THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCATION

SCHOOL OF LAW

CRIMINAL LAW (LPU 2940) - ASSIGNMENT 1

STUDENT: Mr. Mulife MULELE

ID No.: 22101625

CELL: +260 964 716 072

EMAIL: brian.mulele@gmail.com

COURSE: CRIMINAL LAW

COURSE CODE: LPU 2940

YEAR OF STUDY: 2nd YEAR

LECTURER: Mr. Collins KAKOMA

CELL: +260 977 932 177

EMAIL: criminalaw2940@gmail.com

TASK: ASSIGNMENT 1

DATE DUE: FRIDAY, 31ST MARCH 2023

DECLARATION: I hereby do declare that this paper represents my work.

© 2023
ACTUS NON FACIT REUM NISI MENS SIT REA

1 INTRODUCTION
According to J. F. Stephen, 1the maxim “Actus non facit nisi mens sit rea” implies that
“there can not be such a thing as legal guilt where there is no moral guilt”. Lord Hailsham
(1975) 2 explained the maxim “actus non facit reum nisi mens sit rea” in these words “an
act does not make a man or woman guilty of a crime unless his or her mind is also guilty”.
The maxim helps to explain the application of men’s rea, by showing that a defendant is
only criminally liable if the conduct intends to commit a crime. Hence, it helps in
determining whether certain conduct is illegal or not.

To establish criminal liability following elements must be satisfied:

i. There must be guilty conduct by the defendant (actus reus);

ii. The defendant must have a guilty state of mind (men’s rea) and;
iii. There must be no valid defence.3

2 EXPLANATION OF THE MAXIM “ACTUS NON FACIT REUM NISI MENS SIT REA”
The Latin maxim “actus non facit reum nisi mens sit rea” is explained below, using the
three elements that determine criminal liability, i.e. actus reus, men’s rea and strict liability.

2.1 Actus Reus (prohibited conduct)

This can be defined as whatever act, omission or state of affairs as laid down in the
definition of the particular crime charged in addition to any surrounding circumstances and
any consequences of the act or omission as the definition of that particular crime requires

The actus reus consists of:

i. An act (conduct) or an omission;

ii. Occurring in defined surrounding circumstances; and

1
J F Stephen, History of Criminal law of England (vol. 11 OUP, Oxford 1883) 94.
2
Haughton v Smith (1975) AC 476 at 491, HI
3
All Answers ltd, 'Actus Reus Lecture' (LawTeacher.net, March 2023)
<https://www.lawteacher.net/lectures/criminal-law/committing-an-offence/actus-reus/?vref=1> accessed 30 March
2023

1
 iii. Causing any requisite prohibited consequence4

In the case of Edward Sankalimba, 5 the actus reus was committed when he repeatedly
stabbed his wife three times in the chest leading to her death. Criminal liability occurred
because the act was committed to inflict serious harm to the victim, which eventually led to
her death.

2.1.1 Voluntariness
A situation where the actus reus occurs when the muscular movement of the accused
person is under his or her control and the direction of the accused person’s conscious is
known as voluntariness6. In the absence of a valid defence, the defendant is guilty of
criminal liability.

In the case of The People v Mudedwa, 7 the defendant entered a single-roomed dwelling
of his girlfriend, the deceased kicked down the door, which fell on him and started to
punch him repeatedly. He shot at the deceased, missing him once when he started to
punch him repeatedly, but shot at him again, which led to his demise. He pleaded self-
defence, and he successfully pleaded self-defence, which led to his acquittal. The firing
of the bullet, which inflicted the fatal wound resulting in the demise of the deceased, was
the actus reus, which was committed voluntarily with a guilty mind.

The term automatism (autonomic), the opposite of voluntariness, occurs when the
muscular movement of the accused person is involuntary. In cases of criminal liability
emanating from automatism, the accused person is considered not to have performed the
actus reus.8

4
Simon E Kulusika, Criminal Law in Zambia: Doctrine, Theory and Practice; Chribwa Publishers, 2020. Chapter 2,
Page 38
5
Edward Sankalimba v The People (1981) ZR 258
6
Simon E Kulusika, Criminal Law in Zambia: Doctrine, Theory and Practice; Chribwa Publishers, 2020. Chapter 2,
Page 38
7
Mudedwa v (1973) ZR 147, HC.
8
All Answers ltd, 'Insanity, Automatism and Intoxication Criminal Law Lecture' (LawTeacher.net, March 2023)
<https://www.lawteacher.net/lectures/criminal-law/denials-defences/insanity-automatism-intoxication/?vref=1>
accessed 31 March 2023

2
 The case of R v Hennessy9 is an illustration of a defendant suffering from automatism. In
this case, the appellant was caught, while driving a stolen car. He collapsed at the police
station due to a diabetic episode, having had no insulin for days. He was charged with
theft and driving while disqualified. He claimed not to recall taking the car, his defence
of automatism was rejected and he was convicted. The judge ruled that he should have
pleaded insanity instead.

2.1.2 Omission
An omission occurs when there is a failure to act when under a duty to act, and may
attract sanctions on the defendant. This is unlike most cases, in which action is required
to satisfy the actus reus.10 It is important to investigate the situation in question to prove
whether the defendant had a duty to act.

In the case of R v Speck11, not removing the young girl’s hand, over his trousers right
above his penis, resulted in a criminal conviction. The omission was the failure to remove
the little girl’s hand.

