SSRN Id3894693

A CRITICAL EXAMINATION OF DEFENCES TO CRIMINAL LIABILITY IN
NIGERIA: LESSONS FROM OTHER JURISDICTIONS.
BY
TAJUDEEN-AJIBOYE MUSAB A.
MATRIC NO: LAW/2014/0048
BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW, OSUN STATE
UNIVERSITY, IFETEDO CAMPUS, NIGERIA IN PARTIAL FULFILMENT OF
THE REQUIREMENTS FOR THE AWARD OF THE BACHELOR OF LAWS (LL.B
HONS) DEGREE.
Electronic copy available at: https://ssrn.com/abstract=3894693

CERTIFICATION
I, TAJUDEEN-AJIBOYE MUSAB A., hereby certify that this Long Essay titled “A
CRITICAL EXAMINATION OF DEFENCES TO CRIMINAL LIABILITY IN NIGERIA:
LESSONS FROM OTHER JURISDICTIONS.” is my original work and that no part of it has
been submitted for any other degree or qualification.
TAJUDEEN-AJIBOYE MUSAB A. LAW/2014/0048 __________________
NAME MATRIC NO SIGNATURE/DATE
ii

APPROVAL PAGE
This Long Essay titled “A CRITICAL EXAMINATION OF DEFENCES TO CRIMINAL
LIABILITY IN NIGERIA: LESSONS FROM OTHER JURISDICTIONS.” and written by
TAJUDEEN-AJIBOYE MUSAB A. has been read and approved as meeting the standards of
the Faculty of Law in partial fulfilment of the requirements for the award of the Bachelor of
Laws (LL.B Hons) degree of the Osun State University, Ifetedo Campus, Nigeria.
R.A. MMADU ______________________
Name of Supervisor Signature/Date
Prof. O.A GBADAMOSI ______________________
Name of Dean Signature/Date
iii

ACKNOWLEDGEMENTS
I give Almighty Allah glory and thanks for his immeasurable blessings and for giving me the
strength to successfully complete this course.
My profound gratitude goes to my loving parents, Alhaji Ajiboye T.O. and MrsAjiboye R.O.
for their love, prayers, understanding, words of encouragement, huge investments to my
progress, and immeasurable contributions to my success in life. May you live long to enjoy
the fruits of your labour. Amin.
I express my profound gratitude to my erudite supervisor R.A. Mmadu esq. for his
constructive criticisms, intellectual support and guidance.
For the affection always shown towards me, I appreciate my siblings Ajiboye Aishah,
Ajiboye Fatimah, Ajiboye Khadijah, and Ajiboye Zainab.
I say a big thank you to Olabode Shinning-Favour for his immense contribution to this work.
I give special thanks to my ever loving grandma, Mrs Balogun Silifat Aduke, Onasanya
Modinat Abiodun, Mr IIbrahim Balogun, Olafare Olubunmi, Ajiboye Fatima, Mr Gboyelade
Sulaymon Adewale, Mr Amoo-Usman Asimi Akinade, Abdurrazaq Ishaq, Alhaji Gbadamosi
Mohammed Murtala, Mrs Amusa Rukayat Titilayo, Alhaji Taiwo Hassan Adesina, Dr Hafsat
Adesina, Mr Ajiboye Qazim Gbolahan, Mrs Bashorun Olokodana, Alhaji Abd Wasiu
Bashorun, Mrs Gbadamosi A.A., and Mrs Gbadamosi I.M.for their contributions in my life.
Special thanks go to Ajala Oluwadamilola Esther without whom I may not have passed my
final exams, thank you for being in my life.
I appreciate my friends Molumo Ayomide, Abdul Malik Saheed, Giwa Nurullah, Akinola
Olatunji, Ogunwusi Timileyin, Bamisaye Timileyin, Adeyefa Adesewa Alima, Raji Abdul-
Majeed, Adebayo Shalom, Adeyinka Femi, Awwal Lawal, Abdul-Azeez Imam, Olabisi
Folarin, Adegbite Adejare, Akomolafe Ayomide, and Akobi Tomiwa for always being there
for me, I love you all.
iv

CONTENTS PAGE
Table of Contents
A CRITICAL EXAMINATION OF DEFENCES TO CRIMINAL LIABILITY IN

NIGERIA: LESSONS FROM OTHER JURISDICTIONS. ....................................................... i
CERTIFICATION .....................................................................................................................ii
APPROVAL PAGE ................................................................................................................. iii
ACKNOWLEDGEMENTS ...................................................................................................... iv
CONTENTS PAGE ................................................................................................................... v
ABSTRACT .............................................................................................................................. ix
TABLE OF STATUTES......................................................................................................... xix
CHAPTER ONE ........................................................................................................................ 1
GENERAL INTRODUCTION .................................................................................................. 1
1.1 BACKGROUND TO THE STUDY .................................................................................... 1
1.2 STATEMENT OF THE PROBLEM ................................................................................... 1
1.3 RESEARCH QUESTIONS ................................................................................................. 2
1.4 RESEARCH OBJECTIVES ................................................................................................ 2
1.5 RESEARCH METHODOLOGY......................................................................................... 2
1.6 SIGNIFICANCE OF THE STUDY ..................................................................................... 3
1.7 SCOPE AND LIMITATION ............................................................................................... 3
CHAPTER 2 .............................................................................................................................. 4
SELF-DEFENCE, PROVOCATI1OON, AND ALIBI ............................................................. 4
2.1 SELF DEFENCE ................................................................................................................. 4
2.1.1 SELF DEFENCE IN NIGERIA........................................................................................ 4
2.1.2 INGREDIENTS FOR A SUCCESSFUL PLEA OF SELF DEFENCE ........................... 5
2.1.3 DEFENCE OF OTHERS ................................................................................................ 12
2.1.4 SELF-DEFENCE IN ENGLAND .................................................................................. 13
2.1.5 INGREDIENTS OF A SUCCESSFUL PLEA OF SELF DEFENCE ............................ 13
2.1.6 THE PERMITTED RESPONSE .................................................................................... 15
2.2 PROVOCATION ............................................................................................................... 29
2.2.1 DEFENCE OF PROVOCATION IN NIGERIA ............................................................ 29
2.2.2 INGREDIENTS FOR A SUCCESSFUL PLEA OF PROVOCATION ......................... 30
2.2.3 OTHER REQUIREMENTS ........................................................................................... 34

2.2.4 NATURE OF PROVOCATION..................................................................................... 35
2.2.5 DEFENCE OF PROVOCATION IN SOUTH AFRICA................................................ 36
2.2.6 THE TEST FOR PROVOCATION ................................................................................ 36
2.2.7 NON-PATHOLOGICAL CRIMINAL INCAPACITY .................................................. 43
2.2.8 A COMBINATION OF THE SUBJECTIVE AND OBJECTIVE TESTS .................... 50
2.3 ALIBI ................................................................................................................................. 51
2.3.1 THE DEFENCE OF ALIBI IN NIGERIA ..................................................................... 51
2.3.2 INGREDIENTS FOR THE DEFENCE OF ALIBI ........................................................ 52
2.3.3 HOW THE DEFENDANT IS EXPECTED TO RAISE THIS DEFENCE ................... 53
2.3.4 SUCCESSFUL PLEA OF ALIBI ................................................................................... 56
2.3.5 THE DEFENCE OF ALIBI IN CANADA ..................................................................... 57
2.3.6 DELAYED DISCLOSURE OF ALIBI .......................................................................... 57
2.3.7 OBLIGATION TO DISCLOSE ALIBI .......................................................................... 59
2.3.8 RIGHT TO SILENCE..................................................................................................... 63
2.3.9 ALIBI NOTICE AS EVIDENCE ................................................................................... 67
CHAPTER 3 ............................................................................................................................ 71
JUDICIAL AND SUPERIOR OFFICERS IN EXECUTION OF THE LAW AND
INTOXICATION ..................................................................................................................... 71
3.1 JUDICIAL AND SUPERIOR OFFICERS IN EXECUTION OF THE LAW .................. 71
3.1.1 JUDICIAL AND SUPERIOR OFFICERS IN EXECUTION OF THE LAW IN
NIGERIA ................................................................................................................................. 71
3.1.2 JUDICIAL OFFICERS ................................................................................................... 71
3.1.3 THE EXECUTION OF THE LAW ................................................................................ 72
3.1.4 SUPERIOR ORDERS .................................................................................................... 72
3.1.5 THE DEFENCE OF SUPERIOR ORDERS IN ENGLAND ......................................... 74
3.2 INTOXICATION ............................................................................................................... 75
3.2.1 THE DEFENCE OF INTOXICATION IN NIGERIA ................................................... 75
3.2.2 INVOLUNTARY INTOXICATION.............................................................................. 76
3.2.3 VOLUNATRY INTOXICATION .................................................................................. 77
3.2.4 INTOXICATION AS A FACTOR IN NEGATIVING THE SUBJECTIVE MENTAL
ELEMENT IN CRIME ............................................................................................................ 78
3.2.5 INTOXICATION IN CRIMES NOT REQUIRING PROOF OF A SUBSTANTIVE
MENTAL ELEMENT ............................................................................................................. 82
3.2.6 THE DEFENCE OF INTOXICATION IN SOUTH AFRICA ...................................... 82
vi

3.2.7 THE PROVISION OF SECTION 1(1) OF THE CRIMINAL LAW AMENDMENT
ACT 1 OF 1988. ...................................................................................................................... 84
3.2.8 DESIRABILITY OF A STATUTORY CRIME............................................................. 85
3.2.9 REQUIREMENTS FOR A CONVICTION UNDER SECTION 1(1) ........................... 86
3.2.10 ELEMENTS OF THE OFFENCE ................................................................................ 88
3.2.11 CREATION OF A SEPARATE CRIME ..................................................................... 91
3.2.12 VOLUNTARY/INVOLUNTARY INTOXICATION .................................................. 92
3.2.13 CONSEQUENCE CRIMES ......................................................................................... 93
3.2.14 INTOXICATION EXCLUDING CAPACITY ............................................................ 94
3.2.15 INTOXICATION EXCLUDING INTENTION ........................................................... 95
3.2.16 INTOXICATION EXCLUDING A VOLUNTARY ACT........................................... 96
CHAPTER 4 ............................................................................................................................ 97
THE DEFENCE OF INFANCY AND INSANITY ................................................................ 97
4.1 THE INFANCY DEFENCE .............................................................................................. 97
4.1.1 DEFENCE OF INFANCY IN NIGERIA ....................................................................... 97
4.1.2 UNDER SEVEN ............................................................................................................. 98
4.1.3 SEVEN TO ELEVEN ..................................................................................................... 99
4.1.4 THE JUVENILE COURT ............................................................................................ 101
4.1.5 THE DEFENCE OF INFANCY IN AMERICA .......................................................... 102
4.1.6 THE CAPACITY ISSUE: CHILDREN UNDER SEVEN ........................................... 102
4.1.7 REBUTTABLE INCAPACITY: THE BURDENS OF PROOF AND PERSUASION
................................................................................................................................................ 103
4.1.8 STANDARD OF PROOF ............................................................................................. 105
4.1.9 THE TEST FOR CAPACITY ...................................................................................... 107
4.1.10 EVIDENCE REQUIRED TO PROVE CAPACITY .................................................. 108
4.2 INSANITY ....................................................................................................................... 110
4.2.1 THE DEFENCE OF INSANITY IN NIGERIA ........................................................... 110
4.2.2 INABILITY TO MAKE A DEFENCE ........................................................................ 111
4.2.3 INGREDIENTS OF A PLEA OF INSANITY ............................................................. 112
4.2.4 THE DISEASE OR INFIRMITY ................................................................................. 112
4.2.5 LACK OF CAPACITY ................................................................................................ 113
4.2.6 DELUSION AND INSANITY ..................................................................................... 114
4.2.7 PROOF OF INSANITY ................................................................................................ 115
4.2.8 BURDEN OF PROOF OF INSANITY ........................................................................ 116
vii

4.2.9 EFFECT OF A FINDING OF INSANITY ................................................................... 117
4.2.10 THE DOCTRINE OF DIMINISHED RESPONSIBILITY ........................................ 118
4.2.11 THE DEFENCE OF INSANITY IN NEW ZEALAND............................................. 119
4.2.12 THE DEFENCE OF INSANITY: THE M’NAGHTEN RULES ............................... 119
4.2.13 THE PRESUMPTION OF SANITY .......................................................................... 121
4.2.14 THE TWO LIMBS OF THE RULES ......................................................................... 123
4.2.15 WHO MAY RAISE THE ISSUE OF INSANITY ..................................................... 124
4.2.16 BURDEN AND STANDARD OF PROOF OF THE INSANITY DEFENCE .......... 125
CHAPTER 5 .......................................................................................................................... 127
CONCLUSION AND RECOMMENDATION ..................................................................... 127
5.1.0: CONCLUSION ............................................................................................................ 127
5.2.0: RECOMMENDATIONS ............................................................................................. 127
BIBLIOGRAPHY .................................................................................................................. 130
viii

ABSTRACT
The Nigerian Legal System in relation to the defences to criminal liability is faced with many
lacunas. In the field of criminal law, there are a variety of conditions that will tend to negate
the elements of a crime (particularly the intent element), known as defences. There are
various defences to criminal liability which include the general defences and specific
defences.
In its attempt to critically examine the defences to criminal liability in Nigeria, this work
makes an analysis of the operation of some defences in Nigeria as well as the operation of
each defence in another jurisdiction in a bid to compare and contrast the operation of the
defences in Nigeria and other jurisdictions and also examine lessons that may learnt. The
defences treated are provocation, alibi, intoxication, infancy, self-defence, insanity, and
judicial and superior officers in the execution of the law.
The aim of this research is to analyse the meaning and scope of defences to criminal liability
in Nigeria and also compare and contrast the operation of each Nigerian defence to criminal
liability analysed with the operation of such defence in another jurisdiction.
It further aims to identify the lacunas, if any, present in the Nigerian defences to criminal
liability and as well proffer a workable solution so as to help reform the lacunas that may be
found.
ix

TABLE OF CASES
Cases
Abbot ........................................................................................................................................ 74
Adams v. Maryland, 8 Md. App. 684, 262 A.2d 69 (1970) .................................................. 105
Adams v. State, 8 Md. App. 684, 689, 262 A.2d 69, 72 (1970) ........................................... 103
A-G of South Australia v Brown [1960] AC 432 ................................................................... 122
Agu v. State ............................................................................................................................. 56
Akpan v. State ........................................................................................................................... 6
Albert v Lavin [1982] A.C. 546 ............................................................................................... 18
Anderson v Gorrie [1895] 1 Q.B. 668 ..................................................................................... 72
Andronicou v Cyprus (1998) 25 E.H.R.R. 491 ........................................................................ 20
Asuquo v State (2014) LPELR-23490(CA) ............................................................................. 55
Attorney-General for N. Ireland v. Gallagher ........................................................................ 81
Bakare v State [1987] 1 NWLR (Pt 52) at 579 ........................................................................ 56
Bedder v. D.P.P. ..................................................................................................................... 31
Bello v. State ........................................................................................................................... 34
Bozin v. State .......................................................................................................................... 54
Bratty [1963] AC 386, 411 to 412 ................................................................................. 124, 125
Bratty v. Attorney-General for Northern Ireland ................................................................. 123
Broadhurst v R [1964] 1 All E.R. 111 at 123 (P.C.)............................................................... 81
Carr-Briant [1943] KB 607 ................................................................................................... 125
Cheminingwa v R (1956) 23 E.A.C.A. 451 ............................................................................. 81
Chutuwa v R (1954) 14 W.A.C.A 590 ..................................................................................... 82
Clarke [1972] 1 All ER 219 ................................................................................................... 122
Clegg ........................................................................................................................................ 74

