens rea of the Accessory

The mens rea needed for accessorial liability has dual focus (i) There is the usual

requirement to establish fault in respect of accessory's own acts including the

circumstances surrounding them, (ii) The awareness of the accessory of the intentions

of the principal offender. This means that the accessory X must (a) intentionally do

the acts of assistance (or encouragement) realising they are capable of assisting (or

encouraging) the principal offender to do what constitutes the crime; and (b) know

that the principal offender is committing the crime. [NB: if X is charged with

procuring, it can be said that he must also intend to bring about the commission of the

crime.

It is noted that there is no special crime of aiding, and abetting the commission of

crime. X can be convicted only of aiding and abetting a specific crime {e.g.~ theft, or

defilement) Which is actually commtttea wim ms :asstscance or encom;agemen:i:. T'bl:5

means that an accomplice must h,ave knowledge of the type of the crime committed.

But the law does not require & knowledge of the precise details of the particular crime

to be committed.

58
 Accessories can be convicted of offences which they aid, abet, counsel or procure.

Withdrawal by accessory must be effective, i.e., communicated unequivocally to the

principal or police, or any other lawful authority. Being absent_from,the scene where

'.1 the prohibited act would be committed, or just no showing UJ> wi~_not, in law, amount

'·t· to effective withdrawal.

Again the Principal

The Principal is the person who physically commits the

.
crime. Exceptionally, a
,•,

person can be a principal who does not physically commit the crime, i.e., where

he/she uses an innocent agent (e.g., a child under 8 years) or someone lacking mens

rea (a lunatic).

4.4 JOINT ENTERPRISE

Joint enterprise entails taking part 'in the_ execution of a crime'. 'A person who is a

mere aider or abettor, etc., 'is truly a secondary party to the commission of whatever

crime it is that the principal has committed, (Stewart and Schofield [1975] 3 All ER

159 (CA).

The mens rea of joint enterprise may be explained that X and Z have set, out to
. : '

commit robbery of S bureau de change. They gained access into the building and

ordered all to lie face down. They collected the money, as they were about to leave, X

pulled out a pistol and shot S killing him instantly. Is Z liable for aggravated robbery,

or j~t robbery? The fundam.ental, proposition is that Z is liable for aggravated

robbery, provided that Z foresaw or contemplated the use of an offensive weapon. Z

59

c~i ~,,ijj"f(;'("" _,
 ,,,,r-n·bHtMRil!!w;m_ _ _ _ _ _ _ _ _ _ _,__,

is ·liable for all ·crimes committed as a result of carrying out the (unlawful) joint

enterprise.

4.5 WITHDRAWAL FROM PARTICIPATION

A secondary party, or a member of a common purpose venture may withdraw, and >
'

escape punishment for the full offence:

(a) Mere repentance or remorsefulness without effective action is not enough to

constitute withdrawal.

(b) X must communicate his or her withdrawal to Z in such a way as to serve

unequivocal notice upon the other party to the common purpose~·

(c) X must take active steps to prevent the offence.

ILLUMINATING CASES

Twelve and Two Others v. R (1957) Rand N 265 (Federal Supreme Court).

The three appellants were convicted of the murder of the·deceased, an elderly woman

believed to be a witch. It was established that to this arrangement - killing of the

woman by shooting her - the·second appelfunt shot the deceased with a gun, inflicting

upon her, a gunshot wound from which she died. The third appellant thought the

killing was going to be by supernatural means. It was held that:

· {1) The second appellant w'as the one who actually carried out the murder.

(2) The first appellant was fmmd to be ati accessory, and was convicted of murder.

(3) One of the principal lines of inquiry in a criminal case is the purpose and

intention which was in the mind of the accused person, if it can be ascertained

had he the guilty mind, necessary for committing an offence? Here, there is no

doubt about it. For what the appellant first and foremost desired and intended,

was to bring about the death of his mother. He admits it hlmself and the

60
 essential element of mens rea would seem, therefore, clearly· to be established.
'
The appellant then proceeded to put his purpose into execution by taking the

active ~ of engaging and instructing an agent to effect it, and by entering into

an arrangement to pay him for the work... Somili set about earning this money,

which he did by murdering the deceased by shooting her. The appellant's real

with and intention was, therefore, carried out, since his mother was destroyed

and that, as he says, is what he wanted'. Appeal of all three was dismissed.

Paskaria D/0 Kaballcye v. R (1954) 21 ECA 357 (Court of Appeal for Eastern

Africa).

The appellant when asked the whereabouts of her co-wife, gave a false account of her

movement whereas the co-wife was in fact murdered by an unknown perso~ or

persons. She was convicted of murder as an accessory after the fact in that ,by telling

a lie about her co-wife, she bad assisted those responsible for the murder of the co-

wife. She appealed against conviction. Her grounds of appeal were that her false

statements did not amount to assisting the alleged murderers. The court held that :

(1) if the Crown is unable to name or otherwise specifically designate, or describe

the principal offender, the task of proving that the.accused both knew that the

offender had committed an offence and assisted the offender in order to hinder

his being apprehended or tried or suffered any punishment is greatly increased.

(2) There is a strong suggestion that no conviction can be heard without a specific

finding as to the offender who is alleged to have been assisted.

(3) That where untrue stateme~ts are relied upon as alone constituting the alleged

act of assistance, it is essential for the tribunal of fact to be directed

specifically that if the motive of the accused person was merely a desire to

61
 :c¾l!@!IJ/·-,- - - - -

avoid his own arrest, that would not be sufficient to bring him within the view

of this charge.

(4) That .the evidence of the prosecution certainly fell short of showing that the

appellant was in any sense an ~ ob$erver' of the crime, and, evaluating it at its

highest, amounted to no more than suspicion that she knew of it.'

Mwape v. The People (1976) ZR 160(SC)

The appellant was among other persons who broke into the ZCBC shop in

Mporokoso. He was in a car while the others attncked the security guard, stabbing

him in the leg and generally using violence on him in order to execute their objective.

Violence was also used against p:~pperty blowing of the safe. The appellant was

convicted of aggravated robbery. He appealed on the ground that he did not assault

the night-watchman but remained in the ~-

The court held that:

. (1) The appellant and his associates had formed a common intention (purpose) to

. commit the offence of aggravated robbery.

(2) In law a participation which is the result of a concerted design to commit a

special offence is sufficient to render the participant a principal (s. 22 of the

Pen.al Code, Cap 87).

(3) The offence of violence against the night watchman which was committed by the

appellants' confederates was not a probable consequence of the prosecution of

the common purpose.

62
(4) The conviction and sentence imposed on the appellant was ~th to be set aside.

In substitution the appellant was convicted of stage-breaking and theft contrary

to s.'303(a) and 272 of the Penal Code, Cap 87.

Calhaem (1985) 2 All ER 2'6

Z hired a hitman to kill a solicitor's lover. The hitman claimed that he had decided

not to go through witll the plan to kill the woman, but when he saw her he went

berserk and killed her. Z argued that the causal connection between her acts and the

killing was broken when the hitman decided of his own accord to kill X.

The Court argued that:

There is no need forany causal connection between the counseling and the offence.

English (1977) 4 All ER 545

Z took part with another man in joint enterprises to attack and injure a police officer

with wooden posts. During the attack the other man stabbed and killed the officer.

English did not know that the other man was carrying a knife.

The Court argued that,

Foresight or contemplation that the principal may commit the offence is sufficient for

the mens rea of an accomplice.

REVISION QUESTIONS

• What is an accessory (or secondary party)?

• How does an accessorial liability arise?

63

~Jr:<:
 ·•. v~·- - - - - - - - - - -

• May an accessory be tried as a principal?

• What role does a principal play in the commission of a crime?

• What is the position of the law when the principal is incapable ·of committing a

crime?

• What is the rule governing joint enterprise?

• Z infonns X, fifteen minutes before they carry out an· anned robbery that he was

withdrawing from the planned attack. ls this an effective withdrawal?

• In Calhaem. (1985)~ the issue to be resolved by the court was causal connection.
How did the court dispose of this issue?

• Do you agree with the Supreme Court in their decision in Mwape v. The People

(1976)?

• Do you think Z should be punished for cheering a group of gangs to assault each

other?

64
5

INCHOATE OFFENCE~:

5.1 OBJECTIVES

After the completion of this chapter (through careful reading) the student should be

able to:

• Explain the concept of inchoate offences.

• Analyse the rules on inchoate liability.

• Distinguish between rape and attempted rape.

• Understand the law regulating attempts.

• Justify the position of the law on impossibility.

Key points

Inchoate offences are those offences which are incomplete. but the law treats

them as very serious, and if carried out:, or through, would have endangered

public interest. Inchoate offences exist as preventative measures: liability is

imposed because they come close to completion thereby threatening

individual as well as collective interests. The criminal Law is justified to

intervene in order to prevent the substantive offence from being actualised.

In each inchoate offence the mental element is crucial: people should not be

prosecuted for having-ill against other people. Where the ill-will amounts to

an attempt to commit arson, the state has the justification to attest and

prosecute these attempting to set fire on Xys house.

65

,lk ~-~;','
 ~<;~_t\''.:.,_

5:.,,.~ ATTEMPT

The l\'enal Code, Cap 87 prescribes and regulat.es the offence of attempt under ss. 389

through _193. S. 389(1) provides:

'When a pe.TSOn, intending to commit an offence, begins to put his intention into

exectition by mt.~ans adapted to its fulfillment, and manifests his ·intention by some

overt act, but does nc.'t fulfill his intention to such an extent as to comm.it the offence,

he is deemed to attempt to commit the offence'.

Under this section a person attempts to commit· an offence but fails to fulfill his

intention, then he or she will be charged '\Vi.th attempting to coJD.n?it that offence. The
1
mens rea of a criminal attempt - under ~- 389 - is that of specljlc Intent. It is not

sufficient to allege that the accused has a reckless mind when attempting to commit

the offence.

In order to prove the actus reus of criminal attempt, the prosecution must establish

that the accused person did 'put his intention of execution and this intention must be

m~ifested by 'some overt act'? That the accused must have done something more

than merely preparatory to the commission of the substantive offence, even ,if that

offence is impossible under s. 389, the accused person cannot advance the defence of

impossibility. Even though it was impossible to commit the complete offence, it

could be proved that the accused had begun to put his intention into execution by an

overt act, he or she had done an act which was more than mere preparation, this would

amount to an offence known to law and this was an attempt.