In R v Miller12, the accused fell asleep while smoking and accidentally caused a fire.
When he woke to find the fire ablaze, he did not put it off, but instead went to sleep in
another room without putting it out, leading to his being convicted of arson. The omission
was not putting out the fire.

In Chitenge v The People13, the accused did not find out whether or not someone was
inside the house before setting it on fire causing his death.

Sections 210 through to section 214, including section 169 and 170 of the Penal code
chapter 87 of the laws of Zambia guides the criminal liability that may arise due to
omissions.

9
All Answers ltd, 'R v Hennessy - 1989' (Lawteacher.net, March 2023) <https://www.lawteacher.net/cases/r-v-
hennessy.php?vref=1> accessed 31 March 2023
10
All Answers ltd, 'Actus Reus Lecture' (LawTeacher.net, March 2023)
<https://www.lawteacher.net/lectures/criminal-law/committing-an-offence/actus-reus/?vref=1> accessed 30 March
2023
11
R v Speck (1977) 2 All ER 859, CA
12
R v Miller (1983) 2 AC 161, HL.
13
Chitenge v The People (1966) ZR 373

3
2.1.3 Causation
Causation is in two categories, namely factual and legal causation. The two must be
satisfied to effect a conviction of a defendant14.

i. Factual causation (‘but for’)

In the case of R v White15, the defendant laced their mother’s drink with
potassium cyanide to kill her. She eventually died of a heart attack in her sleep.
The ‘but for’ test of causation was applied, could the victim have died had it not
been ‘but for’ the defendant’s actions? It was held that the attempted murder had
begun, despite the mother having died from a heart attack. The defendant was
convicted of manslaughter.
ii. Legal causation
Kulusika16 explains that:
“If X’s conduct caused the prohibited consequence, X would be responsible for
the occurrence of the prohibited consequence. But the court must be satisfied that
X’s conduct was the cause in law”.
In R v Kimsey17, the appellant received a two-year jail term and suspended
driving for a period of four years. The appellant contributed to causing the death
of the deceased whom they were racing with at high speed in a convoy. The legal
issue was ascertaining what caused the death of the deceased.

2.2 Mens Rea

Kulusika18 defines mens rea as:

“…state of mind X must be proved to have as required by the definition of the offence
charged”.

14
All Answers ltd, 'Actus Reus Lecture' (LawTeacher.net, March 2023)
<https://www.lawteacher.net/lectures/criminal-law/committing-an-offence/actus-reus/?vref=1> accessed 30 March
2023
15
R v White [ 1990] 2 KB 124
16
Simon E Kulusika, Criminal Law in Zambia: Doctrine, Theory and Practice; Chribwa Publishers, 2020. Chapter 2,
Page 52
17
All Answers ltd, 'R v Kimsey - 1996' (Lawteacher.net, March 2023) <https://www.lawteacher.net/cases/r-v-
kimsey.php?vref=1> accessed 31 March 2023
18
Simon E Kulusika, Criminal Law in Zambia: Doctrine, Theory and Practice; Chribwa Publishers, 2020. Chapter 2,
Page 54

4
 A defendant must have the mens rea or guilty mind at the same time they have the mens
rea. The four areas of men’s rea are intention, negligence, recklessness and strict liability.

3 EXCEPTIONS TO THE MAXIM ACTUS NON FACIT REUM NISI MENS SIT REA
A crime to which men’s rea is not a necessary criterion is an exception to the rule. An
example is in the defence arising from insanity, this is because criminal intent cannot be
attributed to a person who due to mental incapacitation is unable to understand the nature of
the crimes or to discern between good and evil.

4 CONCLUSION
The criminal law system has been able to function well so far because of the application of
the maxim actus non facit reum nisi mens sit rea. The elements of criminal liability have
been made easier to interpret and understand to the various situations that arise in criminal
law because of this maxim.

5 Bibliography
5.1 Statutes
Section 169 of the Penal code

Section 170 of the Penal code

Section 211 of the Penal code

Section 212 of the Penal code

Section 213 of the Penal code

Section 214 of the Penal code

5.2 Cases
Edward Sankalimba v The People (1981) ZR 258

Haughton v Smith (1975) AC 476 at 491, HI

Mudedwa v (1973) ZR 147, HC.

R v Hennesy {1989] 1nWLR 297

5
 R v Kimsey [1996} Crim LR 35

R v Miller (1983) 2 AC 161, HL.

R v Speck (1977) 2 All ER 859, CA

R v White [1990] 2 KB 124

5.3 Books
Simon E Kulusika, Criminal Law in Zambia: Doctrine, Theory and Practice; Chribwa
Publishers, 2020.

5.4 Websites
All Answers ltd, 'Actus Reus Lecture' (LawTeacher.net, March 2023)
<https://www.lawteacher.net/lectures/criminal-law/committing-an-offence/actus-
reus/?vref=1> accessed 30 March 2023

All Answers ltd, 'Insanity, Automatism and Intoxication Criminal Law Lecture'
(LawTeacher.net, March 2023) <https://www.lawteacher.net/lectures/criminal-law/denials-
defences/insanity-automatism-intoxication/?vref=1> accessed 31 March 2023

All Answers ltd, 'R v Hennessy - 1989' (Lawteacher.net, March 2023)

<https://www.lawteacher.net/cases/r-v-hennessy.php?vref=1> accessed 31 March 2023

All Answers ltd, 'R v Kimsey - 1996' (Lawteacher.net, March 2023)

<https://www.lawteacher.net/cases/r-v-kimsey.php?vref=1> accessed 31 March 2023