Codère (1917) 12 Cr App Rep 21, 27 .................................................................................... 123
Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978) ....................... 104, 106
Cooper v McKenna [1960] Qd LR 406, 419.......................................................................... 121
D.P.P v. Beard ........................................................................................................................ 77
D.P.P. v Bailey......................................................................................................................... 15
D.P.P. v Camplin (1978) 2 W.L.R.697 .................................................................................... 31
D.P.P. v Majewsky [1976] 2 W.L.R. 623 ................................................................................ 79
Dearnley v R. [1947] St.R.Qd. 51 ............................................................................................ 81
Devlin v. Armstrong ................................................................................................................ 14
Dickie [1984] 1 WLR 1031.................................................................................................... 125
Dim v R (1952) 14 W.A.C.A.154 .......................................................................................... 116
Ededey v. State ........................................................................................................................ 72
Effiong Idofia v State (1981) 11-12 S.C. 49 .......................................................................... 115
Eke v. State.............................................................................................................................. 52
George v State (1991) 9 N.W.L.R. (pt. 91) 208 .................................................................... 115
Gul v Turkey (2002) 34 E.H.R.R. 28. ...................................................................................... 20
Hennessy [1989] 1 WLR 287, 292 ......................................................................................... 122
Hill v Baxter [1958] 1 QB 277 ............................................................................................... 121
Ikemson v. State [1989] 3 NWLR (Pt.110) 455 ...................................................................... 53
In re Winship, 397 U.S. 358 (1970) ....................................................................................... 106
Jeffries & Stephan, supra note 231, at 1330-31 ..................................................................... 105
Jeffries & Stephan, supra note 231, at 1338-44 ..................................................................... 106
Kaplotwa Tarina v R (1957) E.A.553 .................................................................................... 111
Karimu v. State ......................................................................................................................... 7
Kemp ...................................................................................................................................... 122
xi

Kofi Mensah v. R ............................................................................................................... 79, 81
Kopsch (1927) 19 Cr App Rep 50.......................................................................................... 122
Kumo v State ............................................................................................................................ 30
Kwagshir v. State ...................................................................................................................... 8
Laba, supra note 1 at 1011 ...................................................................................................... 63
Lasis v. State ......................................................................................................................... 113
Layton (1849) 4 Cox’s Criminal Cases 149 ........................................................................... 121
Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977) .................................................. 106, 107
Loke v State (1985) 1 N.W.L.R. (pt. 1) page 1 ...................................................................... 112
M’Naghten’s Case (1843) 10 Clark and Finnelly 200, (1843) 8 ER 718, [1843-60] All ER
Rep 229 .............................................................................................................................. 119
Mbombela ................................................................................................................................ 39
McCann v United Kingdom (1996) 21 E.H.R.R. 97 ................................................................ 20
Miller v. Minister of Pensions................................................................................................. 55
Mohammed v. State ................................................................................................................. 52
Monday Chukwu v State (1994) 4 S.C.N.J. 85 ...................................................................... 115
Mullany v. Wilbur, 421 U.S. 684 (1975) .............................................................................. 106
Murray v United Kingdom (1996), 22 EHRR 297 ................................................................... 60
Mustapha v. State .................................................................................................................... 53
Natasha v. State ...................................................................................................................... 53
New Jersey v Gross, 523 A2d 212 (NJ Super AD 1987) ......................................................... 70
Nomad v. Bornu Native Authority .......................................................................................... 33
Ogbu v State (1992)10 S.C.N.J.88......................................................................................... 111
Ogidi v State [2003] 9 NWLR (Pt 824) at 1 ............................................................................ 56
Oladele v State (1991) 1.N.W.L.R. (pt. 170) 709 .................................................................. 112
xii

Otumbere v. State .................................................................................................................... 56
Patterson v. New York, 432 U.S. 197 (1977) ....................................................................... 106
People v Brown, 98 NY2d 226 at 235 (2002) .......................................................................... 70
People v Franklin Rodriguez, 2004 NY Int 147 ...................................................................... 70
People v Holland, 445 NW2d 206 (1989) ............................................................................... 70
People v Hunter, 291 NW2d 186 (1980) ................................................................................. 70
People v Lorenzo McCray, Mich CA LC 98-001064 (2001) .................................................. 70
People v Malone, 447 NW2d 157 (1989) ................................................................................ 70
People v Von Everett, 402 NW2d 773 (1986) ......................................................................... 70
People v. Keatley .................................................................................................................... 14
People v. Lang, 402 Ill. 170, 83 N.E.2d 688 (1949) ............................................................. 105
Podola [1960] 1 QB 325 ........................................................................................................ 125
R v Ashigifuwo (1948) 12 W.A.C.A 389 ............................................................................... 117
R v Butelezi .............................................................................................................................. 37
R v Chambers, [1990] 2 SCR 1293 at 1320 ............................................................................. 61
R v Cleghorn, [1995] 3 SCR 175 ............................................................................................. 61
R v Crozier [1965] Qd. R. 133 ................................................................................................. 79
R v Duffy (1949) 1 All E.R. 932 .............................................................................................. 29
R v Duke (1962) 46 Cr. App. R.42 ........................................................................................ 117
R v Ford (1993), 78 CCC (3d) 481, [1993] BCJ No 147 (QL) (CA) ...................................... 66
R v Gillespie (1990), 10 WCB (2d) 461, 1990 CarswellOnt 3957 .......................................... 67
R v Gorrie (1918) 83 J.P. 136 .................................................................................................. 99
R v Gulliver, 2018 SCC 24 ...................................................................................................... 58
R v Hinde, 2001 BCCA 723 at para 22, 52 WCB (2d) 143 [Hinde] ........................................ 67
R v Hogan (1982), 2 CCC (3d) 557 at 566 .............................................................................. 63
xiii

R v Innes Grant supra (n 13) .................................................................................................... 92
R v Inyang (1946) 12 W.A.C.A. 5 ......................................................................................... 116
R v Kotoro (1942) 8 W.A.C,A, 88 (Gold Coast case) ............................................................. 79
R v Levesque, 2003 ABCA 349, [2003] AJ No 1480 (QL) ..................................................... 63
R v Nagamu (1940) 6 W.A.C.A 74 ........................................................................................ 116
R v Nelson (2001), 147 OAC 358, [2001] OJ No 2585 (QL) (CA) ......................................... 66
R v Nicholson [1956] St.R.Qd. 520 ......................................................................................... 81
R v Nielsen (1984), 30 Man R (2d) 81, 16 CCC (3d) 39 (CA) ................................................ 70
R v Noble, [1997] 1 SCR 874 .................................................................................................. 60
R v O’Connor (2002) ............................................................................................................... 60
R v Ogor (1961) 1 All N.L.R. 70 ........................................................................................... 111
R v P(MB), [1994] 1 SCR 555 at 580 ...................................................................................... 60
R v Rossborough (1985), 81 CR App R 139, [1985] Crim LR 372 ......................................... 67
R v Russell (1936), 67 CCC 28 at 32 ....................................................................................... 61
R v S(R.J), [1995] 1 SCR 451 at 517 ....................................................................................... 61
R v Silk [1973] Qd. R. 298 ....................................................................................................... 72
R v Stinchcombe, [1991] 3 SCR 326 at 333 ............................................................................. 61
R v Tessier (1997) .................................................................................................................... 59
R v Trochym, 2007 SCC 6 at para 172 ..................................................................................... 59
R v Usereau, 2010 QCCA 894 at paras 96–97, 256 CCC (3d) 499 ......................................... 64
R v Waite [1892] 2 Q.B. 600.................................................................................................... 99
R v Williams [1893] 1 Q.B. 320 ............................................................................................... 99
R v. Adekanmi ......................................................................................................................... 30
R v. Adelodun .......................................................................................................................... 33
R v. Bangaza ......................................................................................................................... 101
xiv

R v. Beckford ........................................................................................................................... 11
R v. Cain.................................................................................................................................. 57
R v. Duffy ................................................................................................................................ 12
R v. Dunbar and Logan (1982) ............................................................................................... 62
R v. Ford (1993), 78 CCC (3d) 481 at pp. 504-5 (BCCA) ..................................................... 62
R v. Green ............................................................................................................................... 32
R v. Harrington ....................................................................................................................... 31
R v. Hibbert ............................................................................................................................. 59
R v. Krull ................................................................................................................................. 38
R v. Letourneau (1994) ........................................................................................................... 62
R v. Mahoney, supra, at p. 387 ............................................................................................... 62
R v. Mbombela ........................................................................................................................ 39
R v. Omoni ............................................................................................................................ 112
R v. Onyemaizu ......................................................................................................................... 8
R v. Owarey ....................................................................................................................... 77, 79
R v. Podola ............................................................................................................................ 111
R v. Sophonow ......................................................................................................................... 62
R v. Tabigen .......................................................................................................................... 113
R v. Tenganyika ...................................................................................................................... 50
R v. Thibani............................................................................................................................. 41
R v. Tudor................................................................................................................................ 59
R v. Witter ............................................................................................................................... 67
R v. Wright .............................................................................................................................. 63
R. PERKINS & R. BOYCE, supra note 8, at 938 ................................................................. 103
R. v Herlihy [1956] St. R. Qd. 18 ............................................................................................ 79
xv

Radhe v. Emp .......................................................................................................................... 10
Re A (Conjoined Twins: Surgical Separation) [2001] Fam. 147 ............................................. 16
re Andrew M., 91 Misc. 2d 813, 814, 398 N.Y.S.2d 824, 825 (1977) .................................. 103
re Cindy E., 83 Cal. App. 3d 393, 147 Cal. Rptr. 812 (1978) ............................................... 108
re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979) ............................... 106, 108, 109
re Gladys R., 1 Cal. 3d at 867, 464 P.2d at 136, 83 Cal. Rptr. 815 (1970)............................ 104
re Harold M., 78 Cal. App. 3d 380, 144 Cal. Rptr. 744 (1978) ............................................. 109
re Michael B., 44 Cal. App. 3d 443, 118 Cal. Rptr. 685 (1975) .................................... 108, 109
re Patrick W., 84 Cal. App. 3d 520, 148 Cal. Rptr. 735 (1978)............................................. 108
re Roderick P., 7 Cal. 3d 801, 500 P.2d 1, 103 Cal. Rptr. 425 (1972) .................................. 108
re Tanya L., 76 Cal. App. 3d 725, 143 Cal. Rptr. 31 (1977) ................................................. 108
re Tony C., 71 Cal. App. 3d 303, 139 Cal. Rptr. 429 (1977) ................................................ 108
Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979) ..................................................... 105
Redman v. State, 580 S.W.2d 945 (Ala. 1979) ..................................................................... 107
Riddels...................................................................................................................................... 92
Ruma v. Daura N.A ................................................................................................................. 30
S v Ahmed 1959 (3) SA 776 (W) ............................................................................................ 93
S v Arnold ................................................................................................................................ 45
S v Arnold 1985(3) SA 256 (C). .............................................................................................. 44
S v Bazzard 1992 (1) SACR 302 (NC) .................................................................................... 91
S v Campher ....................................................................................................................... 43, 89
S v Gesualdo 1997 (2) SACR 68 (W)...................................................................................... 89
S v Goliath 1972 (3) SA 1 (A) ................................................................................................. 93
S v Hartvani 1980 (3) SA 613 (T) ........................................................................................... 92
S v Krull ................................................................................................................................... 38
xvi

S v Laubscher ..................................................................................................................... 44, 50
S v Maki 1994 2 SACR 414 (EC) ............................................................................................ 85
S v Mbele 1991 (1) SA 307 (W) .............................................................................................. 91
S v Mkize 1959 (2) SA 260 (N) ............................................................................................... 93
S v Mokonto ............................................................................................................................. 42
S v Ncube 1978 (1) SA 1178 (R) ............................................................................................. 93
S v Pienaar 1990 (2) SACR 18 (T) .......................................................................................... 89
S v Pieterson 1994 2 SACR 434 (C)........................................................................................ 85
S v Potgieter 1994(1) SACR 61 ........................................................................................ 45, 47
S v Wiid 1990 (1) SACR 560 (A) ............................................................................................ 89
S v. Chretien...................................................................................................................... 44, 83
S v. D ....................................................................................................................................... 86
S v. Di Blasi ............................................................................................................................ 47
S v. Dlodlo .............................................................................................................................. 42
S v. Hutchinson ....................................................................................................................... 87
S v. Kensley ............................................................................................................................. 89
S v. Lange................................................................................................................................ 87
S v. Lubbe................................................................................................................................ 41
S v. Mangondo ........................................................................................................................ 41
S v. Moses ............................................................................................................................... 48
S v. Mphungatje ...................................................................................................................... 87
S v. Ngema .............................................................................................................................. 39
S v. Nursingh........................................................................................................................... 46
S v. Oliphant ........................................................................................................................... 91
S v. Van AS ............................................................................................................................. 39
xvii

S v. VanVuuren ....................................................................................................................... 44
Samuel Akaideme v State (1984) 4 S.C. 25 ........................................................................... 115
See also Malungu v R. [1959] E.A. 797 .................................................................................. 81
See R v Taylor, 2012 NLCA 33 ............................................................................................... 61
See State v. Skeen, 137 W. Va. 806, 74 S.E.2d 413 (1953) ................................................. 105
Senn v. State, 53 Ala. App. 297, 299 So. 2d 343 (1974) ...................................................... 105
Sodeman v R (1936) 2 All E.R. 1138..................................................................................... 116
State v. Agbo ........................................................................................................................... 12
State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970) ............................................................. 102
State v. Emmunu ....................................................................................................................... 9
State v. Jamison, 23 Wash. App. 454, 597 P.2d 424 (1979) ................................................ 102
State v. Moradehun ............................................................................................................... 117
State v. Nwaoga ...................................................................................................................... 73
Sullivan [1984] AC 156, 170 to 171 ...................................................................................... 119
Thomas v R. [1960] 102 C.L.R. 584 (High Court of Australia) .............................................. 81
Tony Ejinmani v State (1991) 7 S.C.N.J. 318 ........................................................................ 115
Tunji v. State ........................................................................................................................... 53
Uwa v State [1965] 1 All A.L.R. 356 .................................................................................... 101
Vézeau v The Queen, [1977] 2 SCR 277.................................................................................. 61
Weber v. Santam Versekeringsmaatskappy Bpk ..................................................................... 44
Windle [1952] 2 QB 826 ................................................................................................ 120, 124
Windle [1952] 2 QB 826, 833 to 834 ..................................................................................... 120
Woolmington v DPP [1935] AC 462 ..................................................................................... 125
Yip Chiu-Chang ....................................................................................................................... 74
Yusuf v. State ......................................................................................................................... 114
xviii

TABLE OF STATUTES
ENGLISH HOMICIDE ACT OF 1957
ENGLISH DRAFT CRIMINAL LAW BILL 1993
ENGLISH FIREARMS ACT 1968
ENGLISH DRAFT CRIMINAL CODE BILL 1989
NIGERIAN CRIMINAL CODE
NIGERIAN PENAL CODE
SOUTH AFRICAN TRANSKEIAN PENAL CODE
SOUTH AFRICAN CRIMINAL PROCEDURE ACT
1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
NIGERIAN ROAD TRAFFIC ACT
SOUTH AFRICAN CRIMINAL LAW AMENDMENT ACT 1 OF 1988
NIGERIAN CHILDREN AND YOUNG PERSONS ACT 1946
NIGERIAN CRIMINAL PROCEDURE ACT
CANADIAN CRIMINAL LUNATICS ACT 1800
CANADIAN MURDER (ABOLITION OF DEATH PENALTY) ACT 1965
xix

CHAPTER ONE
GENERAL INTRODUCTION
1.1 BACKGROUND TO THE STUDY
In the field of criminal law, there are a variety of conditions that will negate elements of a
crime (particularly the intent element), known as defences. The label may be apt in
jurisdictions where the accused may be assigned a burden before a tribunal. However, in
many jurisdictions including Nigeria, the entire burden to prove a crime is on the prosecution,
which must also prove the absence of these defences, where implicated. In other words, in
many jurisdictions the absence of these so-called defences is treated as an element of the
crime. These defences may provide partial or total refuge from punishment.
A defendant may commit the actus reus of an offence with the requisite mens rea and yet
escape liability because he has a “general defence” to criminal liability. For example, he may
have intentionally killed his victim but acting in self-defence because the victim had been
trying to kill him. In such a case, assuming the requirements of self-defence are made out, he
escapes all liability.
The term “general defence” is used to convey that such defences are available to all crimes.
There are some defences that are not “general” but specific to particular offences: for
example, provocation is a defence only to murder, reducing liability to manslaughter. Such
specific defences are dealt with later in relation to their particular offences.
1.2 STATEMENT OF THE PROBLEM
It is important to note that the problem that led to this research is the lacunas that can be
found in the defences to criminal liability in Nigeria. This work aims to examine some

defences to criminal liability in Nigeria and also identify the lacunas embedded in such
defences.
1.3 RESEARCH QUESTIONS
The research questions are to determine primarily whether the general defences to criminal
liability in Nigeria exist without lacunas and whether these lacunas can be regularized.
1. What are the obvious lacunas that can be found in the general defences to criminal
liability in Nigeria?
2. What are the measures that can be taken to regularize these challenges?
1.4 RESEARCH OBJECTIVES
The aim of this study is to examine and analyse the various defences to criminal liability in
Nigeria with a view to;
1. Analyse the meaning, nature and scope of defences to criminal liability in Nigeria.
2. To compare and contrast the operation of each Nigerian defence to criminal liability
analysed with the operation of such defence in another jurisdiction.
3. To identify the lacunas, if any, present in the Nigerian defences to criminal liability
analysed.
4. To proffer a workable solution so as to help to reform the lacunas that may be found.
1.5 RESEARCH METHODOLOGY
The research method used in carrying out this project is the doctrinal research method. It
specifically covers the examination of various texts including international instruments,
case laws, official documents, publications and other relevant texts. This method is
adopted because it enhances the purpose of the research towards a realistic and confined
finding and conclusion. The legal documents used in the conduct of this research are both

primary and secondary documents. The primary documents are the Constitution of the
Federal Republic of Nigeria Constitution, the Nigerian Criminal Code, the Nigerian Penal
Code, the Nigerian Criminal Procedure Act, the Nigerian Children and Young Persons
Act, etc. The secondary documents include relevant textbooks, journals and publications
that cover the area of study. These resources are adopted in the examination of the
research in juxtaposition with the laws and opinions already existing.
1.6 SIGNIFICANCE OF THE STUDY
The legislators in enacting the defences to criminal liability did their possible best in enacting
these defences to exist without any lacuna but this is not the situation as some of these
defences have some lacunas in them. It is a pressing need in the society to identify these
lacunas and reform them. This work seeks to identify some of these lacunas that are
embedded in some of the defences to criminal liability and also make practical
recommendations that may help in reforming the lacunas found in these laws.
1.7 SCOPE AND LIMITATION
This work will examine and analyse a comparative study of the defences of insanity,
immaturity, intoxication, provocation, self-defence, judicial and superior orders in the
execution of the law, and alibi in Nigeria with their operation in some foreign jurisdictions;
England, America, South Africa, Canada and New Zealand.