66
5.3 CONSPIRACY

S. 394 of the Penal Code~ Cap 87 provides:

'Any person who conspires with another to commit any felony ,u ., is guilty of a

felony and isJiable, ... to imprisonment for seven years'.

S. 395 of the Penal Code, Cap 87 provides:

'Any person who conspires with anoth~r to commit a misdemeanour, ... , is guilty of a

misdemeanour'.

The word conspiracy embodies the idea of meeting

,,,
of minds of two or more persons
,

to commit a criminal offence. Such meeting of minds can be construed as amounting

to an agreement between the conspirators. The agreeme11t _does not necessarily need

to be in writing, nor on oath. Even some of the conspirators may not know one

another. But one of them must have contact with the majority of them. All also must

have known what they are supposed to do.

Under the Pe11al Code, Cap 87, a conspiracy may involve the commission of any

felony, or a misdemeanour.

Actusreus

The actus reus of conspiracy is then the agreement (not contained ins. 394, nor s.

395, but can so be construed). The conspiracy must involve two or more persons.

They must have agreed to engage on a course that leads to the commission of any

felony or a misdemeanour. The parties must agree to commit the same crime
'
(offence). Where one conspirator wants assault X by beating him up, while another

· argues that he wants to kill X, then there can be no conspiracy.

67
 ·4;AW1&J,_........,_-.....,....,.,..,..._ _

Mensrea

It would appear from the wording of s. 394 and s. 395, there are at least .three

elements to the mens rea of conspiracy:

(1) The parties to the conspiracy must agree to commit any. f~lony or a

misdemeanour.

(2) The conspirators must intend to commit substantive offence(s): namely, any

felony, or a misdemeanour.

(3) The conspirators must intend or know of the circumstances which make

activities criminal. But this does not mean that each one of the conspirators to

play an active role. A conspirator who chooses not to play any role must still

be convicted of conspiracy.

Impossibility

The claim of impossibility in respect of conspiracy - under the Penal Code, Cap 87 -

cannot succeed. Where X and Z conspire to burgle the house of S, but it turns out that

S has no house, although he drives the latest BMW, the conspirators will have

committed the offence of conspiracy. [consult other sections of the Penal Code

dealing with attempt, e.g., s. 215, etc].

ILLUMINATING CASES

Chilomba v. The People (1974) ZR 151 (SC)

The appellant was convicted of attempting to cause death contrary to s. 215 of the

Penal Code, Cap 87. Following ~ome kind of difference the appellant armed himself

with three spears and attacked the complainant. The question before both levels of

trial was whether the appellant had been correctly convicted under s. 215 or whether

68
he should have'been convicted· of a lesser office, namely an offence under s. 224 of

the Penal Code. The Supreme Court finally substituted a conviction under s. 229 of

the Penal Code, Cap 87,.

Geddes (1996) Crim LR 894 (CA)

Z was discovered by a member of staff in the boy's toilet of a schOQl.. He .ran <>ff,

leaving behind a rucksack in which was found various items including a string,

sealing tape and a knife. He was charged with attempted false imprisonment of a

person unknown. He was convicted.

The Court of Appeal quashed his conviction. The court argued that although there

was no doubt about Z's intent, there was serious doubt that he had gone beyond the

mere preparations stage. He had not even tried to make contact with any pupils.

(NB: In Tosti and White (1997) EWCA Crim 222, a case in which the Geddes test

was applied, a critical phrase in the ruling of the CA was that 'the question is one of

degree: how close to, and necessary for; the commission of the offences were the acts

which it was proved that they had done').

REVISION QUESTIONS

• Define preparatory offences.

• Distinguish between preparatory and substantive offences

• Give four justification for the pr~scription of inchoate offences

• Should Z be charged with attempted burglary for examining the padlock at the

door of X's house?

69
 f£j},'T

• · Should S be charged for unlawful access to P's Desk Top PC by pressing the start

key (button)?

• Is it necessary in a charge of attempted rape that Z should. have gone as far as

attempt physical penetration of the vagina?

• What does merely preparatory signify?

• · What is the essence of mens rea in attempt cases?

• Explain the doctrine of impossibility under the Penal Code, Cap 87.

• Define - with the aid of authorities - a statutory conspiracy.

70
 6

INSTITUTION OF CRIMINAL PROCEEDINGS

6.1 OBJECTIVES

At the end of this chapter, you should be able to:

• Identify the courts that have criminal jurisdiction and the powers they may

exercise.

• Make distinction between a local court and a magistrate's court.

• Understand the rationale for assigning exclusive power to the High Court in

certain cases, such as treason, homicide.

• Appreciate why criminal proceedings are formalised.

.t-,•

• Distinguish between the powers of the various categories of subordinate courts.

• Define the extent of powers for magistrate's court.

• Define the criminal jurisdiction of the High Court.

• Distinguish between the original and appellate powers of the High Court.

71

---------------,Ji@;l'E,';}'i' '/
Keypgints

To make a goo.d case against an accused person, the prosecution must prove the accused is
guilt, in general, beyond reasonable doubt. When this is done and the defence failed to
raise doubts on the charge, the court may convict and sentence the accused. Criminal
liability is the fonnal condemnation that can be inflicted on the offender. For the present
purposes, criminal trial can be said to be highly formalised.

Criminal proceedings are commenced before criminal courts, ~ local courts,

magistrates' courts and the High Court. These oourts have been vested· with criminal
juri'Kliction, i.e., they have powers both customary law, common law and statutory
powers to try offenders who are involved in criminal activities. Their powers extend to
every place within Zambia, (including the air space).

Subordinate courts play very crucial role in the Criminal Justice System in Zambia. They
are expected to deal with. criminal cases both professionally and efficiently in order to
actdeve substantive justice, under a Penal Code riddled with contradictions and lack of
clarity.

Subordinate Courts consists of two main categories: the magistrates' courts and local
courts. Cases in the latter courts are considered least serious and they are dealt with by
justices who are assumed to be familiar with the social and economic environment of the
places under their jurisdiction.

Magistrates' courts, as already indicated, deal with crimina] cases which are serious.
They have also to commit certain very serious crimes for trial by the High Court.
The High Court occupies middle position between the Supreme Court and the Subordinate
courts. For criminal purposes it is the most conspicuous court in Zambia. It is not only
conimed to Lusaka but has offices in most provincial capitals in Zambia, e.g. Ndola,
Livingstone, etc.

In their book: Reading in Criminal Law and Criminology in Zambia, Prof. Ndulo says,
,.,The role of an apJ)P....al court is to assist sentencers in the application of the powers which
the imposition of the sentence permits (p. 111 ). In a concise legal essay explain what
Prof. Ndulo is trying to convey to the reader.

72
6.2 CRIMINAL JUSTICE SYSTEM

The Legal System of Zambia can be represented by ,a pyramid. And most courts

which fall within this pyramid are the creation of the Constitution. Some of them are

ve;:sted with criminal jurisdiction.

The Constitution vests the judicial powers, in Zambia, to an autonomous judiciary

(i.e., the judicature) comprising: (a} the Supreme Court of Zambia; (b) the High Court

for Ziunbia; (c) the Subordinate courts; (d) the Local oourts. {e) The High Court, the

Subordinate courts and the Local Courts ·enjoy criminal jurisdiction, :while the

Supreme Court is the final court of appeal in criminal, civil~ constitutional and other

cases. The High Court may exercise appellate jurisdiction in all criminal cases tried

by lower courts, but its rulings may be challenged on appeal to the Supreme Court

(under certain conditions).

The High Court has original and appellate powers in criminal cases. For example, it

can act as a trial court in homicide cases. But in cases involving assault, theft or

offences of false pretences, it may act as an appellate court. The powers of the High

Court in criminal cases is extensive and will be considered below.

All subordinate courts, i.e., Magist~ates' courts and Local courts act as first instance

courts in dealing 'With criminal acts or omissions. Their.respective Acts indicate the

extent of their powers, this in addition to what is contained in the Penal Code and the

Criminal Procedure code.

73

~ i)(J I i Q;,,l~Yfr.F ,,
 i(,:_{ci£'!JL'N•,

According to section 321 of the Criminal Procedure Code, any person· aggrieved by

the judgment of any of them (the courts indicated) may appeal against conviction or

sentence, or both to the High Court.

It is noted that subordinate courts of the Magistrate category are classified as Chief

Principal Resident Mt\Uistratcs' courts, Principal Resident Magistrates' courts,

Resident Magistrates' .courts, 1st Class Magistrates' courts, it1<i Class Magistrates'

courts and 3n1 Class Magistrates' courts. An appeal against the determination of

anyone of them lies directly to the High Court (under certain conditions). For

example, an accused person tried, convicted and sentenced by a magistrate of the 3rd

Class cannot appeal any decision of that court to a magistrate of the 1st class. The

accused can appeal directly to the High Court.

An appeal against convictio~ or sentence, or both to either the High Court or

Suprt,,me Court may be allowed (this may entail a number of options or consequences)

or dismissed. Where an appeal is against sentence, the appellate court may increase

or reduce the sentence imposed by a lower court, the court may impose· such sentence

or make such other order as the court deems appropriate, talcing into account what the

trial court could have done if it had property directed itself.

6.3 COMMENCEMENT OF CRIMINAL PROCEEDINGS

A number of regulatory bodies such as the Anti-Corruption Commission (ACC), the

Environmental Council of Zambia, (ECZ), etc., are given specific powers as regards

the arrest, investigation and prosecution of certain offenders, in the majority of cases

the decision to prosecute will rest with the Director of Public Prosecution (DPP). The

74
 police plays a dominant role in the apprehension of those suspected of having

committed offences. They also carry out the investigation. And in some instances

th,ey may prosecute.

l -

Police

lt falls within the discretion of the law enforcement officers (including the police)

whether or not to go out and apprehend a ~$~ted offender wheresoever they

swipe<,1 that crimes are being committed. Even. if they have some evidence of X

having committed an offence~ they may not prosecute him. However, decision to

prosecute will depend on whether the offence charged is laid do..JVn in the Penal Code

(or other Laws) or it existed at common Law.