CHAPTER 2
SELF-DEFENCE, PROVOCATI1OON, AND ALIBI
2.1 SELF DEFENCE
2.1.1 SELF DEFENCE IN NIGERIA
The right to use force in defence of oneself or another against unjustifiable attack has existed
from time immemorial. The rule as to the right of self-defence or right of private defence has
been stated by Russell on Crime thus:1
“…a man is justified in resisting by force anyone who manifestly intends and endeavours by
violence or surprise to commit a known felony against his person, habitation or property. In
these cases, he is not obliged to retreat, and may not merely resist the attack where he stands
but may indeed pursue his adversary until the danger is ended and if in a conflict between
them he happens to kill his attacker such killing is justifiable.”
Self-defence has not been given a statutory definition in Nigeria, but has to be understood in
the common law context of which there are two aspects.
First, a man may in defence of liberty, person or property use such force as is necessary to
obtain its objects and which does not cause injury that is disproportionate to the injury sought
to be prevented.
Second, a man may use so much force as is necessary in repelling an unlawful attack on his
person or liberty, but may not cause grievous bodily harm or death except in defence of life
or limb or permanent liberty2.
1
Russell W.O (1958) Russell on Crime Stevens & Son Ltd 11th Edition, Vol. 1 at page 491
2
Ofori – Amankwah, E.H.(1986) Criminal Law in the Northern States of Nigeria at page 252

There are circumstances, recognized by law, under which a person will not be held criminally
liable for acts done omitted in order to resist actual or unlawful violence being threatened to
him or another person in his presence. This is otherwise known as self-defence. The relevant
laws on this type of defence are section 32(3), section 286-290 of the Criminal Code and
section 62 of the Penal Code. This defence is similar to that of compulsion but differs in that,
given a combined reading of the above statutory provisions it extends to serious offences like
murder or causing grievous harm. It is also not the requirement of the law, under this defence,
that the threat must be to the person threatened and not to any other person, like his son or
wife or even his neighbour. The expounding of this rule is important in that if it is examined
only within the narrow context of section 32(3) of the Criminal Code, it might be difficult to
resist the interpretation according to which its scope will be limited by the provision to
section 32, which, as earlier stated, has been interpreted to apply to all the subsections listed
thereunder. Such interpretation will have the effect of excluding act or omission that would
constitute an offence punishable with death, or an offence of which grievous to the person of
another, or an intention to cause such harm, is an element, from the doctrine of self-defence;
which will be an error. In fact, it is specifically stated under section 287 of the Criminal Code
that in appropriate cases force in self-defence can be used, even where such force may cause
death or grievous harm.
2.1.2 INGREDIENTS FOR A SUCCESSFUL PLEA OF SELF DEFENCE
One of the important limitations placed on the exercise of the right of self-defence is the
requirement that a person who is unlawfully assaulted use only such force as is reasonably
necessary to make effectual defence against the assault. This is clearly laid down in section
286 of the Nigerian Criminal Code.3 The first paragraph of the section provides that:
3
Section 271, Queensland Criminal Code

“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him
to use such force to the assailant and is reasonably necessary to make effectual defence
against the assault, provided that the force used is not intended and is not such a is likely to
cause death or grievous bodily harm.”
What harm or force is reasonably necessary is invariably a question of fact. In a case of brutal
assault where a person’s life is in danger, such force may extend to the causing of death of
the assailant. The second paragraph of section 286 of the Nigerian Criminal Code provides:
“If the nature of the assault is such as to cause reasonable apprehension of death or grievous
harm and the person using force by way of defence believes on reasonable grounds that he
cannot otherwise preserve the person defended from death or grievous harm, it is lawful for
him to use any such force to the assailant as is necessary for defence, even though such force
may cause death or grievous harm.”
In Akpan v. State4, Adio (Justice, Supreme Court as he then was) in interpreting section 286
of the Nigerian Criminal Code held as follows:
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him
to use such force on the assailant as is reasonably necessary to make effectual defence against
the assault. The force which may be used in such circumstances must not be intended, and
should not be such as is likely to cause death or grievous harm. If the nature of the assault is
such as to cause reasonable apprehension of death or grievous harm, and the person using
force by way of defence believes on reasonable grounds that he cannot otherwise preserve the
person defended from death or grievous harm, it is lawful for him to use any such force to the
assailant as is necessary for defence even though such force may cause death or grievous
harm.
4
(1994) 9 N.W.L.R (part 368) at P. 347

The above dictum was cited with approval by the Court of Appeal in Karimu v. State5, where
the court ruled that before the defence of self-defence can avail an accused three fundamental
principles must be established:
a) the defence can only be invoked against a person who is an assailant or an aggressor;
b) the person attacked or assaulted or threatened with violence by the assailant must be in
actual fear or belief of reasonable apprehension of death or grievous harm;
c) the force used to repel the attack by the assailant must be proportionate to the force used in
the attack.
Under section 60 of the Penal Code, it is provided that subject to restrictions contained in the
code, every person has a right to defend his own body, and the body of another person against
any offence affecting the human body. One of the restrictions is that “the right of private
defence in no case extends to the infliction of more harm than is necessary to inflict for the
purpose of defence”6. Also, under Section 65 of the Nigerian Penal Code7, private defence
may, in certain circumstances, extend to killing where the act being repelled is one of the
following categories:
(a) an attack which causes reasonable apprehension of death or causing grievous hurt; or
(b) rape or assault with intent to gratify unnatural lust, or
(c) abduction or kidnapping.
Under the Penal Code of Nigeria, express provisions are made which give an accused person
a right to kill in self-defence where the act repelled is either rape, assault with intent to gratify
unnatural lust, abduction or kidnapping. In construing the Nigerian Penal Code provisions on
5
(1996) 7 N.W.L.R (Part 462) at P. 579
6
Section 62, of the Penal Code
7
Section 100 of the Indian Penal Code

the right of private defence, the Supreme Court in Kwagshir v. State8held that four cardinal
conditions must exist before the taking of the life of a person is justified on the plea of self-
defence. These are:
a) The accused must be free from fault in bringing about the encounter;
b) There must be present an impending peril to life or of great bodily harm real or so apparent
as to create honest belief of an existing necessity;
c) There must be no safe or reasonable mode of escape by retreat; and
d) There must have been a necessity for taking life.
In order for conduct to be justified, the accused must only have adopted such force as is
necessary to avert the attack. “Such force as is necessary” involves a consideration of the
following issues:
a. The Necessity for any Defence Action
It is quite clear that the person seeking to rely upon the defence must believe his action to be
necessary. If the aggressor is seeking to disguise his status behind a smoke-screen of self-
defence, the defence will not apply to him. What is the position if the response is not in fact
necessary, but the defendant genuinely believes he is about to be attacked? Under the
Nigerian Criminal Code, the test of reasonableness of belief is objective. In R v. Onyemaizu9,
it was held that the defence is not open to an abnormally nervous or excitable person who, on
being assailed by a comparatively minor assault, or an assault of any nature which falls short
of that which is described in section 286 of the Criminal Code, unreasonably believes that he
is in danger of death or grievous harm. Under the Nigerian Penal Code, the test is subjective.
It was held in Kwagshir v. State10that one of the cardinal conditions of the plea of self-
defence laid down by the court is that there must be present an impending peril, to life or of
8
(1995) 3 N.W.L.R (Part 386) at P. 651
9
Supra
10
Supra

great bodily harm, either real or so apparent as to create honest belief of an existing necessity.
The subjective approach in determining the necessity of the accused person’s action is to be
preferred because if a court were to rely wholly on the belief of a “reasonable man” to the
exclusion of the accused person’s mistaken and honest belief of the facts, a lot of
questionable decisions would be arrived at where the person who ought not to be found guilty
of murder will be convicted.
b. The Amount of Responsive Force that may be used.
It has long been accepted that the accused may only use such force as is reasonable in the
circumstances. The general rule is that response must be proportionate to the attack. Section
298 of the Nigerian Criminal Code which codifies the concept of excessive force is somewhat
vague. The section provides:
“Any person authorised by law to use force is criminally responsible for any excess,
according to the nature and quality of the act which constitutes the excess”
The section does not say what the accused’s liability will be if, by making an error of
judgment, he uses force in excess of what could be reasonably necessary for his defence. The
Courts have not made particular reference to section 298 of the Criminal Code, but it is clear
that they have followed the English common law rule that an excessive use of force would
defeat a plea of self-defence. In State v. Emmunu11, the accused shot and killed the deceased
whose action, by putting his hand in his pocket frightened him, the court rejected the plea of
self-defence on the ground that the accused’s action was unwarranted in the circumstances.
The approach adopted under the Nigerian Penal Code is quite different. Under the Penal
Code, killing occasioned by the use of excessive force in private defence is manslaughter
only, not murder. Section 222 (2) of the Penal Code12 provides:
11
(1968) NWLR at page 15.
12
Corresponding to Section 300 of the Indian Penal Code

“…culpable homicide is not punishable with death if the offender in the exercise (in good
faith) of the right of private defence exceeds the powers given to him and causes death…”
When it is established that the right of private defence exists, the court usually applies what
has been described as the “golden scale” principle to question whether or not excessive force
was used. In Radhe v. Emp13, five persons found cattle trespassing on their land and as they
were legally entitled to do, rounded them up. There and then they were attacked by Z on
whom they successfully inflicted wounds. Their conviction for causing hurt was quashed on
appeal when it was pointed out that Z had been a “very obstinate fellow”, and probably that
every blow dealt to Z was necessary to stop Z. The view was further expressed that once it
was found that their right of defence exists, it is very difficult to expect an accused person to
weigh with a golden scale the maximum force necessary to keep within the right. It is
submitted that the Penal Code of Nigeria approach to the problem of excessive force used in
self-defence should be followed by the Criminal Code of Nigeria for where a person truly
acts in self-defence, it is difficult to see how he can regulate the force used in such defence.
c. The Duty to Retreat
It can be argued that if it is possible to escape from the attack by retreating, then it is
unnecessary and unreasonable to use defensive force. As the bulk of our law is the English
Common law, the concept of retreat has found its way into Nigeria but apparently restricted
to cases of provoked assaults only. Section 287 of the Criminal Code provides in part as
follows:
“When a person has unlawfully assaulted another or has provoked an assault from another,
and that other assaults him with such violence as to cause reasonable apprehension of death
of grievous harm, and to induce him to believe, on reasonable grounds, that it is necessary for
his preservation from death or grievous harm to use force in self-defence, he is not criminally
13
(AIR) (1923) AH 357
10

responsible for using any such force as is reasonably necessary for such preservation,
although such force may cause death or grievous harm.
This protection does not extend to a case in which the person using force, which causes death
or grievous harm, first began the assault with intent to kill or to do grievous harm to some
person; nor to a case in which the person using force which causes death or grievous harm
endeavoured to kill or to do grievous harm to some person before the necessity of so
preserving himself arose, nor in either case, unless, before such necessity arose, the person
using such force declined further conflict, and quitted it or retreated from it as far as was
practicable.”
The English common law used to adopt a strict approach that a “retreat to the wall” was
required before extreme force could be justified. Under the Nigerian Penal Code, there is no
requirement for retreat.
d. The Imminence of the Attack
It has been stated that restricting rights of self-defence to pure defensive retaliation could
effectively condemn some innocent persons to death or other injury. In certain limited
circumstances, the law must permit the right to strike first. Lord Griffiths said in R v.
Beckford that:
“A man about to be attacked does not have to wait for his assailant to strike the first blow or
fire the first shot, circumstances may justify a pre-emptive strike”14.
The problem however is in defining the parameters of such a right. Allowing too much
anticipatory defensive action could become a charter for vigilantism.
Under section 63 of the Nigerian Penal Code, there is no right of private defence where the
assaulted can have recourse to the protection of public authorities. Whether or not a victim of
an unprovoked assault has a reasonable time to have recourse to public authorities as required
14
(1988) IAC 130 at page 144
11

by this section is a question of fact. It must be observed that this section of the Penal Code is
more likely to be complied with in the breach as the public authorities are in no position to
guarantee the safety of the citizenry of this country.
Another limitation placed on the exercise of the right of private defence is the exclusion of
the right in cases where a person suffers what could have been ordinarily an assault but
considered lawful if done by some public servants in the exercise of their lawful duties 15.
Even though the Criminal Code does not contain this limitation, it is submitted that the same
principle would apply.
2.1.3 DEFENCE OF OTHERS
Under the common law of England, the courts have equated the defence of others with the
prevention of crimes.
In R v. Duffy16, it was held that a woman would be justified in using reasonable force when it
was necessary to do so in defence of her sister, not because they were sisters, but because
“there is a general liberty as between strangers to prevent a felony”. The principles applicable
are the same whether the defence is based on the grounds of self-defence or on the grounds of
prevention of crime. The degree of force permissible should not differ for example, in the
case of a master defending his servant from the case of a brother defending his sister or,
indeed, that of a complete stranger coming to the defence of another under unlawful attack.
Under Section 288 of the Nigerian Criminal Code, whenever it is lawful for any person to use
force in any degree for the purpose of defending himself against an assault, it is lawful for
any other person acting in good faith in his aid to use a like degree of force for the purpose of
defending such first-mentioned person. In State v. Agbo17, the court held that this defence
availed the accused, who having observed the deceased inflict a fatal machete cut on one of
15
See Section 64 of the Nigerian Penal Code.
16
(1966) 1 All ER, P. 62
17
(1963) 3 E.C.S.L.R at P. 4
12

the accused person’s son’s and cut the other on the knee with the machete, snatched the
machete from the deceased and killed him.
Under Section 60 (a) of the Nigerian Penal Code, every person has a right to defend his own
body, and the body of any other person against any offence affecting the human body.
2.1.4 SELF-DEFENCE IN ENGLAND
Almost as long as the criminal law has been in existence it has consistently restricted the right
of the individual to self-help; it is the function of the law to preserve law and order and
protect the weak. There are, however, inevitable occasions when to depend on the arrival of
official help would be to court disaster and it would be extremely unjust if the remedy of self-
help were altogether denied. The law recognises this and in certain situations deems the use
of force to be lawful.
2.1.5 INGREDIENTS OF A SUCCESSFUL PLEA OF SELF DEFENCE
It is common to state that in “defensive force justifications, an aggressor must present a threat
of unjustified harm to the protected interest”.18
Two points need consideration here:
a. Threat of unjustified harm:
In the paradigmatic self-defence scenario, an innocent person is attacked by an unjustified
aggressor and this triggers the right to self-defence action. From this, it is clear that self-
defence is not a defence against justified action, for example, against a police officer using
reasonable force to make a lawful arrest. One is entitled to defend oneself against a small
18
Robinson, “Criminal Law Defences: A Systematic analysis” (1982) 82Col.L.R.216. Alternatively, it may be
characterised as when the reasons for acting (defensively) outweigh or defeat the normal reasons that exist
against the wrongful conduct.
13

child firing a gun or an insane person wielding an axe. Such a person, while non-culpable, is
still threatening unjustified harm.
b. Protected interest:
The “protected interests” currently recognised by the law are protection of self, protection of
others, and property.19 Overlapping these interests to a considerable extent is the further
protected interest of acting in the prevention of a crime.20
It seems only just that an innocent person who is attacked ought to be able to defend him or
herself and should be able to go to the aid of immediate family. But what if friends or
strangers are in need of help; should someone be blamed or protected if he chooses to step in?
Some authorities, including Devlin v. Armstrong suggest that there must be some special
nexus between the person relying on the doctrine to justify what he did in aid of another, and
that other.21 However, it is clear that no such limitation exists and it makes no difference
whether one is defending oneself or a complete stranger.22 This has important implications
for pub and street brawls. A fight between two people can soon escalate with persons joining
in claiming that they are acting in defence of others. One may also use physical force to
protect one’s property.23 One of the real dilemmas here is in defining how much defensive
physical force one may use to protect one’s property.
19
Accordingly, this defence is sometime termed “necessary defence”, rather than “self-defence”.
20
The overlap is not complete, e.g. if one defends oneself against an infant’s attack there is no crime.
21
[1972] N.I. 13 at 35-36. The relationship between Bernadette Devlin M.P., and her Londonderry constituents
was held not to be sufficient relationship.
22
Williams (Gladstone) (1984) 78 Cr.App.R.276; Tooley (1709) 11 Mod at250, 88 E.R. at 1020; Prince (1875) 2
C.C.R. at 178; People v. Keatley[1954] I.R. 12.
23
Hussy (1924) 18 Cr.App.R.160. See further, Smith, Justification and excuse in the Criminal Law (1989), pp.
109-112.
14

2.1.6 THE PERMITTED RESPONSE
The law recognises the right to protect both personal and proprietary interests.24 One can use
violence to repel an attack. It is clear, however, that there are severe restrictions as to the
circumstances in which one is justified in using such force. One does not have carte blanche
to defend oneself entirely as one chooses. The law will simply not accept that it is justifiable
to kill a human being in order to protect a much-loved pet guinea-pig. In order for conduct to
be justified the defender must only use such force as is necessary to avert the attack.
In many of the leading self-defence cases, the aggressor has been killed. The importance that
is attached to the sanctity of life (and the corresponding need for any exception to it to be
closely circumscribed) is enshrined in Article 2 of the European Convention on Human rights
which states that:
(1) Everyone’s right to life shall be protected by law. No-one shall be deprived of his life
intentionally save the execution of the sentence of a court following his conviction of a crime
for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this article when
it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or prevent the escape of a person lawfully detained.”25
24
It is clear that if self-defence arises on the facts it should be put to the jury even though the defence has not
been raised by the defendant (D.P.P. v Bailey[1995] 1 Cr.App.R.257). The judge should also explain that the
prosecution has to prove beyond reasonable doubt that the defendant was not acting in self-defence (Anderson
[1995] Crim.L.R.430).
25
The final exception is: (c) in action lawfully taken for the purpose of quelling a riot or insurrection. Clearly,
all three exceptions may be relevant when considering the defence of prevention of crime.
15

There are a number of preliminary points that need to be made in relation to Article 2. First, it
deals only with the use of fatal force. Thus, where less defensive force is used Article 2 is of
no relevance. In interests of clarity and consistency it could be argued that the legal test for
self-defence ought to be the same regardless of the level of force used so as to avoid a dual
standard being applied. The use of non-lethal force is covered by Article 3 (freedom from
inhuman treatment) and Article 5 (right to liberty and security of the person). It has been
argued that these provisions will be interpreted so as to imply exceptions of the same type as
those in Article 2(2).26 While the attractions of having a single set of rules applying to all
situations of self-defence are obvious, there could, nevertheless, be a case for employing a
different (more rigorous) test in relation to fatal force given the sanctity of life.
Secondly, Article 2 refers to the “intentional” taking of life only. It has been argued that this
means that the action must be taken with the “purpose” of killing and “that a person acting in
order to defend themselves or others is not acting for the purpose of killing”.27 However, this
view has been challenged and while the point has not been considered by the English courts
since the coming into force of the Human Rights Act 1998, it does seem unlikely that such a
restrictive interpretation would be compatible with the decisions of the European Court.28
Thirdly, it has been argued that Article 2 will be confined to cases involving agents of the
state.
26
Ashworth, Principles of Criminal Law (3rd ed., 1999), p. 140. Leverick, “Is English Self-Defence Law
Incompatible with Article 2 of the ECHR” [2002] Crim.L.R.347 at 360 cites cases suggesting that this has
already occurred.
27
Smith, “The Use of Force in Public or Private Defence and Article 2” [2002] Crim.L.R.956 at 957 citing ReA
(Conjoined Twins: Surgical Separation) [2001] Fam. 147 as the authority.
28
See Lecerick, ante, n.40 and “The Use of Force in Public or Private Defence and Article 2: A Reply to
Professor Sir John Smith” [2002] Crim.L.R.961.
16

However, the system of English law has been found wanting in relation to protecting children
against excessive physical punishment29 and one cannot confidently predict, therefore, that
the law of self-defence between citizens will be safe from challenge.30
Finally, Article 2 only permits a killing to protect oneself or others against “unlawful
violence”. English domestic law allows one to act in protection of property. If Article 2 is
extended to cases involving non-lethal force (killing in defence of property would not be
protected under current English law), would Article 2 cover cases where force is used in
protection of property? If not, there is again the prospect of a dual standard emerging: one set
of rules for cases falling within the scope of the Convention and another set of rules for the
remaining cases.
Accordingly, there is considerable uncertainty about the extent to which Article 2 will impact
upon English law of self-defence. However, the emphasis placed upon the sanctity of life in
Article 2 and the need for force used in the exceptions to be “absolutely necessary” must
raise, the possibility that current English law is incompatible with Article 2 in some respects.
What is meant by the current requirement of English law that the defender must only use such
force as is necessary to avert the attack? This involves a consideration of the following
issues:
a. the necessity for any defensive action;
b. the amount of responsive force that may be used;
c. the duty to retreat;
d. the imminence of the threatened attack;
29
A v. United Kingdom (1999) 28 E.H.R.R. 603.
30
See Leverick, above, n.40 at 358-359 and Ashworth, above, n.40 at p. 149.
17

It is important to emphasize that with each of these one is ultimately balancing the competing
interests of the initial aggressor and the defender, but, as the aggressor was the culpable one
responsible for starting the violence, the law has tended to tip the scales in favour of the
defender.
a. The necessity for any defensive action
It is quite clear that the person seeking to rely upon the defence must believe his action to be
necessary; if he is, in reality, the aggressor seeking to disguise his status behind a smoke-
screen of self-defence, the defence will not apply to him.31
What is the position if the response is not in fact necessary, but the defendant genuinely
believes it is (because, say, he mistakenly believes he is about to be attacked)? It used to be
thought that such a defendant would only escape liability if his mistake was a reasonable
one.32 In Williams (Gladstone)33 however, it was held by the Court of Appeal that the
defendant’s mistake need not be reasonable. Instead, he had to be judged according to his
view of the facts.34 In Oatridge the Court of Appeal concluded that the defendant, who had
been abused by her partner on previous occasions, was entitled to have her mistaken view of
the incident, which led to her fatally stabbing him, considered by the jury; “the possibility of
the appellant honestly believing that on this occasion the victim really was going to do what
he had previously threatened even if this was not in fact what he was going to do was not so
31
The defence will not succeed if the defendant uses force which, unknown to him, is justified by the
circumstances: Dadson (1850) 4 Cox C.C. 358. See Hogan, “The Dadson Principle” [1989] Crim.L.R.679 and
Christopher, “Unknown Justification and the Logical Necessity of the Dadson Principle in Self-Defence” [1995]
15 O.J.L.S. 229.
32
e.g. Rose (1884) 15 Cox 540 where the defendant shot and killed is father whom he mistakenly thought was
killing his mother by cutting her throat; Albert v Lavin [1982] A.C. 546.
33
(1984) 78 Cr.App.R.276.
34
This was confirmed in Beckford [1998] 1 A.C. 546.
18

fanciful as to require its exclusion.”35 The Draft Criminal Law Bill 1993 also adopts this test.
The amount of force the defendant may use depends on the circumstances “as he believes
them to be”.36
Self-defence is regarded as a justificatory defence. This, however, can only be the case where
the defendant is actually acting in self-defence. Where he has made a mistake and is,
therefore, attacking the interests of an innocent party, his actions cannot be justified as not
involving any wrongdoing. But in these cases the law has decided that such a mistake negates
blameworthiness and excuses the defendant from blame.37 The approach of excusing all
honest mistakes even if unreasonable is highly questionable.
Suppose two police officers see a man in a car. They think he is a dangerous, wanted
criminal. They stop the car to arrest the man. Genuinely believing him to be a violent
criminal who could shoot them to effect an escape, they beat him nearly to death with their
guns. It transpires that the victim is a completely innocent man. According to Williams
(Gladstone) the actions of the police officers must be judged according to their view of the
facts. On that basis, assuming their response was not excessive, they will escape all liability.38
They thought force was necessary; that is all that is required. Now, if their mistake was a
reasonable one –if the facts were such that all reasonable police officers would similarly have
thought that the man in the car was the wanted criminal and that it was necessary to use force
against him –sympathy would be with the police officers’ actions and wish to exempt them
from blame and criminal liability (leaving aside, for the moment, the issue of whether their
35
[1992] Crim.L.R.205 at 206.
36
Law Commission, Offences Against the Person and General Principles, Law Com. No. 218 (1993), cl. 27(1).
37
See further, Uniacke, where she offers a more complex analysis of justification and excuse, based in part on a
distinction between objective and agent-perspective viewpoints.
38
This is broadly what occurred in Finch and Jardine (Unreported, Central Criminal Court, October 12-19,
1982). See also Waddington, “‘Overkill’ or ‘Minimum Force’” [1990] Crim.L.R.695.
19

response might have been excessive). But if their mistake was an unreasonable one –if there
were no reasonable grounds for thinking the man was the wanted criminal or that he would
attack them –then, surely, the response is entirely different. The enormity of their error is
appalling. The police officers are blamed for making such an unreasonable mistake –and are
blamed them to an extent that they should be made criminally liable for their actions. In other
words, the former requirement that the defendant’s mistake had to be based on reasonable
grounds not only mitigated the practical difficulty of proving whether the defendant actually
held the belief or not, but also reflected a more fundamental attitude towards the
determination of culpability.
It is in this context that Article 2 may come into play. There have been a number of decisions
in which the European Court of Human Rights has held that in determining whether the
killing was “absolutely necessary” the honest beliefs of the defenders must be based on “good
reason”.39 This is a higher and more restrictive test than that in Williams (Gladstone) and
reflects the status accorded to the sanctity of life by the Convention. English law, by this
yardstick, accords too little priority to the protection of life and the ruling in Williams
(Gladstone) is misconceived and may be incompatible with Article 2 does not necessarily
mean that the old reasonableness test should simply be resurrected. If the assessment of
reasonableness is based upon typical male responses to violence, then charge is necessary.
What is needed is a test that is capable of taking into account the characteristics of the
defender, including, for example, prior history. The question ought to be whether it was
reasonable for that person to have used such force in the situation. This will be considered
further in the context of the issue. In the meantime, as a result of Williams (Gladstone), it is
39
McCann v. United Kingdom (1996) 21 E.H.R.R. 97; Andronicou v. Cyprus (1998) 25 E.H.R.R. 491; Gul v.
Turkey (2002) 34 E.H.R.R. 28.
20

difficult to distinguish between those who, when every consideration has been taken of the
anguish of the situation, are still blameworthy and those who should be excused.
b. The amount of responsive force that may be used
It has long been accepted that the defender may only use such force as is reasonable in the
circumstances. The general rule is that the response must be proportionate to the attack.
A person acting to repel an unlawful attack is, at the same time as trying to protect himself or
others, usually also acting to prevent a crime. This latter situation has been put on by a
statutory basis.
It could be argued that section 3 applied to all cases of necessary defence. A person acting in
self-defence is usually engaged in preventing a crime, even if that is not his primary
motivation in acting. However, the general view is that the common law rules of defensive
force have not been effectively put on a statutory footing by virtue of section 3. 40 Not only
are the express terms of section 3 restricted to prevention of crime but also, the overlap
between the two is incomplete. Edmund-Davis L.J. in McInnes41endorsed this view when he
stated that the law of self-defence was “similarly limited as in section 3”. In other words,
whilst operating along similar lines42 it is still perfectly proper to regard as authoritative
common-law decisions on necessary force.43
What is meant by “reasonable” and “proportionate” force here? This has always posed
problems –especially in relation to the use of physical force in the defence of property. It
40
See Ashworth, “Self-Defence and the Right to Life” [1975] C.L.J.282; Harlow, “Self-Defence, Public Right
or Private Priviedge” [1974] Crim.L.R.528.
41
(1971) 55 Cr.App.R.551.
42
In Clegg[1995] 1 A.C. 482 it was indicated that the degree of force permissible was the same in both
situations.
43
Under the Draft Criminal Law Bill 1993 the use of force to prevent crime or in protection of oneself, others or
property would be dealt with by the one clause: clause 27(1), (Law Com. No. 218, 1993).
21

would seem clear, for instance, that despite a common belief to the contrary, one is not at
liberty to shoot dead a burglar wandering around one’s house if one does not fear for one’s
own life. In Martin44 the defendant was convicted of murder having shot a teenage burglar
who broke into his isolated Norfolk farmhouse. This case attracted considerable publicity,
much of it sympathetic to the defendant.45 The difficulty is that for many persons such a
degree of force is the only method by which they can protect their property. If they are not
permitted to use such force, they are in effect condemned to forfeiting their property and
having to rely on subsequent legal remedies for redress –remedies that will often be useless.
However, the alternative is even worse. One cannot allow persons to go around inflicting
death or several personal injuries on others merely in defence of property and it seems plain
that this is the view upheld by Article 2. Fatal force may be used if “absolutely necessary”,
but only in response to “unlawful violence”.
English law used to insist on a fairly rigorous and objective test of reasonableness, such an
approach can be supported when one recalls that necessary defence amounts to a
justification:
“Characterizing self-defence as justification involves finding that the attacker’s life has
become of less value to society than the life of the person attacked. To reach this difficult
conclusion, the law must make the self-defence elements strict enough to ensure that the
attacker was really the more culpable party and that there was really no reasonable alternative
to killing him.”46
44
[2001] 2 W.L.R. 1.
45
Yeo, “Killing in Defence of Property” (2002) N.L.J. 730 cites a poll indicating that fewer than 4 percent of
people were in favour of Martin’s conviction and sentence.
46
Creach, “Partially Determined Imperfect Self-Defence: The Battered Wife Kills and Tells Why” (1982) 34
Stan.L.R. 616, 632.
22