A member of the public may report crimes to the police. This may make th~ Mlice to

take measures, such as recording, arresting or summonsing the suspect, and

investigating the reported offence or the complaint. If the police investigation shows

no credible evidence, the suspect may be released. If there is evidence, or the

offender admitted guilt or confessed, there are a number of choices the police may

make: (1) the police may prosecute; (2) they may issue a formal warning, or (3) take

no further action (NFA).

When the police decide to proceed with the case, they will charge the suspect (or

preferred an information against him) consisting of one or ,several counts and then

pass the papers on to the Director of P.ublic Prosecutions (PPP)

75

~\~;"??'''
 ','/;".c:YS'-\W

Complaint

Where a complaint is made to a magistrate within jurisdictio~ he/she may (1) draw

up and sign a form.al charge; or (2) direct a public prosecutor or legal practitioner

representing the complainant to draw up and sign a form.al charge; or (3) permit the

complainant to draw up and sign a formal charge.

Any charge must contain a statement of the offence with which the accused is

charged. If a charge made as aforementioned does not disclose any offence, the

magistrate shall make an order refusing to admit such complaint or formal charge and

this must lx; recorded. Any such refusal can be appealed against to the High Court.

Charge

Every charge or information must contain: ( l) a statement of the specific offence(s)

with which the accused person is charged; and (2) any other particulars of the nature

of the offence charged (s. 134 Criminal Procedure Code, Cap 88).

If an offender is charged with more than one offence, a description of each charge

must be contained in a separate paragraph of the charge or information called a count

(s. 135(2) Criminal Procedure Code, Cap 88).

S; 134 ofthe <.:rimmal Procedure Code, Cap 88 (CPC) provides:

Every charge or information shall contain, and shall be sufficient if it contains, a

statement of the specific offen,ce or offen~es with which the accused person is

charged, togiether with such particulars as may be necessary for giving reasonable

information as to the nature of the offence charged.

76
BighCon:a-t

The High CO'urt - in crimin:al proceedings has unlimited or original jurisdiction in any

criminal proceedings and to ,deal with such criminal matters ·under any Law. It

,exercises also appellate powers in'. appeals against the findings of Subordinate courts

(including _the Local courts).

The High Court may tty any offence under the Penal Code or any other wrltten Law

un~ (sections 4 and 5 of the Penal Code, Cap 87). The High Court may pass any

sentence or make any order permissible under the law s. 6 of the Penal Code, Cap 87.

It has power to confirm the determination of any subordinate courts in excess of their

jurisdiction, s. 9. It has powers to order a. prelimlnary inquiry, s. 10 in respect of a

charge brought against any person in a Subordinate Court. It ha$ the sole power to try

certain class of offices, s; 11 including treason or murder, unless it gives special

authority to a Subordinate court· presided over by senior resident magistrate only~ It

hears all appeals, s. 321 against conviction or sentence or both passed by a

Subordinate Court (all sections refer to Criminal Procedure Code, Cap 88) [CPC].

It hears also appeals from DPP s. 321a (Criminal Procedure Code, Cap 88) agaim.t the

determination. of Subordinate courts. In exercising its appellate powers, the High

Court may reverse or alter the finding, acquit the accused, or order him to be retried.

It may reduce or increase the sentence: s. 327 [CPCJ. Where an appeal [in section] in

relation to sentence may quash it. Pass such sentence warranted in Law in substitution

thereot or dismiss the appeals. 327(1)(b) {CPC]. On an appeal from any other order

s. 327(1 )(c) [CPC], alter or reverse such order.

77

,}f¥%Jfpi!)""'"
 ' 0 :i/!it

Magistrates' courts

Most C'(imjnal cases which are co~idered serious are subject to the jurisdiction of

magistrates' courts. Where a crime is more ~ous and the penalty provided by the

Penal Code or any written law exceeds the powers vested in any class of magistrate,

the case will be committed by the concerned magistrate for trial by the High Court. In •

general, magistrates' courts, whether of the first class, second or third class may try

any offence under the Penal Code,. or any other written law exceeds the powers vested

in any class of magistrate, the case will be committed by the concerned magistrate for

trial by the High Court. In general. magistrates' courts, whether of the firs~ second or

third class may try any offence under the Penal Code, or any other written law. They

may also pass any sentence or make any other order authorised under the Penal Code

cir any other written Law (s. 7 of Criminal Procedure Code, Cap 88). However~ the

student should note that there are a number of exceptions to this general rule, which

must be remembered as contained in clauses (i) to (iv) of section 7 [CPC].

Magistrates' courts in general have no appellate powers as all appeals against the

determination of all Subordinate courts lie with the High Court.

Magistrates' cowts also exercise other powers under the Penal Code, or any other

written Law, including powers to transfer cases between magistrates (s. 78 of the

Criminal Procedure Code, Cap 88).

78
 Local courts

These courts try criminal cases which are not deemed serious. They are courts

presided over by justices of peace in contradiction to magistrates of the first class, or

second class or third class.

"

They may not impose sentences exceeding six months without seeking confirmation

from, or certifying the same to the High Court.

REVISION QUESTIONS

• Draw a diagram showing the Criminal Courts in Zambia, and how they relate to

each other.

• Enumerate the powers of the Local courts· as set out in the Local courts Act (note

any recent changes).

• · List the different classes of subordinate courts.

• Is there any substantive differences between Chief Principal Resident Magistrate

and Senior Resident Magistrate?

• Does the Law allow appeal form 3rd Class Magistrate to 1st Class Magistrate?

• Is the powers vested in the Principal Resident Magistrate adequate for sentencing

purpose involving cyber crime cases?

• What is meant by 'the High Court' has original jurisdiction?

• What powers can the High Court exercise as an appellate court?

• Why does the High Court has exclusive jurisdiction in treason cases?
\
fl) Under what circumstances does the Supreme f'.,ourt review their own judgment (in

criminal cases)?

79

lff.!i}t{P
 &lifou_ _ _ _ _ _ _ _ _ _ _ __

''7

GENERAL DEFENCES

7.1 OBJECTIVES

After studying chapter seve~ the student should be able to

• Differentiate between the various species of what is generally referred to as

.
general defences in Criminal Law.

• Distinguish between automatism, insanity and disminished responsibility.

• Describe the requirements for a successful invocation of the defense of

provocation.

• Understand the rule of the law governing intoxication.

• Ju1:,iify the reteution of the selfdefence despite the universal recognition of the

'right to life'.

• Explain the distinction between necessity and duress.

• Apply the Law to factual situation and determine how a particular defence can be

claimed in order for the accused to avoid criminal liability.

80
Keypoipp

Certain defences are considered as justification for the conduct of the accused. Other

defences are seen as excuse and the accused may rely upon it under certain conditions.

Necessity is available in a number of situations. The ambit has been kept narrower by

the courts.

Dure~. 9f threats is pleaded where the accused admits the commission of the criminal
', ,I-

act, with the required fault element, but claims that she acted under compulsion.

Duress of circumstances is available, as defense, where there is the threat to life or

serious injury - about to be occasioned by circumstances, which cannot be averted

unless the accused commits an offence.

Supt.:rior orders cannot be claimed by someone who committed any crime, in

partfoular international crimes.

7.2 INFANCY

Capacity to commit a crime is a fundamental principle of criminal justice. The law

prescribes that no one should be held criminally responsible wuess one can be shown

to the blameworthy. If a three-year old child talc.es .some sweets from a counter in
\
Spar Supermarket at Arcades, she cannot be held guilty of theft. She took and moved:

'some sweets, belonging to the owner of Spar: the requirements for the actus reus of

theft under s. 272 is satisfied. But the law automatically assumes that she is not

81
 'c+YE'2!l!1!·••,•·_ _ _ _ __,......,.,_,

capable of forming the requisite mens rea s. 140(1) of the Penal Code, Cap 87

provides:

.'A person undt.'r the age of eight years is not criminally responsible for any act

or omission'.

Under the Penal Code the phrase 'it shall be conclusively presumed' is not used as it

is under s. 50 of the English The Children and Young Persons Act 1933. The absence

of the presumption under s. 14(1) of the Penal Code, Cap 87, does not exclude the

doli incapax presumption in the analysis of the criminal liability of a child under the

age of eight years.

A child may be prosecuted for committing an offence, if at the time of the

commission of the offence, the child was twelve years old or above twelve years old.

For children under the age of twelve years old and above the age of eight years old,

the prosecution must prove tha~ at the time of crime, he knew that 'he ought not to do

the act or make the omission'.

When subsection (1) is read in conjunction with subsection (2) of the (same) s. 14 of

the :Penal Code, Cap 87 one can understand the reason for the omission of the doli in

capax presumption from s. 14(1). Because it is 'contrary to common sense'. The

implication of this is that a child above the age of eight years, but below the age of

twelve years will only be found guilty if she or be is proved to have bad the necessary
\
intent.

32
In England the case C v. DPP [1995] ?. All ER 43 had raised a number of issues

which were addressed by the relevant authorities. For the present purpose, the case is

of relevance as it addresses the concept of 'he had capacity to know,. In the ca.c;;e X a

boy aged 12 was seen tampering with a motorcycle. When challenged, he ran away.

Th,e prosecution argued that the fact he had run away was evidence that he know that

what he was doing was seriously wrong. The Division Court held that this was

insufficient to rebut the presumption of doli incapax. That what the boy exhibited

was mere naughtiness rather than a realisation that what he was doing was seriously

wrong. One wonders how the High Court in Zambia would proceed if they were

seized with an appeal with similar prosecutorial argument on the basis of which the

trial court had made its decision to convict the child.

7.3 INSANITY

The defence of insanity raises fundamental moral and policy matters of great concern

to the society. It is an important topic which needs careful investigation as it involves

issues both of criminal responsibility and the role of the criminal justice system in

dealing with people who commit violent offences and use their alleged psychotic state

of mind as a possible excuse.

Insanity is a general defence to any offence requiring mens rea, including murder.