However, more recent English cases have tended to favour the interests of the defender more
heavily.
c. The duty to retreat
It can be argued that if it is possible to escape from the attack by retreating then it is
unnecessary and unreasonable to use defensive force.
English law used to adopt a strict approach that a “retreat to the wall” was required before
extreme force could be justified.47 Since then, however, there has been considerable
amelioration of the rule. In Julien the law was stated thus:
“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…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
necessary as a feature of the justification of self-defence, it is true, in our opinion, whether
the charge is a homicide charge or something less serious.”48
In McInnes49 this was accepted as an accurate statement of the law but Edmund-Davies L.J.
added that a failure to retreat is only one of the factors to be taken into account in determining
the reasonableness of the defendant’s conduct. This approach was confirmed in the case of
Bird50 and is adopted by the Draft Criminal Law Bill 1993, clause 28(8):
47
Subject to certain exceptions: a person was not under a duty to retreat if he were in his own home or if it
would leave his family or friends in danger.
48
(1969) 53 Cr.App.R.407 at 411.
49
(1971) 55 Cr.App.R.551.
50
[1985] 1 W.L.R. 816.
23

“The fact that a person had an opportunity to retreat before using force shall be taken into
account, in conjunction with other relevant evidence, in determining whether the use of force
was reasonable.”51
Although merely one of the factors to be taken into account, this may militate against a
woman who fails to leave a repeatedly violent partner being able to plead self-defence.
d. The imminence of the threatened attack
In Western films the two protagonists tend to stand at opposite ends of a dusty street, each
with his fingers hovering near his holster ready to draw and fire. In such films (apart from the
occasional good one) the “baddie’ will draw first; the “goodie” will then follow suit; he will
inevitably be the quicker on the draw and the “baddie” will be killed. The film will then end
with the “goodie” looking brave and honourable. The “baddie” drew first. The “goodie” was
thus fully justified in acting in self-defence. However, had the “goodie” been the one to draw
first, all would have changed. A plea of anticipatory self-defence would be meaningless in a
Hollywood Western. By reaching for his gun first he would have become the aggressor.
Life, however, is not lived on a Hollywood film-set and the criminal law has to reflect life as
it is and mirror everyday values. Restricting rights of self-defence to purely defensive
retaliation could effectively condemn some innocent persons to death or other injury. The
problem may be particularly acute where a substantial difference in size and strength exists,
as well as may be the case when a woman is attacked by a man. In certain limited
circumstances the law must permit the right to strike first. As Lord Griffiths said in Beckford:
“A man about to be attacked does not have to wait for his assailant to strike the first blow or
fire the first shot; circumstances may justify a pre-emptive strike.”52
51
Law Com. No. 218
24

The problem however, is in defining the parameters of such a right. Allowing too much
anticipatory defensive action could become a charter for vigilantism.
In Giorgiades53 the defendant was charged with possession of a fire arm with intent to
endanger life contrary to section16 of the Firearms Act 1968. Police visited his flat. He came
on to the balcony with a loaded shotgun and raised it to waist level before being arrested. He
believed he was in danger of being attacked and had not realised his visitors were police
officers. On appeal it was held that self-defence should have been put to the jury.
Accordingly, his conviction was set aside and a conviction for possessing a shortened firearm
without a licence contrary to sections 1 and 4 of the Firearms Act 1968 was substituted.
Thus under the current law the requirement of imminence is enshrined. Research into battered
women who kill reveals that it is the element that causes most difficulty. In Ewing’s study of
100 cases of battered women who killed, he found certain features to be common: years of
violence, inadequate help from the community and the police, an inability to leave the
situation and a killing that anticipated further violence or followed it, but did not fit the
requirement of imminence.54 A number of cases have involved women who have waited until
their husbands were asleep before killing them.55 As the law is currently framed this removes
all possibility of pleading self-defence even though it may have seemed the only way out.
Other cases have concerned women who have gone to the kitchen to fetch a knife with which
to respond to an attack.56 Again this may remove the possibility of pleading self-defence and,
moreover, may be deemed to be such “cooling down” time as to remove the possibility of
52
[1988] 1 A.C. 130 at 144.
53
[1989] 1 W.L.R 759.
54
Ewing, Battered Woman Who Kill: Psychological Self-defence and Legal Justification (1987).
55
Ahluwalia (1993) 96 Cr.App.R.133
56
Thornton (1993) 96 Cr.App.R.112.
25

pleading provocation.57 The only defence available in such circumstances may be diminished
responsibility. Clearly, there will be cases where that is appropriate; the condition of the
woman after years of abuse may have deteriorated to such an extent that should not be held
fully responsible for her actions. But it is not at all appropriate that the male orthodoxy of
fighting blows with blows should dictate the defences available.
As the law currently stands one is entitled to use defensive force of anticipation of an attack
but the amount of force permissible is tested the degree of imminence of the attack. Also, it
seems that the time-scale within which pre-emptive defensive action may be taken will be
stretched when, as in the above cases, no actual violence has been used. For example, while
the defendant in Attorney-General’s Reference (No. 2 of 1983) was justified in making and
possession of bombs, he would not have been justified in using them until his shop was
actually under attack. But as Glanville Williams has pointed out: “there is a distinction
between the immediacy of the necessity for acting and the immediacy of the threatened
violence. The use of force may be immediately necessary to prevent an attack in the future.”58
Moreover, as has been stated before, in determining the necessity for acting at all, one does
not have to jettison the requirement of reasonableness (as Williams (Gladstone) has done) in
order to do justice to the differing sizes and strengths of an attacker and defender.
The criminal law revision Committee recommended the retention of the imminence rule: “it
is desirable to make it clear that a man is not allowed to take the law into his hands by
striking before self-defence becomes necessary.”59 This view was reflected in the Draft
Criminal Code Bill 1989.60 However, the latest Law Commission Report has concluded that
57
Below, pp. 689-691.
58
Textbook of Criminal Law (2nd ed., 1983), p. 503.
59
14th Report, Offences Against the Person (Cmnd.7844, 1980), para. 286.
60
Clause 44, Law Com. No. 177 (1989).
26

the jury will be able to decide whether the use of pre-emptive force was reasonable without
any specific reference to a requirement of imminence.”61 Accordingly, there is no reference
to it in the Draft Bill. This approach has much to commend it and should, at least, raise the
possibility of self-defence being available to battered women to kill.
e. Excessive self-defence
A successful plea of self-defence justifies the defendant’s conduct and he or she goes free.
Accordingly, despite an increasing flexibility in the interpretation of the rules, it nevertheless
is a rigorous test to overcome. Many defendants who act in self-defence, such as the one in
Martin, use excessive force with the result that the defence fails. Other defendants, such as
the battered woman in Ahluwalia, who kill their violent partner while he is asleep, being
fearful of violence when he awakes and knowing from past experience that their strength is
inadequate to match his, will similarly fail to come within the test. Because of the excessive
or premature nature of their defensive actions it is right that their conduct should not be
regarded as justified. But, in terms of assessing their moral culpability, such persons are not
on a par with those who cold-bloodedly kill or injure others. Their reasons for acting are
understandable. It is only the execution of those actions that is unacceptable. In short, there is
a strong case for excusing, or partially excusing, such actions. Where the injuries inflicted are
short of death, the fact that they were acting in self-defence can be taken into account as a
mitigating factor in sentencing. But where they kill, the only verdict is murder with a
mandatory sentence of life imprisonment.
In an effort to circumvent such injustice, courts have increasingly allowed such persons to
avail themselves of the partial defences to murder. For example, battered women who kill are
being afforded defences of diminished responsibility and provocation which result in
61
Law Com. No. 218
27

manslaughter verdicts. The defendant in Martin was, on appeal, also allowed a defence of
diminished responsibility. But, apart from the fact that these defences do not cover all cases,
this whole approach misses the point in fair labelling terms. If a person’s reasons for acting
are self-defensive and they are not acting because of an abnormality of mind or provocation,
what is needed is a defence –or partial defence –that accurately explains why they are not
guilty of murder. Such thinking has led to increasing calls for the introduction of a new
partial defence to murder termed “excessive self-defence”, which would result in a
manslaughter verdict.62
Such a defence exists in many other jurisdictions, for example, the Australian courts used to
adopt an approach that a person who killed using excessive force was not guilty of murder,
but only of manslaughter.63 He was partially excused: “the moral culpability of a person who
kills another in defending himself but who fails in a plea of self-defence only because the
force which he believed to be necessary exceeded that which was reasonably necessary falls
short of moral culpability ordinarily associated with murder.”64 This approach recognized
excessive self-defence as a partial excuse. However, the Australian courts have now
abandoned this “half-way house”65 and the House of Lords has confirmed that such an
approach is not part of English Law.
62
See for example, Lacey, “Partial defences to Homicide: Questions of power and principle in Imperfect and
Less Imperfect Worlds” in Ashworth and Mitchell (eds), Rethinking English Homicide Law (2000), p. 124, 129.
63
Mckay [1957] V.R. 560; Howe [1958] 100 C.L.R. 448. There has been some support for such an approach in
this country (Report of the Select Committee on Murder and Life Imprisonment, H.L. Paper 78-1, 1989, para.
89).
64
Viro (1976-78) 141 C.L.R. 88 at 139, per Mason J.
65
Zecevic (1987) 71 A.L.R. 641. See Lanham, “Death of a Qualified Defence?” (1988) 104 L.Q.R. 239.
28

2.2 PROVOCATION
2.2.1 DEFENCE OF PROVOCATION IN NIGERIA
This is an act or series of acts done by one person to another which can cause in a reasonable
person and actually in another a sudden and temporary loss of self-control rendering him so
subject to passion as to make him for the moment not master of his mind66. The Black’s Law
Dictionary defines it as “the act of inciting another to do something, especially to commit a
crime”. It is further defined as this Dictionary as “something (such as words or action) that
affects a person’s reason and self-control, especially causing the person to commit a crime”.
Under section 283 of the Nigerian Criminal Code, the term “provocation” is defined as:
“Including any wrongful act or insult of such a nature as to be likely, when done to an
ordinary person, or in the presence of an ordinary person to another person who is under his
under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal,
relation or in a relation of master or servant, 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”.
It is further provided in section 284 of the Criminal Code that:
“A person is not criminally responsible for an assault, committed upon a person who gives
him provocation for the assault, if he is in fact deprived by the provocation of the power of
self-control, and acts upon it on the sudden and before there is time for his passion to cool;
provided that the forced used is not disproportionate to the provocation, and is not intended,
and is not such as is likely to cause death or grievous harm”67.
66
R v Duffy (1949) 1 All E.R. 932.
67
Other relevant statutory laws on this subject are sections 317 & 318 of the Criminal Code and section 38 of
the Penal Code.
29

2.2.2 INGREDIENTS FOR A SUCCESSFUL PLEA OF PROVOCATION
For the defence of provocation to succeed, the following are the essential ingredients:
a) There must have been a wrongful act or series of wrongful acts done to the
offender or to his spouse or child or relative or master/servant:
The first point to note here is that there must be a wrongful act which constitutes provocation.
The act must also have been done or offered to the person subject to provocation. Thus in R
v. Adekanmi68, the court held that it amounted to provocation for a man to see another man on
top of his wife on his matrimonial bed. Similarly, calling a Muslim a dog has been held in
Ruma v. Daura N.A69 to be provocative. If the act is done to another person who is not in any
way related to the accused, then the plea of provocation will fail. For example, if a man sees
another man on top of his friend’s wife and he strikes the man with a rod from which he dies
he will be guilty of murder. A different legal consequence will arise if the wrongful act is
offered to a man’s spouse, child or a close relative. Thus, in R v. Harrington70, a man saw his
son-in-law beating his daughter. He rushed up to the deceased and struck him a blow, which
lead to his death. The court held that the act (beating the accused person’s daughter in his
presence) was provocative.
The act constituting provocation need not be overt. It could be an insult made by gestures.
Thus, in Bedder v. D.P.P.71, the accused person invited a prostitute to his room for a sexual
intercourse. Unfortunately, he could not perform after several attempts. The prostitute jeered,
68
(1994) 17 N.L.R. 99.
69
(1960) 5 F.S.C. 93. See also Kumo v State(1967) F.N.L.R. 55.
70
(1886) 10 Cox 370.
71
(1954) 2 All E.R.801.
30

causing him to lose self-control. He stabbed her twice and she died. On a charge of murder,
Bedder’s plea was sustained by the House of Lords72.
b) The act must be such that could cause a reasonable man to lose his self-control:
The rule is that for a wrongful act to constitute provocation it must be so grave or gross as to
cause a reasonable man to lose his self-control. The test that is usually applied is that of a
reasonable man. The question then is who is a reasonable man, for the purpose of this rule? In
the Adekanmi’s case, a reasonable man was defined as “a reasonable man in the accused
person’s station in life and standard of civilization”. The court in this case held thus: “the
effect it would be expected to have on a reasonable man must be taken to mean the effect it
would to have on a reasonable man of the accused person’s standing in life for it would, I
think, be improper to examine the question in the light of what would be sufficient
provocation in the case of an educated and civilized person. The accused, be it noted, is an
illiterate and primitive peasant of this country, and it must be beyond doubt that the passions
of such a type are far more readily aroused than those of a civilized and enlightened class”.
In D.P.P. v. Camplin, the House of Lords took the view that in applying the reasonable man’s
test the jury could take into account everything, including the physical peculiarities of the
accused, such as his, colour, sex, physical and mental disabilities. In this case, a 15-year-old
boy had been convicted of the murder of a man, who buggered him against his will and then
laughed at him. The defence counsel urged on the trial court the need to consider not the
reaction of a reasonable adult but that of a reasonable boy of the accused person’s age. The
plea was rejected but upon appeal to the Court of Appeal (Criminal Division), the view that
the test to be applied should be that of a reasonable man and not a reasonable boy of the
accused person’s age was rejected.
72
It should be noted, however, that their Lordships have held in a more recent case of D.P.P. v Camplin (1978)
2 W.L.R.697; (1978) 2 All E.R.168, that Bedder v. D.P.P. should no longer be followed.
31

c) The circumstances leading to loss of self-control must be sudden:
For a plea of provocation to succeed, the person making the plea must satisfy the court that
the wrongful act was done suddenly and in the heat of passion, with practically no time for
passion to cool. Assuming A catches his wife and B, her boyfriend, having sexual intercourse
on his matrimonial bed and walks away downcast only to return two hours for a fight with B.
Upon his return, he sees B driving out of his compound and he opens fire on B, killing him in
the process. The question now is, in a charge for the murder of B, can A suddenly raise the
defence of provocation? The answer is no. This is because the wrongful act (killing of B) was
not done suddenly. The law will presume that within the two hours A made the discovery, his
anger or passion should have cooled down. In R v. Green73, the accused found his wife and
another man having sexual intercourse in his mother-in-law’s house at about 9 p.m. he
returned to his own house, sad and downcast. Later, at about 1 a.m., he took a machete and
ran back to his mother-in-law’s house. He met his wife and her concubine chatting in a dark
room. He struck twice on the bed and killed his wife. He also killed his mother-in-law who
ran into the room to see what was happening. He was charged with murder but pleaded
provocation. The court rejected his plea, holding that between the provocation and the killing,
enough time had elapsed for his passion to cool. However, where the provocative act is
continuous, passion will not be held to have cooled down74.
d) The retaliatory act must pass the proportional test:
It is the law that for the wrongful act to constitute provocation, it must pass the proportional
test. In other words, the retaliatory act must not be of such gravity that no reasonable man
could have done it given the mild nature of the provocation offered. This is better explained
73
(1955) 15 W.A.C.A 73.
74
See R v Duff , supra. See also Maheme Ali v R (1957) W.A.L.R. 28.
32

by judicial decisions in the following cases. In Nomad v. Bornu Native Authority75, the
deceased and her husband were fighting over some clothes that the latter bought for her. The
deceased was about to leave her husband and wanted to go with the clothes. The deceased
pushed the accused down twice. He got hold of a stick and struck the deceased twice and she
died as a result of the injury she sustained. The accused person was charged with the murder
of the deceased and he pleaded provocation. The court held that the provocation was slight in
relation to the retaliatory act of the husband. In R v. Adelodun76, the accused had just lost a
local council election as a result of which he was being derided through abusive songs against
his family by a crowd of opponents. He got annoyed and killed one of the singers with a
machete. Upon being charged with murder, he pleaded provocation but the court rejected his
plea, holding that the injuries inflicted on the deceased were so severe and so many that the
mode of retaliation was out of proportion to the provocation offered by the deceased.
e) The wrongful act must have been offered in the presence of the offender:
For the doctrine of provocation to apply, the provocative act must be offered or done in the
presence of the person who is raising this plea. Thus, where a person acts only upon the
information he gathers from a third party and the acts which constitutes an offence was based
on this information, the plea of provocation will not avail him. In Bello v. State77, the accused
was told that the deceased abused his mother’s private parts. He got annoyed, took an arrow
and shot the deceased. At the trial, he pleaded provocation but the court held that this plea
must fail because the wrongful act which precipitated the killing was not offered in the
presence of the accused person. No doubt the decision of the court in this case would have
75
(1954) 21 N.L.R.31.
76
(1959) W.N.L.R.114.
77
(1961) 1 All N.L.R.361.
33

been different if the act was done in the presence of the accused and he struck immediately
thereafter.
f) The wrongful act must not have been induced by the offender.
g) The provocation must not have been given in obedience to the law i.e. it must be an
unlawful act.
h) The provocation must not have been offered in exercise of the right of private
defence.
2.2.3 OTHER REQUIREMENTS
Section 38 of the Penal Code spells out three requirements of the law which the court must
consider whenever a plea of provocation is raised. The section provides as follows:
“Such grave and sudden provocation as under any section of this Penal Code modifies the
nature of an offence or mitigates the penalty which may be inflicted shall not be deemed to
include:
i. Provocation sought or voluntarily provoked by the offender as an excuse for
committing an offence;
ii. Provocation given by anything done in obedience to the law or by a public servant
in the lawful exercise of the powers of such public servant; and
iii. Provocation given by anything done in the lawful exercise of the right of private
defence”.
Under (i) above, if A is found beating his wife in the public and B, in an attempt to rescue the
woman, pulls her out of the hold of A but A, excited by sudden and violent passions, strikes
B with a stick, killing him in the process, A is not protected by this doctrine because the
provocation allegedly given by B was induced by the act of A (the beating of his wife).
34