But the faw says tl1at every person is presumed to be sane at any time until the

contrary is established by lawful means, s. 11 of the Penal Code, Cap 87 provides:

\
'Every person is presumed to be of sound mind and to have been of sound

mind at any tie which comes in question, until the contrary is proved'.

83
 ;,~1;;;&,~:

The presumption of sanity can be rebutted by the accused who claims thf.tt when he

committed the prohibited - murder -- he was labouring \lllder defe-,at of reason

occasioned by some disease of mind. This has to be established on balance 1af

probabilities: the accused must satisfy most of the requi:tement.i of s. I 2 of the Penal

Code, Cap 87, which incorporated ·some of the rule of tbe case R v. M'Naghten

(1843)10 CI and F 200. S. 12 of the Penal Code, Cap 87 ·provides:

'A person is not criminally responsible for ar.1 act or omission if at the time of

doing the ac:t or making the omission he is, through any disease affecting his

mind, incapable of understanding what he is doing, or of knowing Uiat he

ought not to do the act or makf'; the omission. But a person may be crintlnally

responsible for an act or omission, although bis mind is affected by disease, if

such disease does not in fact p:i;-oduce upon his mind one or other of the effects

above-mentioned in reference to that ~tor omission'.

The basic rules, contained in s. 12 of the Penal Code; Cap 87, which must be

established are

( l) defect of reason;

(2) disease of mind;

(3) capable of understanding what he is doing (quality of act or omission) or

(4) incapable of 'knowing that he ought not to do the act or make the omission',

etc.

\
The party claiming insanity must prove (1), (2) and (3) or (I), (2) and (4) in order to

satisfy the requirements of proving insanity. The party who contests the insanity

claim must do so by showing that co

84
nditions (1), (2), (3) and (4) were not present when the accused committed the act or

made the omission.

Defect of reason

Simply the phrase means a person by reason Qf a 'disease of the mind' is deprived of

the power of reasoning'. The phrase is explained in Clarke [1972] 1 All ER 219.

Disease of' mind

The phrase 'disease of the mind' is a legal term as explained by Devlin J in Kemp

[1957] 1 QB 399 (see also Quick (1973) QB 939 and Hennessy [1989] 1 WLR 287).

Incapable of understanding what he is doing

This expression may be explained by suggesting that when X committed the act or

made the omission he or she \\'38 not aware of, or did not appreciate what he or she

wa.~)actually doing. He or she was incapacitated to understand the quality of what she

or he was doing.
'.

Incap,'llble of knowing that he ought not to do the act or make the omission

This may be explained that X did not know that he was doing something which was

dangerous and unlawful. That is X did not realise that he or she was comitting a

offence.
'\.

In establishing insanity, mt:-dical evidence is required. On the basis on the facts at

hand the trial court must decide whether or not the accused person was insane at the

85

-------------l,;'#/(*l'.t·"
 '"<,,.s'S/"<"""'

time of thf~ crime. If the accused is found insane as indicated above, the trial judge

will enter a special verdict of 'not guilty by reason of insanity'. On a special verdict,

the judgt} bas considered discretion in matters as to how to dispose w1th the prisoner,

this includes an order of detention during the president's pleasme. The detention at a

mental tiospital or other secured places is to keep the accused person away from the

public: safety of the public (see s. 167 of the Criminal Procedure Code [CPC], Cap

88).

7.4 AUTOMATISM

As stated by Lord Denning in Bratty 1963) AC 386, automatism, in Law, means 'an

ad which is done by the muscles without any control by the mind such as a spasm, a

reflex action or a convulsion; or an act done by a person who is not conscious of what

he is doing such as an act done whilst suffering from concussion or whilst

~sleepwalking'. In a state ·Of automatism, the accused may be conscious but incapable

of controlling his arms, legs, or even his whole body. Here one can claim that

automatism negate,s actus reus, meaning that X's act was involuntary. Where the

accused was not conscious at the time of the offence, he or she lacks mens rea as he

or she was not aware of what he or she was doing.

Evidence

In order for an accused person to succeed in bis/her plea in respect of automatism, he

or she has to place evideuce in support of the plea before the court.

~fi
 Self-induced automatism

Where the automatism-was due to X's taking excessive alcoholic beverages, or drugs,

then the rules regulating the defence of intoxication will apply (see Lipman [1970] 1
·1 QB 152, approved inDPPv. Mqjewsld [1977] AC 443).

7.5 INTOXICATION

Intoxication, in. Zambia may be used by offenders as defence to criminal acts in order

to put doubt into the minds of the magistrates that X did not form the necessary mens

rea at the time of the alleged offence. Intoxication may be caused by the consumption

of alcohol, or drugs, or cocktail of substances which is capable of affecting X's ability

to intend or foresee the consequences of his or her actions.

Rules governing intoxication

The Law in Zambia, on intoxication can be reduced to the following :

(1) Intoxication is no defence ifX formed mens rea.

(2) Under circumstances when X was involuntarily intoxicated and failed to form

mens rea, X is entitled to be acquitted.

(3) In cases of voluntary intoxication, ifX failed to form mens rea X will be entitled

to acquittal if the offence charged is one of 'special intent~. If the offence

charged is one of 'basic intent' the court will take into account whether X would

have- formed meM rea had he or. she had been sober. In general for basic intent

offences intoxication, is no defence. Some of the obove rules on intoxication are

\
contained ins. 13 of the Penal C.ode, Cap 87. This section provides:

(1) Save as provided in this section, intoxication shall not constitute a defence to

any criminal charge.

Q_';

£1,sv:\_~}~' '·Ye.·,·--
 ,.,.,.,J'!J!ii!fi!Jla

(2) intoxication shall be a defence to any criminal charge iC by reason thereof,

the person charged at the time of the act or omission complained of did not

know that such act or omission was wrong or did not know what he was

doingand-

(a) the state of intoxication was caused without his consent by the malicious or

negligent act of another person; or

(b) the person charged was by reason of intoxication insane, temporarily or

otherwise, at the time of such act or omission.

(3) Where the defence under subsection (2) is establi~ then in a case

falling under paragraph (a) thereof the accused person shall be

discharged and in a case falling under paragraph (b) the provision of

section one hundred and sixty seven of the Criminal Procedure Code

relating to insanity shall apply.

(4) Intoxication shall be taken into account for the purpose of determining

whether the person charged had formed any intention, specific or

otherwise, in the absence of which he would not be guilty of the offence.

(5) For the purposes of this sectio~ 'intoxication' shall be deemed to include

a state produced by narcotics or drugs'.

C1rimes distinguished

In. intoxication cases, courts may distinguish between crimes of basic intent and

crimes of specific intent:

Crimes of specific intent include '

• Murder (Beard [1920] AC 479).

• Vlounding or causing grievous bodily harm with intent (Bratty [1963] AC 386).

t;r
88
• Theft

• Obtaining property by false pretence, robbery and burglary.

• Arson with intent to do so and/or with intent to enda;nger life..

• Receiving and retaining stolen goods.

• Any attempt to commit one of the offences indicated above.

Crimes of basic intent include :

• Manslaughter

• Rape

• Common assault

• ·· Arson/criminal damage being reckless whether property would be damaged or

destroyed (including being reckless whether life would be endangered).

Burden of proof

Whether it is specific or basic intent crimes, X is required to adduce evidence that

goes to the degree of intoxication, and not just to the fact of intoxication.

Intoxication. and insanity

If the accused is so drunk, by evidence it is established that bis or. her condition

amounts to condition of insanity, the rules in s. 12 of the Penal Code, Cap 87 will

apply.

89

, '40).1!?/i!'}Yif'.'!,''
 '::vi:iw:!lsiil''§jj'_ _ _ _ _ _ _ _ _ _ _ _ _,

Intoxication and automatism

An act done while one is in a state (non-insane) automatism will exempt the accused

from criminal liability except where the automotive state is caused by voluntary

intoxication.

Intoxication and mistake, intoxication and self-defence

An intoxicated accused person is assumed to be aware of. any circumstances and

consequences of which he would heave been aware had he or she been sober. As

sue~ the claim of mistake may not succeed.

An intoxicated accused who uses force in self defence will not succeed in his or her

claim of self defence~ especially in respect of basic intent offenc~s: e.,g., manslaughter
or common assault.

7.6 PROVOCATION

Provocation is partial defence to murder. If X claims provocation as defence he or

she must provide evidence of provocation. The onus is then on the prosecution to

prove that X was not provoked. Provocation can be something . done or said to the

accused person.

Provocation may come from third parties or directed to third party if it bas the. effect

of provoking X.
\

Self induced-provocation cannot completely exclude provocation as a defence,

provided that the self-induced provocation is not considered as being deliberate.

90
 The principles and rules regulating ·provocation in Zambia, are . contained in the

following sections of Penal Code, Cap 87:

l

Definition

206 (1) The term 'provocation' means and includes, except as hereinafter stated, any _.,_._

wmngful action or insult of such a nature as to be likely, when done or offered

to ail ordinary person or in the presence of an ordinary person, who is under his

immediate care or to whom he stands in a conjugal, parental, filial or fraternal

relation, or in a the relation of master or servants to deprive him of the power of

self~control and to induce him to assault the person by whom the act or insult is

done or offered. For the purposes of the section, an 'ordinary person' shall mean

an ordinary person of the community to which the accused belongs.

(2) When such an act or insult is done or offered by person one to another, or in.the

presence of another to a person who is under the immediate care of that other, or

to whom the latter stands in any such relation as aforesaid, the former is said

give the latter provocation for an insult

(3) A lawful act is not provocation to any person for an assault

(4) An act which a person does in con.sequence of incitement given by another person
\
in order to induce him to do the act and thereby to furnish an excuse for
committing an assault is not provocation to that other person for an assault.

91
 ,,;.,Ldiifi!il,- - - - - - - - - - - - - ~

An arrest which is unlawful is not necessarily provocation for an assault but it may be

evidence of provocation to a person who knows of the illegality.

From the definition of provocation as set out ins. 206 of the Penal Code, Cap 87, the

following points can be observed;

1. Provocation involves an act (conduct), or an insult (word) or possibly both

together ( although explicitly indicated).

2. The provocative act or insult must be any wrongful act or insult, done or

offered by one person to another person (or in the presence o f ~ another

person). Thus if X hits Z on the head fr.om which injury Z dies, because Z cuts

in front of X's car on Lumumba Road during a jam, Z's action cannot amount

to provocation.

3. TI1e provocative act or insult can be done or offered to a third party (who may

not necessarily be present) in the presence of the accused person.

4. The third party must be related to the accused person on being under his or her

immediate care, conjugal, parental, filial, :fraternal or master and servant basis

(X insulted the father of Z as being the laziest man in the village - Z stabbed

X with a spear, killing him instantly: provocation).

5. The provocative act or insult done or offered must deprive the accused:

(a) Of the 'power' of self-control; and

(b) to induce him or her to assault the victim.

6. The provocative act or insult done or offered must be established to be capable

\
of inducing an ordinary person of 'the community to which the accused

belongs' to lose the power of self-control.

Three important points arise from the foregoing expose:

92
 (i) under s. 206 emphasises the words alone may be sufficient

provocation provided that they would provoke an ordinary person.

(ii) S. 206 emphasises the proportionality of an accused person's

retaliation to provocation by judging the response of an ordinary

person to similar wrong acts or insults.

·-----
(iii) The provocation must cause the accused person not only to lose self-

control but must also be such as to cause an ordinary person to react to

it as the accused did.

The explanations of provocation based. S. 206t gives a definition .of provocation

which is not different from the definition of provocation in R v. Duffy [1949] I All ER

932 (CCA) which was given by Devlin. Provocation is some act or series of acts,

done by the dead man to the accused, which would cause in any reasonable perso~

and actually causes in the accused, a sudden temporary loss of self-control, rendering

the subject to passion as to make him or her for the moment not master of his mind.

Ingredients of provocation

In order to identify and undeTh'tand the ingredients of provocation two basic questions

must be raised and answered: First, to what extent did the victim provoke the accused

into losing self-control? (factual ingredient). Secondly, is it acceptable that an

ordinary person (a reasonable man under English Law of Provocation) would have.

reacted JJB the accused person did? (what may be described as evaluative ingredient).

To be able to answer the two questions, one needs to considers. 205 of the Penal
\
Code~ Cap 87. It provides:

(1) When a person who unlawfuily kills an.otb.,-:;r under circum.stances which, but

for the provisions of th.is section, would constitute murder~ does the act which

93
 ·:;;h!!l/4'_ _....,...._ _,....,...,..,.......,,.,._

causes death in the heat of passion ca~ by sudden provocation as

hereinafter defined and before there is time for his passion to cool, he is guilty

of manslaughter only.

(2) The provisions of this sections shall not.apply µnless.the court is satisfied that

the act which causes death bears r;1. reaSQ~ble relationship to the provocation'.

The answer to the ,first question must determine whether the gravity of provocative

words or conduct of the victim caused in the accused person sudden and temporary

deprivation of 'the power of self control'. The loss of self control must be linked to

the accused being at the time in the 'passion of heat' and 'before there is time his or

her passion to cool'.

The answer to the second question provides safeguards against accused persons who

· are violent. The 'reasonable relationship' is required as a standard in judging whether

the accused reacted as an ordinary person would have done. The law assumes an

ordinary person to be reasonable to his or her interaction with others. The law also

assumes that the accused shares some of the characteristics of an ordinary person.

Another important ingredient of provocation is that the accused must have reacted in

the heat of passion and before .there is time for his or her passion to cool. This

requirement poses serious impediment to accused persons where there is a delayed

reaction to the provocation. The longer tim~ passes, the harder the evidence against
\
provocative conduct or insult becomes. Hinder such circumstances, any attack may

be considered as motivated by revenge and not by loss of control. The case Esther

Mwiimbi v. The People [1986] ZRI 5 (SC) and R v. Ahluwalia [1992] 4 All ER 889

94
 are some of the cases in which issues relating to time to cool and cumulative abu·.re

and ~?lence were consid~ hut rejected because the contentions were found V.> be

contrary to the basis of the ruling in Duffy, and the existing principles of law, to

whi.,.:;h the court must be bound, until the legislature introduces changes in the law.

1
Where the prosecution fails to negate the elements of provocation as claimed by the

accused. the court will convict the accused under s. 199 of the Penal Code, Cap 87.

That is the accused will not be convicted of murder, but of voluntary manslaughter.

7.7 DIMINISHED RESPONSIBILITY

The defence of diminished responsibility, is accepted by the court, reduces the charge

of murder to manslaughter. It enables the trial court to exercise discretion in

sentencing. Diminished responsibility must be proved by the balance of probability

by the accused or the defence on behalf of the accused.

Definition

The definition of diminished of responsibili1y can be gleaned from s. 12A of the Penal "

Code, Cap 87. The section provides:

(1) Where a person kills or is a party to the killing of another, he shall not be

convicted or murder ifhe W-&.S suffering from such abnormality of mind (whether

arising form a condition of arrested or retarded development of mind or any

inherent causes or is induced by disease or injury) which has ·substantially

impaired his mental responsibility for his acts or omissions in doing or being

party to the killing.

95
 ',"'>i:C7i-(1f,'(§Ya{---------------c

(2) The provisions of subsection (2) of section thirteen shall a:pply with necessary

modifications to the defence of d~shed responsibility under this section.

0 C

Provided that the transient effect of intoxication as described in that subsection

shall be deemed not to amount to disease or injury for purposes of this section.

(3) On a charge of murder, it shall be for the defence to prove the defence of

diminished responsibility and the burden of proof shall be on a balance of

probabilities.

(4) Where the defence of diminished responsibility is proved in accordance with this

section, a person charged with murder shall be liable to be convinced of

manslaughter or any other offence which is less than murder.

The defence of diminished responsibility involves three main requirements:

(1) Abnormality of the mind.

(2) Caused by (i) condition of arrested development of mind, or (ii) a condition of

retarded development of mind, or (iii) any inherent causes, or (iv) induced by

disease> or (v) induced by injury.

(3) Substantial impairment of responsibility.

Abnormality of the mind

The defendant must be shown, through medical evidence, to suffer from an

ahnonn.ality of mind at the time of the crime. Abnormality of the mind may include

deprt~ssion, morbid jealousy and other conditions which reduce the accused's will
\
power to control his or her physical acts.

96
<.;auses of abnormality of the mind

The causes of the abnormality of the mind are in .exhaustible. It can be the result of

organic or physical causes. In this case~ an accused person suffering from post natal

depressio~ or post~operation anguish may rely on the defence .of diminished

responsibility. It is not clear whether courts will accept a defence based on

abnormality caused by taking of drugs.

Substantial impairment of responsibility

The abnormality of the mind must be proved to substantially impair the accused

mental responsibility to make the correct judgment. The abnormality of tl,e mind

must be shown to the court to have substantially impaired the accused mental

responsibility resulting in him causing the death of the victim.. The impairment must

not be a trivial or minimal one.

7.8 NECESSITY

Here necessity as a defence is used as a defence of pure necessity. That is the accused

person was placed in a situation in which whatever he did would cause harm to

someone and that he performed an act that was the lesser of two evils.

There is a general defence of necessity. The English courts have recognised four

circumstances in which necessity provides a defence:

¢,> To preserve the life or well~being of another person who is unable to give consent.
\
'
111 Where property is damaged in order to save other properly.

• Where property is damaged in order to avoid injury to a person.

97

<>-,-~§?(,<V&.-'f
 , ',,N',:__'ff!}'Q»"fa'_ _ _ _ _ _ _ _ _ _ _ _ _ _ _,,

• Carrying out surgical operation to save the lif~ of one of the con-joined twins.
, r. •·~-. , •·.

This is where without the operatioq both twins would die.

7.9 DURESSBYTHREATS

Where an accused person admits the commission of the offence charged, with the

requisite mens rea, he or she may claim that he or she did the act or made the

omission because he or she was threatened with death or serious injury if he or she did

not comply with the demands of those who were threatening him. The preceding

described a typical scenario of duress by threats. It is observed that the threat may be

to harm the accused himself or another person. Duress is a complete defence if it is

succe&.fully pleaded, it will result in acquittal.

Duress against certain crimes

Duress is available as defence to all crimes except murder. It is also not available as

defence to charge of attempted murder. It is available to some forms of treason.

Murder is excluded because, as it was observed in Howe (1987] 1 AC 417: ' ... good

morals, good policy or good law .suggest . . . that the ordinary man of reasonable

fortitude is not to be supposed to be capable of heroism if he is asked to take an

innocent life rather than sacrifice his own'. This implies that the law expects heroism

to cowardice. That the accused should let his own life to go rather than kill an
\
innocent third party. The sanctity or life is to be upheld.

98
The requirements of pleading a successful defence of duress_ can be summarised as

follows:

(1) A subjective test where the accused pe.rson.?laims that he or.she acted in the
way he or she did because .of ~ t s of.imminent death or serious physical

injury (an imminent threat is not immediate) to the accused perso,n, or another

. person (e.g., brother, sister, wife, father, mother, business partner or a

stranger). The closeness of the relationship is crucial in support of the

accused's claim. Threats other than death or serious iajury will only be relevant

as mitigation factors during sentencing.

(2) Objective tests, that, is th,~ accused person must have good grounds to believe

that the threat ha bee-n made and would be carried out unless he or she kills the

victim.

(3) · An accused person would have acted in the sense as an ordinary person of

reasonable firmness would have acted. That is whether the accused person's

response was proportionate to the threat that he or she was facing~ The more

serious the offence, the greater the threat must be expected.

(4) The accused person must be responsible for the threats. That is he or she

·should not expose themselves to threats. The duress should not be self-induced:

that is the ·accused person is .threatened by a gang which he or she has

voluntarily joined.

\
7.10 DURESS OF CIRCUMST,ANCES

In duress by threats, there is someone who has threatened. the accused person. In

duress of circumstances there is no threat from anyone else. Circumstances are such

99

~;,,](':\'>,: '
tb.eit unless the accused person commits an offence (crime), someone will be killed or

possibly suffer serious injury. ·

The defence of dmess of circumstances is not available as defence to murder nor

attempted murder. The accused person must have good cause to believe that the

circumstances threatened her life, or presented the likelihood of serious injury and a

sober person of reasonable firmness will have reacted to the circumstances in the

same way.