In respect to (ii) above, the following scenario will explain it better. A is a Director in the
Ministry where B works as a civil servant. Over an alleged act of insubordination, A issues a
query to B, requesting him to react to the query within 48 hours. Instead of answering the
query, B, provoked, strikes A five times and causes him grievous harm. B cannot succeed in a
plea of provocation because the provocation alleged was given by a public servant in the
performance of his duties.
Regarding (iii) above, this defence will not avail an offender for provocation given by
another person who is simply exercising his right of self-defence. Thus, if A pulls B by the
nose, B, in self-defence, lays hold of A. Provoked, A strikes B and causes him grievous harm.
A cannot be heard raising a plea of provocation.
2.2.4 NATURE OF PROVOCATION
The legal consequence of the plea of provocation in cases of assault differs from those of
homicide. In the former, when this plea avails an offender, the effect is that he is not
criminally responsible for his action. The court is therefore bound to discharge an acquit
him78. It is, thus, in this sense, and this sense alone, that the plea of provocation can be
regarded as a defence to criminal liability.
However, in homicide cases, provocation when successfully raised and established can only
mitigate the penalty prescribed for murder. Section 318 of the Criminal Code provides that:
“A person who unlawfully kills in circumstances which but for the provisions of this section,
would constitute murder … is guilty of manslaughter only”. In other words, whenever a plea
of provocation is successfully raised in a murder charge, the court is bound to refrain from
imposing death penalty on the accused, and if same has been imposed on the accused by a
78
See section 284 of the Criminal Code
35

lower court, the appellate court is bound to substitute it with manslaughter. It is trite that no
amount of provocation can justify a killing in law. This may explain why some scholars do
not even treat provocation as a defence to criminal liability, since, in ordinary meaning, a
defence is supposed to completely relieve an offender of criminal liability. This view is
however, true only in respect of homicide cases. In cases of assault not involving death or
grievous bodily harm, provocation remains a defence, properly, so called.
2.2.5 DEFENCE OF PROVOCATION IN SOUTH AFRICA
2.2.6 THE TEST FOR PROVOCATION
THE OBJECTIVE TEST
The material provisions of Section 141 of the Transkeian Penal Code are as follows:
“Homicide which would otherwise be murder may be reduced to culpable homicide if the
person who causes death does so in the heat of passion occasioned by sudden provocation.
Any wrongful act or insult of such a nature as to be sufficient to deprive any ordinary person
of the power of self-control may be provocation, if the offender acts upon it on the sudden,
and before there has been time for his passion to cool.
Whether any particular wrongful act or insult, whatever may be its nature, amounts to
provocation, and whether the person provoked was actually deprived of the power of self-
control by the provocation which he received, shall be questions of fact.”79
Section 141 of the Transkeian Penal Code requires the act or insult to be sufficient to deprive
“any ordinary person” of the power of self-control. This is an objective test where the
question is whether the reasonable man in the circumstances of the accused would have lost
self-control. The reasonable man “is the embodiment of all qualities demanded of the good
citizen, a device whereby to measure the [criminal's] conduct by reference to community

79
See R v Butelezisupra at 162
36

values”.80 The purpose of an objective test was to prevent people with “bad tempers” from
being allowed to give free rein to their emotions.81
Snyman82 referred to the above as one of two different approaches to the effect of
provocation. The first approach is seen as a “separate doctrine” which follows specific rules.
This means that the accused person who relies on provocation is subject to a “distinct set of
rules” whereby his liability is assessed and he is not assessed by the ordinary principles of
liability such as unlawfulness, criminal capacity and intention. This approach is termed the
“separate doctrine approach”. This approach found its way into South African law through
section 141 of the Transkeian Penal Code.83
In 1925 the Appellate Division held in R v. Butelezi84 that Section 141 of the Transkeian
Penal Code85 correctly expresses the common law on the subject of provocation. An
important point to note is that this approach does not include the general principles of
criminal liability for murder namely, unlawfulness, criminal capacity and intention. The
accused who murdered under provocation is only tested against the set of rules in the
provisions quoted from the Transkeian Penal Code above. Provocation could only be a
complete defence (where the accused can be acquitted) if one of the general principles of
criminal liability is not proven.86 Since there is no strict adherence to the general principles in
Section 141 of the Transkeian Penal Code, the provisions do not serve as a complete defence
to the accused.
In 1959 in R v. Krull87, the Appellate Division decided that provocation cannot reduce an
intentional killing to culpable homicide. Schreiner JA also held that upon a charge of murder
80
Hunt South African Criminal Law and Procedure common law crimes: 1970 vol II: 374.
81
Burchell and Milton 1997
82
Snyman 1995
83
Snyman 1995
84
1925 AD 160 at 16
85
Act No. 24 of 1886 (C).
86
Snyman: 1995 op cit 223.
87
1959 (3) SA 392 AD at 399.
37

where there is evidence of provocation, only one inquiry need be made, which is to ascertain
if the accused intended to kill. If the answer is yes, the consequence would be a conviction of
murder, possibly with extenuating circumstances. If the intention to kill was negatived by the
provocation, the conviction would at most be culpable homicide.88 His view was that:
“In the treatment of provocation arising from idiosyncrasies such as hot-headedness or
timidity ‘conformity to objective standards must, for practical reasons, be insisted on’.”89
The problem with using an objective test is that it requires everyone, whether he/she is of
different culture or background, to observe the same standard which would be what is “fairly
and reasonably expected of a white person of ordinary knowledge, experience and
capacities”.
“It has long been recognized that in a heterogeneous society the insistence on a purely
objective approach to testing liability for crimes of negligence may lead to instances of
injustice…in such a society, it is not possible to formulate a test of the reasonable man which
is appropriate to the divergent norms of the different cultural, social or ethnic groups making
up the society.”90
This problem was evident in the judgment in the early case of R v. Mbombela91 where X, an
African living in a rural, tribal community, killed Y because he believed that Y was the
thikoloshe, a creature from African beliefs. The killing of such a creature was in accordance
with his culture. However, the Appellate Division held that his actions were not reasonable
since the reasonable man did not believe in the existence of the thikoloshe. It is clear that the
court had applied a “notion of reasonableness derived from a different cultural milieu”. Louw
stated that the case of Mbombela:
88
Burchell and Hunt 1970
89
Burchell EM 'Provocation: Subjective or Objective' South African Law Journal 1964
27 at 29; S v Krullsupra 396.
90
Hunt: 1970 op cit 383
91
1933 AD 269.
38

“Starkly illustrates the potential unfairness of the use of an objective reasonable man test in a
heterogeneous society where the actor may be measured against an unattainable standard,
culturally otherwise.”92
Louw noted a move away from the “pure objective test” in the 1976 case of S v. Van AS93
where the court held that the “reasonable man was not to be viewed solely objectively” in that
the test must rather be “relative to a certain group of persons”.
More recently the case of S v. Ngema94 illustrates that the application of a “strictly objective
approach” in cases of culpable homicide should not be followed.95 Hugo J stated that:
“It is clear that the days of full-blown objectivism, as exampled by R v. Mbombela 1933 AD
269 at 272 are past, and some evidence of subjectivizing the test for negligence is apparent.
One must test negligence by the touchstone of the reasonable person of the same background
and educational level, culture, sex and dare I say it, race of the accused. The further
individual peculiarities of the accused alone must be disregarded.”96
THE SUBJECTIVE TEST
The subjective test is usually applied for a murder charge, where the question asked is
whether or not the accused had the intention to murder.97 To apply a subjective test for
negligence seems to suggest that the fault of the accused must be decided by the same test
that is applied in relation to murder. This is misleading because, as Hunt argues, the accused
is judged by his “personal ability to conform with the standards of the reasonable man…it is a
test of the extent to which X, as an individual, possesses the physical, intellectual and
92
Louw R 'The Reasonable Man and the Tikoloshe' South African Journal of Criminal
Justice 1993(6) 361 at 361
93
1976(2) SA 921 (A) in Louw op cit 361
94
1992(2) SACR 651 (0)
95
Hunt: 1970 op cit 384
96
R v Ngema supra 651 F-1.
97
Burchell and Milton 1997 op cit 465.
39

cognitive abilities which enable him to conduct himself in the manner of a reasonable man of
his race, class, gender etc.”98
The problems that may be experienced with a purely subjective test for negligence was
elaborated on by PMA Hunt in the following example:
“If a hot-tempered individual loses control of himself and (lacking intent to kill) causes death,
he cannot be convicted of culpable homicide, for if we are to judge him by his own
characteristics he has acted predictably and in accordance with the disposition which a
variety of background influences have shaped.”99
Botha JA demonstrated that:
“what the subjective test puts in issue is whether X was physically, mentally or culturally able
to meet the standard of the reasonable man. If, for reasons beyond his control, he is not, it is
manifestly unfair and unjust to inflict punishment upon him.100
Louw submitted with respect to a subjective test that:
“if further individual peculiarities of the accused alone must be disregarded, then the potential
for unfairness ... remains .... The accused’s conduct should be measured against what would
be reasonable for him to do in the circumstances in terms of his own capabilities…”101
This issue arose in 1963 in the case of S v. Mangondo102 where Williamson J.A suggested
that since criminal intention is now subjective, and since earlier cases applied a degree of
objectivity, it may be necessary to consider provocation afresh.103
In S v. Lubbe104 it was necessary for the court to consider whether the test is subjective or
objective where the accused's state of mind results from “normal personal
98
Hunt 1970 op cit 386.
99
Ibid.
100
Hunt 1970 op cit 387; JA Botha “Culpa -A Form of Mens rea or a Mode of Conduct” 1977:94 South African
Law journal 29 at 37.
101
Louw R op cit 364
102
95 1963(4) SA 160 AD.
103
Burchell EM South African Law Journal 196427 at 27-28.
104
1963(4) SA 459 (W).
40

idiosyncrasies”.105Jansen J drew attention to the approach in the earlier case of R v. Thibani
where the Judge of Appeal said that:
“... provocation seems to have assumed its proper place, not as a defence but as a special kind
of material from which, in association with the rest of the evidence, the decision must be
reached whether or not the Crown has proved the intent, as well as the act, beyond reasonable
doubt.”106
Jansen J regarded this dictum as indicating a “preference for the subjective test” and also said
that the phrase “excluding normal personal idiosyncrasies” from the Krull case did not revive
the objective test but meant that in a subjective consideration of intention to kill, evidence of
the accused's personal idiosyncrasies must not be taken into account.107
In 1966 in the case of S v. Dlodlo108, the Appellate Division approved the subjective test for
the intention to kill where the defence of provocation had been raised. Botha JA stated that
the onus was on the prosecution to prove beyond reasonable doubt that when the accused
caused the injury he “as a fact appreciated, subjectively, the possibility of death resulting
there from”. The learned Judge continued:
“The subjective state of mind of an accused person at the time of the infliction of a fatal
injury is not ordinarily capable of direct proof, and can normally only be inferred from all the
circumstances leading up to and surrounding the infliction of that injury.”109
It was submitted that “full weight” should be given to the dictum of Botha JA that the test in
provocation is subjective. The problem that remains, however, is that the learned judge did
not expressly reject the dicta of the courts in Krull and Lubbe.110
105
Burchell EM South African Law Journal 1964 27 at 28.
106
Supra at 731; see also Burchell and Milton Op cit 240; Burchell EM South African Law Journal 1964 27 at
28.
107
Burchell EM South African Law Journal 1964 27 at 28-29.
108
1966(2) SA 401 AD.
109
Dugard CJR “Provocation: No More Rides on the Sea Point Bus” South African Law Journal 1966261 at
264.
110
Ibid
41

Snyman111 referred to a second approach to the effect of provocation which is referred to as
the “general principles approach”. This is where one applies the “ordinary principles of
liability” of unlawfulness, criminal capacity, and intention to the facts of the situation. Two
important cases illustrated that the South African courts were rejecting the “separate doctrine
approach”112 in favour of the “general principles approach”. In 1971 the Appellate Division
held in the case of S v. Mokonto113 that the provisions of section 141 of the Transkeian Penal
Code “had to be confined to the territory for which it had been passed”.114 In terms of these
provisions an objective test had to be applied to assess whether the provocation had excluded
the accused's intention. However, the decision in this case made it clear that the test to
determine whether the provocation excluded an accused’s intention is subjective.115 This test
was referred to by Snyman in the above case as the following:
“The test is no longer how the ordinary or reasonable person would have reacted to the
provocation, but how the particular accused, given his personal characteristics, such as quick
temper, jealousy or a superstitious turn of mind, in fact reacted, and what his state of mind
was at the crucial time.”116
The rejection of the objective test in the Mokonto case illustrated that what is important is not
the “nature of the provocative act” as “its effect on X's mental abilities or state of mind”. This
means that one does not have to prove that the provocative act was unlawful. For example, it
would not matter how great the provocative act of the victim is, but rather how seriously it
affected the accused with respect to his state of mind at the time. In other words, the test is a
subjective one. Therefore the provocation may exclude the criminal capacity or intention
111
Snyman: op cit 222-223; see also Visser PJ and Mare Me General Principles of Criminal Law through the
Cases (1990) 389.
112
Snyman op cit 223; See also above
113
1971(2) SA 319 (A)
114
Mokonto supra 319, 326 in Snyman Strafreg –Vonnis Bundel: Criminal Law Casebook 1991 : 111
115
Ibid; See also Snyman Criminal Law 1995:,223-224
116
Snyman Criminal Law op cit 227.
42

even if the provocative act was lawful.117 The case of S v. Campher118 made it clear that
provocation could not only exclude the accused's intention, but also his criminal capacity.
The important consequence of this is that the accused may be acquitted because if he lacks
the criminal capacity, he cannot be convicted of culpable homicide or of assault.119
Louw stated that: “whatever future progressive modifications there may be, the objective test,
absolute or relative, will always lead to an unsatisfactory compromise because the accused
will always be judged against someone else's standards”120. However, Burchell and Hunt
noted that “there has been a gradual swing in favour of subjectivity and the only doubt is
whether or not faint traces of objectivity still exist.”121
2.2.7 NON-PATHOLOGICAL CRIMINAL INCAPACITY
The test for capacity is:
(a) the accused capacity to appreciate the wrongfulness of his or her conduct; and
(b) the capacity to act in accordance with this appreciation.122
The traditional defences for capacity are:123
1) Insanity - this is in terms of 878(1) of the Criminal Procedure Act of 1977;
2) Youth - the court in Weber v. Santam Versekeringsmaatskappy Bpk124 laid down the
criterion of capacity in the same general terms as 878(1) of the Criminal Procedure Act.
Also, as a result of the case of S v. Chretien125 in 1981, voluntary intoxication could serve as
a defence for capacity.126 More recently, a general test of non-pathological incapacity has
117
Ibid
118
1987(1) SA 940 (A)
119
Snyman: 1995 op cit 224; See also Burchell and Milton op cit 291
120
3 Louw op cit 364.
121
Burchell and Hunt 1970 op cit 245
122
123
124
1983(1) SA 381 (A) at 389.
125
1981(1) SA 1097 (A).
126
43

developed.127 The name of this defence was formulated in the case of S v. Laubscher128
where the judge wanted to separate this defence from mental illness under section 78(1) of
the Criminal Procedure Act.129 The definition of non-pathological incapacity is where the
accused’s lack of capacity is due to some cause other than disease. 130 The cause may be due
to “emotional stress”131, “total disintegration of the personality”132, or factors such as shock,
fear, anger or tension.133 The question as to whether provocation and severe emotional stress
could exclude the elements of liability was answered in the obiter dictum of Diemont AJA in
the 1983 case of S v. Van Vuuren:134
“In principle there is no reason for limiting the enquiry [into criminal capacity] to the case of
the man who is too drunk to know what he is doing. Other factors [such as provocation and
severe mental or emotional stress] which may contribute towards the conclusion that he failed
to realise what was happening or to appreciate the unlawfulness of his act must obviously be
taken into account in assessing his criminal liability.”135
This defence appears on the face of it to be problematic in that it seems easy for an accused to
allege that he had become “so enraged” or acted under “such emotional stress” that he was
not able to control his actions. Snyman submitted, however, that the courts treat defences
which can be raised easily with “great caution”.136 Snyman refers to the “uncritical
codification of the concept of capacity”. He submitted that:
“largely as a consequence of this [German] influence, our courts have developed the capacity
enquiry with resultantly controversial acquittals on murder charges. This has occurred via the
127
128
1988(1) SA 163 (A)
129
130
111son Readers Digest Great Illustrated Dictionary (1984) 1248.
131
S v Arnold1985(3) SA 256 (C).
132
S v Laubscher1988(1) SA 163 (A) 167 G-H
133
134
1983(1) SA 814 (0).
135
Burchell and Milton op cit 281 ; See also S v Bailey 1982(3) SA 772 (A) at 796 C' Snyman Criminal Law op
cit 224.
136
Snyman Criminal Law op cit 154; see also S v Potgieter 1994(1) SACR 61 (A)[115] In Burchell and Milton
op cit 284-285.
44

merger of the defence of provocation with the capacity enquiry. Thus provocation, which
might formally have resulted in at best a conviction of a lesser offence or have been taken
into account in the sentencing stage, may now result in the ‘uncontrollably’ angry literally
getting away with murder.”137
In the 1980s, the cases of S v. Arnold138and S v. Campher139 illustrated how provocation and
severe emotional stress were taken into account in assessing criminal liability. In S v. Arnold
a man was charged with the murder of his wife. The man had a son who suffered from a
hearing disability and his wife had become hostile toward his son. For this reason, he had to
place his son in a special home. On the day in question the accused had a gun with him for
business reasons and on encountering his wife, he claimed that he was unable to place the
gun in a secure area. He was upset because his wife was staying elsewhere and refused to tell
him where. She then bent forward “displaying her bare breasts” and referred to her wish to
become a stripper again. A shot was then fired and the accused claimed that he could not
remember aiming the gun and pulling the trigger.140
The court in this case was prepared to accept that loss of criminal capacity could be due to
other factors such as “extreme emotional distress”.141 Psychiatric evidence was lead to the
effect that:
“His conscious mind was so ‘flooded’ by emotions that it interfered with his capacity to
appreciate what was right or wrong and, because of his emotional state, he may have lost the
capacity to exercise control over his actions.”142
Criminal capacity on the part of the accused had not been proven and he was accordingly
acquitted. In S v. Campher143, the accused was found guilty but the majority also held that
137
Snyman CR op cit 1997: 307.
138
1985(3) SA 256 (C) .
139
1987(1) SA 940 (A)
140
Arnold supra 257-261 .
141
Arnold supra 264 at C-O; see also South African Law Journal 1985 240 at 242. 22
142
Arnold supra 263 at C-O; See also Burche!1 and Milton op cit 281-282 .
45

emotional stress could in principle lead to an absence of criminal capacity and therefore a
complete acquittal.144
Burchell and Milton submitted that the judgment of Squires J in the case of S v. Nursingh145
is an illustration of the problems that can arise by the “current judicial approach” to the
defence of non-pathological incapacity.146 The accused in this case had shot and killed his
mother, grandmother and grandfather. The court had to decide whether or not he satisfied the
two criteria under the test for capacity.
The defence submitted that the accused:
“had a personality makeup which predisposed him to a violent emotional reaction…[if
certain] circumstances occurred to trigger off this disruption of his mind, it would become so
clouded by an emotional storm that seized him that he would not have the mental ability to
distinguish between right and wrong and act in accordance with that insight.”147
The psychiatrist described that due to the circumstances of the accused as well as his history
of sexual abuse by his mother, this “triggered off a state of ‘altered consciousness’ which
deprived him of awareness of normality”.148 Squires J noted the need to “scrutinize defences
of non-pathological incapacity carefully” and the accused was acquitted on all three counts
because there was a reasonable doubt as to whether he had the required capacity at the time
of the killings.149
It is difficult to accept that a person, although under extreme emotional stress, can kill his
mother and both of his grandparents. It is therefore important that the courts “scrutinize” the
defence of non-pathological incapacity carefully. This was introduced in the earlier case of
Potgieter, where the judge of appeal observed that the “facts must therefore be closely
143
Supra.
144
Burchell and Milton op cit 283.
145
1995(2) SACR 331 (0).
146
147
Nursinghsupra 332; See also Burchell and Milton op cit 285
148
Nursingh supra at 333 C-D in Burchell and, Milton op cit 285.
149
Nursingh supra at 336 H-J in Burchell and Milton op cit 286.
46

examined to determine where the truth lies”.150 The court found in this case that the factual
scenario could not be “reasonably possibly true” and so the defence of non-pathological
incapacity could not succeed.151 However, even Burchell and Milton question whether
Nursingh was under any more stress than Potgieter.152
The law regarding non-pathological incapacity was summarised by Vivier JA in S v. Di
Blasi153as follows:
“It is for the accused person to lay a factual foundation for his defence that non-pathological
causes resulted in diminished criminal responsibility, and the issue is one for the Court to
decide. In coming to a decision the court must have regard not only to the expert evidence but
to all the facts of the case, including the nature of the accused person’s actions during the
relevant period…This court emphasises the need to subject the evidence given by the accused
person in support of a defence of non-pathological incapacity to careful scrutiny.”154
In 1996 the important case of S v. Moses155 emerged, which illustrates further problems in
applying the defence of non-pathological incapacity. In this case the accused and deceased
were homosexual lovers. After the first time that the accused had penetrative intercourse with
the deceased, the deceased revealed that he had AIDS. No protection was used during
intercourse and the accused became extremely angry and hit the deceased twice with an
ornament on the head. He then stabbed him in the side with a small knife and brought a larger
knife from the kitchen with which he cut the deceased's throat and wrists. The accused
testified that he was so angry that he could not stop himself.156 The accused had a history of
150
S v Potgieter 1994(1) SACR 61 at 74 in Burchell and Milton op cit 284.
151
152
153
1996(1) SACR 1 (A) in Burchell and Milton op cit 287
154
At 7c-f in Burchell and Milton op cit 287-288
155
1996(1) SACR 701.
156
Moses supra at 704-705.
47

poor control and anger, was susceptible to anger outbursts and violence, came from a
dysfunctional family and had been sexually abused by his father.157
The court acquitted the accused on the basis that the state failed to prove beyond reasonable
doubt that the accused had the required criminal capacity at the time of the killing. 158 The
court seemed to rely on the accused’s unstable personality combined with the final
provocation of the deceased telling him that he had AIDS.159
De Vos examined:
1) whether the defence ought to have been successful given the fact that the accused flew into
a terrible rage, which was attributed to his dysfunctional personality and not to a long-term
progressive build-up of emotional stress in the accused; and
2) the correctness of the judgment in acquitting the accused, whose criminal capacity had
been diminished by extreme provocation.”160
De Vos referred to the distinction between the “conative” and “affective” aspects of criminal
incapacity as was illustrated in the Report of the Rumpff Commission:
“The conative leg of the test consists in a person’s ability to control his or her behaviour in
accordance with his or her insights, which means that a person is able to make a
decision…resist impulses or desires to act contrary to what his or her insight into right and
wrong reveals to the person.
…the affective function of the mind does not automatically have any influence on criminal
capacity of the perpetrator. The latter refers to most intense emotions of hatred, fury and
jealousy.”161
157
Moses supra at 701 e-f.
158
Moses supra at 714 I.
159
De Vos P “Criminal capacity, Provocation and HIV” South African Journal of Criminal Justice 1996(9) 354
at 356.
160
De Vos op cit 354.
161
Report of the Commission into the Responsibility of Mentally Deranged Persons (RP 78/1976) in De Vos op
cit 357.
48

He concluded that the affective function of the mind may be impaired by provocation but this
is not sufficient to make a finding of a lack of criminal capacity. He went on to state that the
issue is whether the accused could control his actions or not and that the court failed to make
a distinction between uncontrollable actions and actions which are controllable.162 He then
referred to the Rumpff Commission where it was stated:
“When a man kills his friend in a fit of rage, his behaviour does not spring from any blind,
impulsive drive or uncontrollable emotion. He is performing a goal directed act. In his
(momentary) rage he has not controlled himself, but his action was by no means
uncontrollable, as in cases of automatism.”163
The Moses case can clearly be distinguished from the Nursingh case. In Nursingh the act of
killing his mother and grandparent was “preceded by a very long period in which his level of
emotional stress increased progressively”.164 The main reason why an objective test was
initially used to determine criminal liability under provocation was to prevent individuals
with “bad tempers” from being allowed to give “free rein to their emotions”.165 De Vas stated
that if the Moses decision is accepted, then there is a danger that the non-pathological
criminal incapacity defence could be abused by persons who are “quick-tempered”.166
Another important point raised by De Vos is that the court erred in its finding of an acquittal
on the basis that the “control of the accused was not significantly impaired”167 or because of
his “diminished criminal incapacity”.168 In other words, Moses was acquitted because his
control over his actions was significantly impaired and not because it was completely
absent.169 Provocation or emotional stress may constitute a factor which “diminishes the
162
De Vos op cit 358
163
Report para 926 in De Vos op cit 358
164
De Vos op cit 358; See also Arnold, Campher and Wiid.
165
166
De Vos op cit 358.
167
Moses supra 701 g-h.
168
De Vos op cit 359.
169
Ibid.
49

accused’s responsibility and leads to a reduction in sentence or punishment”. 170 Therefore,
Moses should have been convicted and the “significant impairment of his control” should
have been used to reduce his sentence.171
The problem can only be solved if the courts make it a point to note that they must be
“satisfied that the conduct of the accused was indeed brought about by a genuine breakdown
of the conative capacity and not mere anger”.172
2.2.8 A COMBINATION OF THE SUBJECTIVE AND OBJECTIVE TESTS
An early approach which involved both the objective and subjective tests was adopted by the
Federal Supreme Court in R v. Tenganyika173, where the charge is one of murder and there is
evidence of provocation, it was held that two separate inquiries must be made.
The first inquiry is whether intention to kill was present. In making this inquiry, account must
be taken of all the facts - provocation, intoxication and any other eccentricity or abnormality
the accused may have had. Since the test for intention is subjective, at this stage provocation
will be considered subjectively. If the court is left in doubt as to whether the intention to kill
was present, the accused could at most be convicted of culpable homicide. If the court is
satisfied that the intent to kill was proved, the Federal Supreme Court took the view that a
second inquiry must be made, namely whether the provocation which the accused received
was sufficient to warrant a verdict of culpable homicide despite the fact that the killing was
intentional.174
On this point Tredgold CJ held the test to be objective, whether the accused was so provoked
that in the circumstances, a reasonable man would have lost his self-control.175
170
Burchell and Milton op cit 295; See also S v Laubschersupra and S v Oi Blasi supra in Burchell and Milton
at fn 111 .
171
See De Vos op cit 359.
172
De Vos op cit 360.
173
1958(3) SA 7 Fe.
174
R v Tenganyika supra 11G-H.
175
Burchell and Hunt 1970: 245; R v Tenganyika supra 11 H; See also Burchell South Afncan Law Journal 1958
246-248.
50

It is submitted that this approach is an appropriate one in that it can eliminate the problems
evident when the test is only objective or only subjective. Here the personal characteristics of
the accused are considered so that he is not forced to conform to an unattainable standard,
and also the reasonable man test is used to prevent persons with merely quick tempers to
escape liability.
2.3 ALIBI
2.3.1 THE DEFENCE OF ALIBI IN NIGERIA
Anyogu while attempting a definition of alibi took a foray into the work of Saunders where
Alibi was defined as, “a Latin adverb meaning elsewhere or at another place and if evidence
for an accused that he was not present at a place at the time an offence was committed is
accepted by a jury, he is said to have established an alibi”176.
The Black’s Law Dictionary defined alibi as “a defence based on the physical impossibility
of a defendant’s guilt by placing the defendant in a location other than the scene of crime at
the relevant time”177. So far it is obvious that almost all definitions on alibi start from the
standpoint of the defendant.
According to the Supreme Court in Eke v. State178 alibi means that he was not at the scene of
crime. Alibi means elsewhere’. It presupposes that by fluke of nature, the defendant has no
possibility of committing the offence attributed to him as he cannot be at two places at the
same time.
It is obvious that the defence of alibi entails being elsewhere other than at the scene of crime
but one pertinent question to ask is really can this defence once raised exculpate the accused
176
1 Z.C Anyogu, Evidential Perspectives on the Defence of Alibi in Nigeria, (Enugu, Okechukwu Publishers,
2006) p1, where the Learned Author referred to J.B. Saunders, Words and Phrases Legally Defined (2nd ed)
Butterworths, 1969). He also referred to the dictum of Montague J.A in R v Foll (1957) 21 WWR 481 @ 491.
177
B.A Garner (Ed), Black’s Law Dictionary, (8th Ed)(Minnesota, Thompson West Publishers 2004) pg79
178
2011 LPELR-1133(SC)
51

person? Is it still possible for a defendant not to be at the scene of crime and yet be guilty of
an offence? This is one of the dilemmas of the defence of alibi.
2.3.2 INGREDIENTS FOR THE DEFENCE OF ALIBI
The defence of alibi is one not bugged down by lists of ingredients. Indeed in Mohammed v.
State179, Rhodes Vivour JSC stated that the defence of Alibi means that of the time the crime
was committed the accused person was not at the scene of the crime, and so it is impossible
for him to be guilty of the crime. The onus of establishing alibi is on the accused person since
it is a matter within his personal knowledge. The defence of alibi would succeed if at the
earliest opportunity after his arrest he gives to the police sufficient particulars of where he
was at the time the crime was committed, and Police investigation of his alibi turns out to be
true. The defence of alibi would crumble like a pack of cards where there is stronger evidence
against it. An analysis of the above assertion therefore is that a defendant who wants to take
full benefit of the defence of alibi ought to raise the defence in a timely manner. In Tunji v.
State180 per Owoade JCA, the Court of Appeal stated that “a defence of alibi must be
unequivocal and must be raised early during investigation of the allegation against the
accused person and not during the trial. This will enable the prosecution investigate the truth
of alibi, and call evidence, if necessary in rebuttal” In Mustapha v. State181, Awala JCA
opined that “an accused by raising the defence of alibi is saying that he was somewhere else
at the time the crime was committed, and as to where he was at the material time, was a
matter specially within his knowledge, the accused ought to raise the defence at the earliest
possible opportunity. In his defence, he ought to give such details and particulars of his
whereabouts so that the police can investigate”. In Natasha v. State182 per Belgore JCA, the
court summarized the position thus, “the general principle is that the accused must present his
179
(2015) LPELR-24397(SC) 1.1.1.1.1
180
(2013) LPELR-21955(CA)
181
Mustapha v. State[2008] WRN (Vol. 2) 76 at 80, Pp. 93; lines 10 - 35 (CA)
182
[2013] LPELR-22601(CA)
52