7.11 SELF-DEFENCE

One may lawfully cause injury, or even the dee.th of another person without being

held criminally liable. The force used is justifiable under such circumstances, if that

force could be accepted as reasonable. The person who is using such reasonable and

. justified may claim that he or she was acting in self-defence, the defence of another

person, or the defence of property (including the property of the other person). This is

clearly provided for Wlder s. 17 of the Penal Code, Cap 87. S. 17 reads as follows:

'Subject to any other provisions of this Code or any other law for the time

being in force, a person shall not be criminally responsible for the use of force

in repelling an unlawful attack upon his person or property, or the person or

property of any other person, if the means he uses and the degree of for~e he

employs in doing so are no more that is necessary in the circumstances to repel

the unlawful attack'.

\
Use of force

The law provides that the use of force is generally prohibited. Any use of force by a

private person, or a public person in the service of the state (including local

100
authorities) must be justifiable, in order that the person using the force is not held

criminally responsible. The use of force to be justified a number of requirements

must be satisfied.

(1) The use of any force is not justified if it is not necessary (in repelling an

attack the force employed must not be 'more than is necessary'.

(2) The attack the accused person is repelling must be 'an unlawful attackJ.

(3) The attack must be upon the accused person's self, or his/ her property, or the

person or property of any other person.

(4) The means he or she uses are not ~more than is necessary'.

(5) The means used and the degree of force employed must be for the purpose of

repelling the unlawful attack.

If X claims that he or she used force in self-defence, X must be judged in light of the

position X honestly perceived to exist. It does not matter X's judgment of the

circumstances which preceded the use of force was exaggerated, leading X to imagine

that a threat existed. This,can be explained by saying that X can use force to ward off

what is in fact perfectly law behaviour, provided that, it can b established, X honestly

thinks that force is necessary.

Apprehension of attack

The law does not require that X should not use reasonable force in order to repel an
attack unless there is an attack in progress. X can use reasonable force if he or she

'apprehends an attack'. 1n Beckford (1988) AC 130, Lord Griffiths' words are good .

reminder for magistrates and criminal law students. and lawyers; 'A man about to be

attacked does not have to wait for his assailant to strike the first blow or fire the first

101

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 ,,,§(/!l!J'CW_ _ _.....,....,......,....,..,__,,,

shot; circumstances may.justify a pre-emptive strike' .. Lord Griffiths $tatement was

amplified by Lord Slynn in DPP v. Bailey [1995] l Cr App R 257. His Lordship said:

'Self-defence as a concept embraces not only aggressive action such as a pre...emptive

strike or aggressive reaction but applies equally to a wholly defensive posture .. '.

This implies that X can issue threats of force, or even de~ if that might prevent an

attack upon himself, or herself or his/her property or the person and property of

another (person).

A duty t~> retreat

Whether· today, .when the issue of self-defence aris~s, the law will insist that X

demonstrates by actions that he or she does not want to fight -:--:- a kind of r e ~

remains to be determined by the courts, or resolved by the legislature. In that retreat

was one of the ingredients of self-defence.

Reasonable (degree of) force

The Penal Code, Cap 87 requires that X uses only reasonable (degree) of force in the

circumstances obtaining at the time of the incident. 'The test of reasonableness -

predicated on necessity- is not ... a purely objective test'.

As a general proposition, in cases involving self-defence, the accused person should

be judged: on the basis that he or she honestly believed_ that the circumstances were

such as warranted, the use of force, in order to repel the attac~ or pre:vent the

threatened attack.

102
ll,LUMINATING CASES

General defences

Inf'aney .

R v. F.C. (A Juvealle) (1941) 2 NAL..B.. 185 (High Court of.Northel'.11

. Rhodesia)
.

·F.C., a boy~ ten years old~ found a watch at a swimming pool belonaing to a Mt

Stevens. He took it without tho owner's _consent. After creating false 5!-0ries as to the

owner.mip of the watch~ he ~ld the watch to as store for tw~ty sbiUinas. The
·,:~. .

accused was charged with theft contrary to s. 243 of the Penal C!ode (No. s •. 27 of the

Penal Code, Cap J7). He was found guilty by the magi$trate. The ground of .

conviction was that the plan evolved by the boy was such that heJmew he was doing

wrong. He appealed against conviction on the ground that he found the watch and did

not steal it.

For the present purpose, it suffices to quote the following statement from.. the

judgment of Judge Robinson:

•As to the child's criminal responsibility and his cs,t.pacity to know he was doing a

wrongful act, the proof can only come from all the circumstances of the case... The

boy child made up quite an ingenious and perfectly untrue story when he. was trying

to sell the watch to Mr Smith. If he had said to Mr Smith, 'I found this and now I

want to sell it~ it would be clear that he did not know he had done anything wrong.

But ·concocting the story which he did, makes it perfectly clear that he had the

capacity to know what he was doing was wrong'. On this ground and others the

appeal was dismissed.

103

:;m ~}{',''.(./
 ,,,v',!~ "\t;!I•--------------
lnqnity

Tl,e Peopk v. Mwtlba [1973] ZR 271 (BC)

The accused was charged with assault and pleaded guilty. The magistrate then

proceeded to take evidence. After the close of ~ -proseclli,tion~~-

,".
~
.
he.,,,. made a

finding that the accused was incapable of makiog _ bis defence by :reason_ of insanity. A

plea of not guilty was entered and an order made. The effect of the order was that the

accused was to be detained during the president's pleasure. The case was sent to the

High Court for confirmation of order.

The High Court was disturbed by the procedu:re used by the magistrate in dealing with

an accused who was incapable of defending himself because of mental abnormality.

It set out clear guidelines which must be followed under similar circumstances.

Accordingly, it ordered a retrial by a subordinate court of competent jurisdiction.

The main points made by the High Court are that:

(1) Where a question of insanity arises it is essential for a magistrate to follow the

procedure which is set out in the Criminal Procedure Code, Cap. 87.

(2) That the first . question to be decided is whether the accused is cap~le of

making bis defence at the time he appears before the cow1:.

(3) That a second question may arise as to whether the accused was insane at the

time of the commission of the crime. In such a situation, s. 160 of the

Criminal Procedure Code, Cap. 88 requires that the court must inquire into

the matter.

(4) Having complied with the requirements of s. 160, the magi$trate should make

a :finding and a determination as regards the second question.

104
There was no rational explanation for the attack. The meilit..-al evidence was to the

effect that the accused was sane shortly after the attack, but might have been

temporary insane at the time of the attack. The defence pleaded insanity. The Court

agreed with the submission of the defences.

Part of the court's argument is as follows:

'Here is a man who up to the day of the attack was a good villager who has

admitted that bis grandmother was a kind woman, striking at her dead body to
,,
break fourteen ribs, wielding this heavy piece of wood and cracking the skull

to fragments ... No sane person could have acted in the way the accused did.

There is no hesitation in finding that the accused when he suddenly attacked

Maria was suffering from a disease• of the mind in that he did not know what

he was doing or did not know that he was doing wrong,

Burgess [1991] 2 QB 92

Z and his fri;.~nd, X, were in Z's flat watching videos. They both foll asleep but,

during the night, Z attacked X while she slept, hitting her with a wine bottle and a

video recorder. She suffered cuts to her scalp which required treatment. To a charge

of unlawful wounding contrary to s. 20 Offences Against the Persons Act 1861, Z

pleaded automatism. The trial judge ruled he was pleading insanity. The jury

returned the special verdict 'not guilty by reason of insanity'. The Court of Appeal

dismissed Z's appeal.

105
 • ,•,}£!?'}},,f/!l'_ _ _ _ _ _ _ _ _ _ _ _ _oo,

(5) If the accused found capable for making bis defence, the trial should proceed

in the ordinary way. But where the accused is found incapable of making his

defence, the magistrate should follow ·the procedure set out in s. 161 of the

Criminal Procedure Code~ Cap. 88.

(6) What the magistrate should finally do is guided by the provision of s. 1167 of

the Criminal Procedure Code, Cap. 88.

R v. Alidia (1959) 1 R and N. 22 (High Court of Nyasaland)

The accused killed her 11-month old child by hitting it on the bead, causing a fatal

wound. The evidence established that she was insane at the time of the comntission

of the offence. But this was not caused by the result of lactation or as a result of

giving birth. The question before ·the court was whether or not she was guilty of

infanticide.

The court held that the offence of infanticide was not established, irrespective of

whether the 2!'.:-CUsl;",d person be regarded as insane with the meaning 0f s. 13 of the

Penal Code (nows. 12 of the Penal Code, Cap 87). After a careful examination of the

phrasing of s. 163 of the Criminal Procedure Code, the court takes the view that in

this case the killing of the deceased child is an act charged against the accused person

as an offence, within the meaning of that section. The court ruled that the accused

was 'guilty but insane'.

R v. WolomosiPhiri (No.1) [High Court of Northern Rhodesia]

The accused - while sitting outside a hut suddenly killed bis grandmother savagely.

There was no evidence of any prior vicious tendencies on the part of the accused.

106
 Automatism

Bailey [l?Sl) 2 All ER 503

Z was .a•.dmbetic
.
who failed to eat ~operly after taking insulin
- ....
... This caused a
,•

hypoglycae.ic state during which he hit X on the head with an iron bar. Autonuµism

as defenc~was not taken. Lack of evidence Jnade. the coµviction to stand, although

the ruling was considered wrong.

[NB: Automati~ even if self-induced, is a defence to an offence which requires the

prosecution to prove specific intent]

Intoxication

· Mulonda v. The People [1978) SCZ JucJgment 51 or 1978 (SC)

The appellant was convicted of murder. He went to the house of the deceased X and

struck him.:with an axe causing death. He claimed that at the time of the offence, he

had no m:alice aforethought because of intoxication. During trial he remained silent

and called no witnesses.

I
The court .held that:

'There is ample evidence that the appellant was drinking heavily for sometime prior

to the fatal incident, but there is no evidence to show that he was actually intoxicated

or, what is more, that he lacked capacity to form the necessary intent . . . It is common

place that a man who has taken drink, or is drunk, may nonetheless form an intent,

albeit a drunken one, and that once a drunk.en man forms, and actually translates into

reality, the intent to kill another or to do grievous harm to him, he is guilty of murder'.

107

-».~1.,,-. t}'f?-'3'',~y~--,
 ··:.&.., - - - - - - - - - - - - - - ·

OPP v. Majeweski (1976) 2 All ER 142

Z took drugs and alcohol and became aggressive. He assaulted a b ~ and police

officers who were called to the scene. He claimed he had.'completely blacked out'

and did not know what he· was doing. He was ·convicted of offences of assault

accasioning actual bodily harm and assaulting police officer in the execution of his

duty. It was held that where an offence is one of basic intent then voluntary

intoxication is not available as a defence.

Provocation

Banda v. The People [1973] ZR 111 (CS)·

The appellant claimed in a confession that he came across his girl friend committing

adultery, as he put it, with another man and killed them both with an axe. The learned

judge considered the question of provocation and held that the accused could not avail

himself of this defence.

The law applicable is that contained in the relevant sections of the Penal Code and no

other. The rules ofEnglish law governing cases of homicide arising from adultery, so

far from being directly applicable in the Territory, are widely different from the

relevant rules of law contained in the Penal Code, and any reliance on the English

rules or cases decided there under is likely in Northern Rhodesia to lead to error or

confusion. ·

It seems to us quite unrealistic to confine the cases in which a defence of provocation

is available to cases where the relationship between the spouses as been solemnised

108
either under a statute or under customary law. Provocation is defined in section 206

of the Penal ·code and expressly refers to a 'wrongful. act or insult of such nature as to
,:,;

be likely, when done or offered to an ordinary person ... to deprive him of the power

of self-control..'.

Where a man and woman are living together in ·a stable relationship b~t are. not

formally married, either under a statute or under customary .h,lw, it s~ms to. --~-~
.
us. quite

unrealistic to suggest that the depth of feeling they have for one another must be less
that if they were married. The question is not what is the formal relatlonship but what

is the factual relationship and how would an ordinary person react to finding bis

partner with someone else in circumstances of intimacy. There may for instance be

reasons why the parties do not wish to marry, or are unable to marry. If, for instance,

a man and wife separate, and perhaps for religious reasons or other reasons are averse

to that marriage being dissolved, they may well both form st.able relationships with

other persons.

We have referred to a stable relationship, but we do not wish to be understood to be

limiting the availability of the defence of provocation to such cases. It is unnecessary

for us to do so for the purposes of the present case and we specifically decline to

attempt any exhaustive test. On the other hatid, we, wish to make it dear that we

would not regard the defence as being available on the basis of a previous casual

relationship.

In the present case there is no evidence as to what the appellant meant by the

_description 'girl friend'. This may well have been intended to refer to a woman with

109

1(ZW~"::p-:;,;
 ''''?IN_ _ _ __

whom he had some kind of stable relationship, and since the matter was not clarified
we must make these assumptions in his favour.

•
We concur with the Federal Supreme Court that R v. Chinkupe (1958) S N.R.L.R.

276 was wrongly decided. It follows that the learned judge in the present case erred,

albeit understandably, in following that case. Had the learned judge applied the law

as we have now stated it, it is clear frQm his finding of fact that he might well have

found the appellant not guilty of murder but guilty of manslaughter. Convicted of

manslaughter.

R v. Amuli [1953] 4 N.R.L.R.. 243 (HCNR)

The accused was charged with the murder of his wife by means of an axe. The

defence submitted that the cumulative effect of the ~fe's conduct prior to the attack

was sufficient to provoke the husband and cause him ultimately to lose his self-

control as an ordinary person.

In rejecting the claim of provocation, the court stated that to establish provocation on

a murder charge the following must be adduced.

(1) That there should have been circumstances which can be said to have deprived

the prisoner temporarily of the power of his self-control; a matter which has been

discussed in a number of cases of and many other authorities;

(2) That the accused should be shown to be, not a particular sort of man, but 'an

ordinary person', as defined in section 183 of the Penal Code - a definition which

adapts and expands, for local conditions, certain test laid down in leading cases;

110
(3) That there was sufficient provocation, which must have been sudden and have

been acted on in the heat ofpassion and without time for cooling, as provided by

section 182 of the Penal Code;

(4) That the act which caused death can be found to have been one which bore a

reasonable relationship to the provocation, in accordance with the principles

explained in a number ofleading English cases.

This is to say, even in the case where the court accepts that there has been loss of

control as a result of the sudden provocation of an 'ordinary person', that is not

sufficient to reduce a charge of murder to one of manslaughter unless the court is also

satisfied as to the reasonable relationship between the weapon, or other means of

retaliation employed, and the nature of the provocation.

Diminished responsibility

Dietschmann [2003] UK BL 10

Z, who was suffering from a disorder in the fonn of depressed grief reaction, was

upset by X's disrespectful behaviour. Z killed X by repeatedly kicking X and

stamping on him. Z had also drunk a large amount of alcohol before the killing. He

was convicted. He appealed to the House of Lords. The House of Lords allowed the

appeal.

The House held that:

Even if Z ·would not have kill~ if he had not taken the drink, the causative effect of

the drink does not necessarily prev~nt an abnormality of mind from substantially

impairing his mental responsibility.

111
 w <,y,,s/)K,{l;t,}fu?.J¼_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _,

Necessity

Dudley and Stephens (1884) 14 QBD 273

Z, X, and S were shipwrecked about 1600 miles from land. S was 17 years old, a

cabin boy. After drifting for 20 days Zand X killed Sand ate bis flesh. Four days

later they were picked up by a passing ship. On their return to England they were

convicted of murder. Their claim of necessity to save themselves from death was

rejected. The message was clear that necessity did not justify the JciUing of an

innocent victim.

Duress by threats

Abdul Hussain and Othe_n (1999) Crim LR 570

Z and others were Shiite Muslims from Iraq who had fled to Sudan. They feared they

were going to be returned to Iraq where it was likely they would be tortured and

killed. They hijacked a plane which eventually landed in England. Their claim of

duress by threats was rejected by the trial court, and they were convicted. The Court

of Appeal quashed the convictions.

The court pointed that (1) The threat must be imminent but it need not be immediate,

and (2) The response to a threat need not be spontaneous.

112
uurns uI '--1numsgn1:es

Martin [1989] 1 All ER 652

Z was disqualified from driving. His wife threated to kill herself if Z did not drive his

step son to work. Failure to do so would have caused the job of the boy. Z drove the

boy to work, thus he contravened the disqualification.

The defence of <!mess

...
of circumstances can be successfully pleaded
.
provided

(1) Z ,must have acted as he did because he wanted to avert death or serious injury that

would result.

(2) A sober ordinary person of Z' s community woul~ have responded in the same

way to that situation.

Self-defence

R v. Chibabe Hangumba (1964] SJNR No. 17 of 1964 (HCNR)

The accused was charged with murder. He pleaded self-defence.

Charles, .J., having found that the accused caused the death of the deceased

continued.

A homicide is lawful if it is committed in preventing or resisting the commisson of

certain crimes in circumstances which render it either justifiable or excusable. When

so committed the homicide is said t<?.. have been committed in self-defence, or more

accurately by way either of public or of private defence. Justifiable homicide is

113 ~-1°"\5\V

~,,-;jt,,;<f· ,,yk·>
 ;'0ji-'})1/t.¥.&i'.m--------------·

ii,:ili~•"
homicide committed in the course of preventing or resisting the commission of

treason or of a forcible and violent felony. Excusable homicide is homicide

committed in the COUI'S of preventing or resisiting the commission of an assault or

trespass which was not a forcible and violent felony. Toe other constituent elements

of each form of homicide are identical; namely, that the accused did the act 'which

caused the homicide in the honest belief that it was necessary in order to prevent or

resist the commission of the crime in the course of which it was done, and the doing

of the causative_ acf was reasonably necessary to prevent or resist the commission of

the crime.

Although the distinctin between justifiable homicide and excusable homicide is based

on an historical difference in their consequences which no longer exist, there is still a

therorectical difference between them in the approach to the question whether the

causative act was reasonably necessary. A person present at the commission of a

treason or of a forcible and violent felony is not boud to retreat from the scene: on the

contrary, his duty is to assist in the arrest of the offender (c.f. Criminal Procedure

Code, section 27). On the other han~ the prospective victim of an assault or trespass

which is not a forcible and violent felony is uclner a duty to retreat, if that is

reasonably possible, in order to avoid the commission of the assault or trespass upon

him and is only entitled to resort to force for that purpose when he is unable to retreat

or to retreat further. Consequently, the availability of retreat is not a factor in detering

whether the causative act was reasonably necessary in order to· prevent or resist the

commission of a crime when the crime.was a treason or a forcible and violent felony,

but it is a factor in derterming that question when the crime was an assault or trespass

which was not a forcible and violent felony.

114
That means for practical purpose that, whenever self-defence-is set' up· on a _proper

basis in answer to a charge of murder or manslaughter, it is sufficient for the

prosecution's case if the relevant evidence established-beyond reasonable doubt any

of the following negatives, as that means that one of the three positive elements, all of

which are necessary to constitute justifiable or e~able homicide, did not exist:

(a) that the homicide did not occur in the course of the commission of a crime

which was either treason, a forcible and violent felony or any assault or

trespass which was not a felony of the kind last mentioned;

(b) That the accused did not do 'the act which caused the homicide in an honest

belief tht it was necessary to prevent the commission of the crime in the course

of which it was done;

(c) That the doing of the causative act was not reasonably necessary in order to
prevent the commission of the -crime in the course of which it was done,

having regard to - the natµre of the crime, the circumstances attending its

attempted commission and the nature of the causative act itself, and, when the

crime is the course of preventing which the causative act was done, was an

assault or trespass not amounting to a forcible and violent felony, the

opportunities, if any, which the prospective victim had to discharge his duty to

retreat out of danger, if possible instead of doing the causative act.

The accused's second statement to the police, which was in amplification of his first

statement, indicates that all three conditions for rendering the kiting,. justifiable or

excusable existed here. Consequently~ unless I am satisfied beyond reaosnable doubt

that it was false, and conversely tha the evidence of the two principal ·witnesses for the

115

,N.!7:J
 ; _____________
"'""

Crown is true, the accused must be acquitted completely, since the existence of any

one of the three conditions bas not been negatived. The accused was found.not gu:ilty.

The People v. Madewa (1973) ~.147 (BC)

The accused was charged with murder. The deceased was vising a woman in a one-

roomed house which had a heavy .lean-to-door made up of pieces of wood. The

woman asked the deceased to leave because she was expecting the accused to arrive.

The deceased refused to leave. Later the accused arrived, tried to get in and it

appeared from the evidence of the woman that the deceased was prepare4 to fight the

accused. The lean-to-door collapsed outwards on· top of the accused. The court

accepted as a story which could reaonably be true, the accused's evidence that he was

struck a heavy blow by the deceased, that he fell down and that the door fell outwards

on top of him, and that the deceased was on top of the door hitting him and stepping

on him. He··was inno position to strike back and defend himself. He was a business

man and frequently carried large sums of money and he customarily carried a pistol

for self-protection. He managed to get this pistol out of his pocket and he fired once

to the side in an attempt to frighten the deceased; the latter came at him again and in

desperation he fired again. The accused did not know whether he had hit the deceased

but the court found as a fact that the deceased died as a result of a bullet wound

inflicted by the accused.

It was contended on behalf of the prosecution that the accused had not retr~ated as tar

as he could before firing his pistol and that in any event to fire a pistol was in the

circumstances using excessive force.

116
Cullinan9 AGJ : Having examined the evidence, continued.

There is first the aspect of retreat, not alone before the door fell but after it did so.

The modern law on the topic was, in our respectful view, accurately set out in R v._

Julien [1969] 2 All ER 856 at 8S8 by Widgery, LJ. In the following terms:

'it is not, as we understand it, the law that a person threatened must take to his

heels and run in the dramatic way suggested by counsel for the appellant; but

what is necessary is that he should demonstrate by his actions that he does not

want to fight He must demonstrate that he is prepared to temporise and

disengage and perhaps to make some physical withdrawal; and to the extent

that that is necessry as a feature of the justification of self-defence, it is 1rue, in

our opinion, whether -the charge is a homicide charge or something less

serious'.

'Based on the above and other authorities I have,· at these sessions, held that the test to

be applied is an objective one of reasonable reason on the part of the accused.

Applying that test· to the present case I find that no reasonable man could be expected

to retreat from the door of a house under the circumstances which I have detailed.

When the door fell on the accused all hope of retreat was lost'.

The court held that the use of the pistol could not be· considered to amount to

excessive use of force. Accused was acquitted.

117

ifli'/:(.J;'I
 .<hili+B!l•·--------------
Jackson v. R (19621 R and N-157 (FSC)

The appellant was convicted of murder. After a minor quarrel over a bicycle the

~ came to the house·

.
of the appellant, where he was• sitting ·on his verand•
. . ~ ·:

and attacked him by hitting him on the head with his fist and so·knocking him over.

As the appellant tried to get up, the deceased ·came at him to renew the. attack. The

appellant seized a hoe which chanced to be lying at hand, which he thought was a

heavy stick. He bit the deceased with it three times on the head, causing injuries from

which the deceased died. The court found that the last blow was delivered when the

deceased bad ab:eady fallen to the ground.

Briggs, FJ.: The learned judge appears to have accepted that the appellant had no way

of escape or retreat and was entitled to defend himself in a proper manIJ.er against the

unprovoked attac~ but he said,

'Taking the fullest account of the fact that the alleged assault took place when

the accused was sitting on the verandah outside his house, and regarding his

right of self-defence in the most generous terms from the accused's point of

view, the court is unable to find any measure of justification for what he did,

sufficient to reduce his offence from murder to manslaughter'.

It is submitted for the appellant that the learned judge did not direct himself correctly

or sufficiently on the two issues arising - first, whether the appellant might be entitled

to an acquittal, and secondly, whether his actions, in view· of his right to defend

himself to some extent, might amount only to manslaughter. The final submission to

us was not that the appellant ought to have been acquitted, but that a proper

consideration of the law would have led to a verdict of manslaughter.

118
 There is, however, strong authority in the contrary_~- In R v. _Howe [1958], 100

... had been convicted of murde,.. by the Supreme Court of South

CLR 51, the respondent

Australia. On appeal, the full court quashed the conviction on grounds of

misdirection and ordered a retrial. The Crown ap~~ to the High Court of

Australia by special leave on the ground that the trial court's direction was correct,
and the full court had taken an incorrect view of the law. Two questions of law were

involved, the first being as to the necessity. for retreat in cases of self-defence. This is

not material for purposes of this case, since it was found here that the appellant could

not retreat. The second question, fundamental in this case, was stated by Dixon, CJ.,

to relate to (p. 4567)

' ...the effect of an' excessive use of violence on the part of a defendant "Yho but

for Uuu would be able to make out a plea of self:.defencc as an answer to a

charge of murder.. If death ensues because he has resorted to an. unnecessary

~- ,· .measure of force in resisting an attack or threa~ned attaclc, a degree of force

out of reasoble proportion to the danger, does that leave the defendant guilty

of murder oris his crime manslaughter'?

' If the acts of the appellant are considered on the footing that the last of his three.blows

was delivered before the deceased was incapacitated, I think the correct conclusion is

that, although much more. was done than was strictly necessary for •legitimate. self-

defence, there was nothing in the acts of the appellant or in the. surrounding

circumstances, which established malic afore-thought, and the appellant was not

guilty of murder but only of manslaughter.

119
 +fr+,.-,_...................._ _ _ __

Simoni v. R [1962] R & N 133 (FSC)

'
The appellant was convicted of murder by the High Court in Nyasaland and sentenced

to death. He suspected 'that Mofolo the deceased, correctly as it turned out, had stole
.
some fish.belonging to the appellant. He chased the d ~ and assulted ·him in

order to recover the fish. The deceased later died from the injuries he received. ~

The court held that:

In convicting the appellant the learned judge found that an intent to cause death was

not establish~ but he found that there was malice aforethought bec~use the

appellant, in terms of s. 212(a) of the Nyasa.land Penal Code~ had an intention 'to do

grievous harm'. In so deciding he held that the test whether there was such an intent

was an objective test.

In the absence of any evidence as to what happened when the appellant caught up

With Mofolo, the account given by the appellant cannot be disregarded. Unless in his

description of how he assaulted Mofolo he is proved to be untruthful. He did not hit

Mofolo with a fist, but caught him round .the neck and throttled him. But the

appellant did not set out to 'maim or wound' in the recovery of his property; he took

no weapon with him, and no weapon was used. There is nothing to show that the

assault did not start as the appellant says it did, with initial denial of the the~ and

then admission of it~ but refusal to hand back the property. There is nothing to

indicate that the appellant continued with the assault after Mofolo dropped the fish, so

that it could be recovered. The throttling did not continue until Mofolo was dead, for

he was still alive at a time which was more than half an hour later.

120
 On these facts there· is, I consider, a reasonable possibility that what happened may
' ·.. .

have been that the appellant seized Mofolo by the throat and shook him until he

dropped the fish. A reasonable shaking in that _way. mi~ have been justified to

recover the stolen property. It is obvious of course that more force than was proper

was used, and for that the appellant is criminally responsible.

With the substitution of the phrase 'not to defend oneself' of the phrase 'not to

recover property unlawfully taken and kept' the passage applies in this case in my

view. The facts do not show what must be shown as regards intent before there can

· be a conviction for murder.

The court allowed the appeal and _conviction for manslaughter substituted.

REVISION QUESTIONS

• At what age can a child, in Zambia, be capable of committing a crime?

$ • What procedures are to be followed in the trial of a child under eight year of age?

• Distinguish between justificatory and excusatory defences.

• Summarise the M'Naghten rules and explain their relevance today.

• Who bears the burden of proof in cases involving the defence of insanity?

• What is meant by the 'defect of reason' as regards insanity?

• Define automatism and assess its relevance as a complete defence.

• What reasons can you offer for the general proposition that intoxication is no

defence to the commision of offences?

• Why does involuntary intoxication is a defence to the commission of offences?

• What is abnormality of mind, as regards criminal responsibility?

121

M,,,L<\<i,
 '')';)/!JP!i!\\I'_ _ _ _ _ _ _ _ _ _ _ _ __

• Explain 'substantial impairment of . responsibility' in respect of diminished

.. ....•.: . _
~ { '

responsibility.

• Distinguish between duress by threats and.4uress Qf circumstances. :,,.•,i :• I

• What is the legal implication of the test that .ii;t duress

.
by ~ts,
. . ....the: threats must
,:

be imminent but not immediate?

• What characteristics has the sober person of reasonable firmness?

• Self-defence is a justifiable defence. Do you agree? Discuss.

• What test should be applied in assessing. the degree of reasonable force in self-

defence?

• Is it permissible to resort to pre-emptive force for the purposes of self-defence?

• What is a fatal force in respect of self...defence?

• Is necessity a defence to murder? Discuss thoroughly.

• Summarise the judgment of the court in Dudley and Stephens v. R [1884] 14 QBD

273.

122
 lJ

INTERNATIONAL CRIMES

8.1 OBJECTIVES

After studying this chapter the student should be able to

• Understand what is meant by international crime.

• Understand international Criminal Law.

• Explain why genocide is the most serious international crime.

• Describe the functions of the International Criminal Court.

• Define the role of the Prosecutor of the International Court.

• Apply international Law to international crimes.

KeyP21Pfs
In recent ye~ the concept of international criminal justice has pre-occupied the

concerns of the world community. Because of these concerns, the world has witnessed

the·establishment of the International Criminal Court (ICC) in 1998.

Before the ICC, other international criminal tribunals were established,. including the

International Criminal Tribunal for the Former Yugoslavia (ICTY)~ 1993; and the

International Criminal Tribunal for Rwanda (ICTR), 1994. The ICC functions in

accordance with a statute: known as the Rome Statute.

The primary aim of the ICC is to prosecute and punish states, public figures and private

persons for the commission of international crimes.

The ICC has a prosecutor who inveS1igates and indicts those who are alleged to have

grossly violated human rights and humanitarian law anywhere in the world.

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