alibi at the earliest time and once he has given full particulars of the alibi, the prosecution
must investigate it to confirm it or disprove it. Failure to investigate when faced with full
facts of the alibi will vitiate the prosecution183. The alibi to be unequivocal must be complete
as to the time, the place and possibly those people at the place who could help investigation.
The onus to raise alibi is on the accused the onus then shifts to the prosecution to investigate
its veracity or otherwise184. However this defence must be raised at the earliest possible time
i.e. at the investigation stage of the case. This is normally by a suspect in answer to a charge
by the police at the investigation stage to enable the truth or falsity of the allegation to be
established by the Police185. In summary, the defence of alibi is one which must be disclosed
timeously. Not only will the defendant disclose same timeously, he must also give sufficient
particularity to enable the prosecution discharge the onus rebutting the defence placed on
them. It is therefore an essential ingredient on the part of the defendant to raise his defence of
alibi at the earliest possible opportunity and at the same time to give sufficient particularity to
enable the Police carry out sufficient investigation with a view to establishing or rebutting
that which he had claimed.
2.3.3 HOW THE DEFENDANT IS EXPECTED TO RAISE THIS DEFENCE
In Bozin v. State186, the Supreme Court per Karibi Whyte JSC asserted that “it is also well
settled that the accused raises the defence of alibi, by the introduction of evidence leading to
that conclusion. Once an alibi has been raised the burden is on the prosecution to investigate
and rebut such evidence in order to prove its case beyond reasonable doubt. It is conceded
that the prosecution does not have to investigate any offence however improbable. But where
the story of the accused, if believed, is capable of providing a defence, there is in my opinion
183
Ikemson v. State [1989] 3 NWLR (Pt.110) 455
184
Adedeji v. State [1971] ALL NLR 75 AT 79.
185
Adio v. State [1986] 3 NWLR (Pt 31) at 714
186
[1985] 2 NWLR (Pt.8)465 See Adedeji v. The State [1971] 1 All NLR.75
53

a duty to investigate such story. The failure of the prosecution to investigate the story is
tantamount to an admission”.
The above assertion shows that the defendant has no duty to state that he is raising a defence
of alibi. He just has to introduce evidence that leads to the fact that he was elsewhere at the
time the offence was committed. Again such story is one which is capable of being believed.
The existence of these requisites propels the prosecution to investigate and come up with a
report either to rebut or establish the defence of alibi. Thus it has long been settled that the
best time to raise the said defence is at the earliest opportunity, preferably, when the Police is
still investigating the allegation against the defendant. The rationale for this strict prescription
is that it is at that stage that the prosecution would have the amplitude of time and
opportunity to investigate it and either endorse it or debunk it. 187 The question one ought to
ask at this time is whether the need for the defence of alibi justifies the violation of the
Constitutional right of silence on the part of the suspect. It is pertinent to assert that Section
35(2) of the Constitution of Nigeria provides that, “any person arrested or detained shall have
the right to remain silent or avoid answering any question until after consultation with a legal
practitioner or any other person of his own choice”188. There are two realities to this
provision. In the first instance, this right of silent though entrenched in the Constitution is
non-existent. The security agents will not even listen to your plea of silence. Indeed, to keep
silence in any police formation in Nigeria is to invite unbearable torture and incarceration.
Secondly, how will a purely innocent person keep silence in the face of obvious persecution
as against prosecution? These two realities bring us to the fact that theoretically the provision
exists and the next question then is if it exists, is the Defence of Alibi a violation of this right?
Of course, a simple answer to this is that this Defence of Alibi does not violate this right to
silence. The reason is because the suspect has a window of opportunity to consult with any
187
Asuquo v State (2014) LPELR-23490(CA)
188
Cap C23 LFN 2004
54

person of his choice. It suffices to say that once any form of consultation is carried out then
the requirement of the Constitution has been met. At this point, one wonders on who the onus
probandi lies in a defence of alibi. In criminal trials in Nigeria, the onus of proof lies on the
prosecution and that proof must be beyond reasonable doubt. What then does this proof
beyond reasonable doubt entail? In Miller v. Minister of Pensions189, Denning J said that,
“Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Law
would fail to protect the community if it permitted fanciful possibilities to deflect the course
of justice. If the evidence is so strong against a man as to leave only a remote possibility in
his favour which can be dismissed with the sentence ‘of course it is possible but not in the
least probable’ the case is proved beyond reasonable doubt but nothing short of that will
suffice”190. Thus the Prosecution is expected to prove the guilt of the accused person beyond
reasonable doubt. On the other hand, a defence of alibi turns the tide against the claimant.
This is because it is the responsibility of the claimant to initiate the defence and furnish
adequate particularity to enable the prosecution rebut the claim or otherwise. Thus in a claim
for alibi, the Prosecution still has to prove beyond reasonable doubt that the defence did not
avail the claimant. This the prosecution can do through the following mechanisms viz
investigation of the alibi, identification of the alibi claimant, check for contradictions in the
prosecution’s case, consistency in the testimony of the witnesses and then the ingredients of
the offence.191 It is essential that the prosecution must investigate the alibi claim. Failure to
do so may jeopardize the case of the Prosecution.
189
1947 2 All ER 372
190
See also Bakare v State [1987] 1 NWLR (Pt 52) at 579, Ogidi v State [2003] 9 NWLR (Pt 824) at 1
191
Anyogu op cit
55

2.3.4 SUCCESSFUL PLEA OF ALIBI
It is to be noted that where the defence of alibi is successfully pleaded, the liability of the
defendant may be relieved. In Agu v. State192, Rhodes Vivour JSC stated that “a plea of alibi,
if found to be true is a complete defence which absolves the accused person of the charge”. In
Otumbere v. State193, the Court of Appeal Per Eko JCA had this to say “A successful plea of
the defence of alibi is a good defence that completely exonerates the accused as it establishes
his innocence”. The essence of the defence is that at the material time the accused, incapable
of omnipresence as a human being, was at a location other than the scene of crime or locus
criminis, and that the prosecution is proceeding against a wrong person. The defence, if
successfully pleaded and sustained, renders the prosecution’s case incredible, as it casts
serious doubt on the integrity of the prosecution’s case. In other words, in that case; there has
been no proof of the guilt of the accused beyond reasonable doubt. It has the same effect on
the prosecution’s case as it does when the prosecution’s case is riddled with material
contradictions. It is therefore right to conclude that a successful plea of alibi certainly implies
that the defendant was never at the scene of crime and if he was never at the scene of crime
then likely he is not the perpetrator of the act. Of course this conclusion will be valid where
subsection (d) of Section 7 of the Criminal Code is not applicable. In a right tone, the defence
of alibi succeeds where the defendant was absent at the scene of crime and the offence for
which he was charged was one that requires his physical presence at the scene of crime.
192
(2017) LPELR- 41664 (SC)
193
(2013) LPELR-22875(CA)
56

2.3.5 THE DEFENCE OF ALIBI IN CANADA
2.3.6 DELAYED DISCLOSURE OF ALIBI
The “alibi” in Clifford was provided to the police within days of the offence “when there was
no possibility of forgetfulness, mistake or oversight” on the part of the accused,194 the risk of
proffering the same evidence months or years later at trial when it may be harder to disprove
(or corroborate), carries the same risk should a witness die or become forgetful. Indeed, if it
is possibly true, failing to disclose the alibi in a timely manner to either the police or the
Crown may result in adverse inferences against the accused.
For example, in R v. Cain, the accused was arrested for murder in November 2006 and
committed to stand trial in October 2007. While the defence obtained alibi statements from
several witnesses in late 2006 and subsequently advised the Crown and police as to the
existence of an alibi defence in December 2007, no details were provided except that one of
the witnesses had died a few days earlier (but a year after the defence had obtained a
statement from him). The statement of the dead witness was provided to the Crown in June
2008 and the information about the other witnesses was provided in December 2008, a month
before the original trial date. The alibi witnesses subsequently made themselves available for
interview by the police on February 25, 2009.
The trial judge gave “late alibi adverse inference” instructions to the jury, which advised that
they “may, not must, accord less weight to the alibi.” The jury ultimately returned a verdict of
guilty. The Ontario Court of Appeal affirmed the jury instructions were correct, holding:
“It was obvious on the record that investigation of both alibis was hampered by the late
disclosure. This was a case in which early disclosure was critical to a proper investigation of
both alibis. The police had to be able to assess the accuracy of each alibi witness’s estimate of
the timing of the movements of the accused…[Indeed] late disclosure…deprived police of the
194
Clifford, supra note 5 at para 30.
57

ability to speak with Williams as disclosure that Williams was the alibi witness was not made
until after he was dead.”195
While it is true that an accused person does not have to disclose his defence, including alibi,
the consequence of failing to disclose an alibi in a timely manner to the Crown is that the
judge or jury may draw an adverse inference that it has been fabricated. Nevertheless, a
delayed disclosure by the accused may only weaken the alibi evidence, and it cannot be
excluded at trial.
An alibi does not need to be disclosed on arrest or at the first possible opportunity. All that is
required is that it be disclosed sufficiently prior to trial and in a manner that will permit a
meaningful investigation by the Crown. Given the ease with which an alibi could be
fabricated, this rule protects against a last minute defence that may be impossible for the
Crown to verify. Where the alibi is not disclosed and the accused presents it for the first time
at trial, the judge can instruct the jury to draw an adverse inference from the late disclosure,
but cannot prevent the evidence from being called.
However, where there is evidence that an alibi has been fabricated, this may be used as
circumstantial evidence to draw an inference or “consciousness” of guilt. Nevertheless, an
alibi that is merely disbelieved or rejected cannot serve to corroborate or complement the
Crown’s case, let alone permit an inference of guilt by the Crown. As noted by the Supreme
Court in R v. Hibbert:
“Evidence that the accused attempted to put forward a fabricated defence, that effort, akin to
an effort to bribe or threaten a witness or a juror, could be tendered as evidence of
consciousness of guilt. However, an alibi that is merely disbelieved is not evidence of guilt. It
195
R v Cain, 2015 ONCA 815 at paras 34, 36, 330 CCC (3d) 478, leave to appeal to SCC refused 2016 CanLII
66195. See also R v Gulliver, 2018 SCC 24, aff’g 2017 ABCA 223 at para 8, which found the trial judge was
entitled to rely on a late disclosure of 18 months when evaluating the strength of the alibi evidence in
determining it was unreliable [cited to ABCA].
58

is only if it can be proven that the accused participated in the deceit or was directly involved
in creating the false alibi, that there can be an inference of guilt.196
Nevertheless, even if defence counsel has notified the Crown of its intention to present an
alibi, the Crown may have to wait until the accused has presented the evidence before it seeks
to establish that it was false and or fabricated. The reason for this is that the Crown cannot
rebut a defence not called, and the accused is under no duty to advance any particular
defence.197
However, in R v. Tudor198 (as in Clifford) the Alberta Court of Appeal held that it was open
to a trial judge to find that an alibi was fabricated even where it is the Crown that tenders the
accused’s statement containing the alibi during its case, and the accused does not tender any
evidence of alibi.199
2.3.7 OBLIGATION TO DISCLOSE ALIBI
At trial, the accused is protected by a right to silence. Specifically, they cannot be compelled
to testify, and they have a right not to have their testimony used against them in future
proceedings. These protections against testimonial compulsion have been constitutionalized
in section 11(c) (right of the accused not to be compelled to testify) of Canadian Charter of
Rights and Freedoms 200 and section 13 (right of witness not to have his or her testimony from
one proceeding used to incriminate him or her in a subsequent proceeding)201 of the Charter.
196
R v Hibbert, [2002] 2 SCR 445 at 62–63, 211 DLR (4th) 223. See also R v Trochym, 2007 SCC 6 at para 172,
[2007] 1 SCR 239; R v Tessier (1997), 113 CCC (3d) 538, [1997] BCJ No 515 (QL) (five-judge panel of the
CA); Oland, supra note 7.
197
In addition, situations may change such that defence counsel becomes ethically prevented from calling alibi
evidence in support of an alibi he or she knows or reasonably believes is false based on admissions from his or
her client. See Federation of Law Societies of Canada, Model Code of Professional Conduct, ch 5.1-1[10] (as
amended 14 March 2017), online: <https://flsc.ca/wp-content/uploads/2018/03/Model-Code-as-amended-
March-2017-Final.pdf>.
198
R v Tudor, 2003 ABCA 352, 26 Alta LR (4th) 27 [cited to ABCA].
199
Ibid at para 11. See also R v O’Connor (2002), 62 OR (3d) 263, 2002 CanLII 3540 at paras 24–33 (CA) [cited
to CanLII]; Clifford, supra note 5.
200
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK), 1982, c 11 [Charter].
201
Ibid, s 13.
59

When combined with section 11(d) (presumption of innocence),202 sections 11(c) and 13 of
the Charter protect the basic tenet of justice that the Crown must establish a “case to meet”
before there can be any expectation that the accused should respond.203
However, once there is a “case-to-meet” which, if believed, would result in a conviction, the
accused can no longer remain a passive participant in the prosecutorial process and becomes -
in a broad sense - compellable. That is, the accused may have to answer the case against him,
or face the possibility of conviction.204
While the relationship between the case-to-meet principle and the presumption of innocence
is altered by such constitutionally permissible reverse-onus provisions, the Supreme Court of
Canada has held that such provisions, which violate section 11(d) of the Charter,205 may
nonetheless constitute a reasonable limit, demonstrably justified in a free and democratic
society.
For example, the defence in Canada is under no legal obligation to cooperate with or assist
the Crown by announcing any special defence, such as an alibi, or by producing documentary
or physical evidence.206 However, “this protection against disclosure is not an absolute one,
and failure to disclose an alibi defence in a timely manner may affect the weight given to the
defence.”207
202
Ibid, s 11(d).
203
R v P(MB), [1994] 1 SCR 555 at 580, 113 DLR (4th) 461 [P(MB)]. Nevertheless, it is an error to instruct the
jury that they are entitled to draw an adverse inference from the failure of the accused to testify in support of his
or her alibi defence. See R v Miller (1998), 131 CCC (3d) 141, [1998] OJ No 356 (QL) (CA).
204
P(MB), supra note 17. See also R v Noble, [1997] 1 SCR 874, 146 DLR (4th) 385 [Noble], and Clifford,
supra note 5 at para 9, where the Court stated that “this principle may be traced back in this court to R v Jenkins
(1908) 14 CCC 221 (BCCA), if not farther.” See also Murray v United Kingdom (1996), 22 EHRR 297, where
the European Court of Human Rights held that drawing an adverse inference “in situations which clearly call for
an explanation” is acceptable because “the question whether the right [to silence] is absolute must be answered
in the negative.”
205
Charter, supra note 14.
206
R v Stinchcombe, [1991] 3 SCR 326 at 333, 83 Alta LR (2d) 193. Indeed, where the defence is not one of
alibi, but evidence is called to show the accused was outside a shed where the offence happened verses inside, it
does not have to be disclosed to the prosecution, nor can an adverse inference be drawn because of this as the
accused was not “elsewhere.” See R v Taylor, 2012 NLCA 33, rev’d [2013] 1 SCR 465 but not on this point.
207
P(MB), supra note 17 at 578. This was reaffirmed in R v S(R.J), [1995] 1 SCR 451 at 517, 121 DLR (4th)
589.
60

As noted by the Supreme Court, “alibi defences create exceptions to the right to silence. For
example, while the accused generally has a right to silence during the investigative stage of a
criminal proceeding, if an alibi defence is not disclosed in a sufficiently particularized form at
a sufficiently early time to permit the police to investigate it prior to trial, the trier of fact may
draw an adverse inference from the accused’s pre-trial silence.”208
This rule has a strong tradition in Canada, and is based upon the relative ease with which an
alibi defence can be fabricated. As a result, the potential for the fabrication of alibi evidence
allows a negative inference to be drawn against such evidence where the alibi defence is not
disclosed in sufficient time to permit investigation.209
Furthermore, while the failure to testify cannot be used to assess credibility of witnesses, in
the case where the defence of alibi is advanced, the trier of fact may draw an adverse
inference from the failure of the accused to testify and subject themselves to cross-
examination. “While it must be conceded that this exception does undermine the presumption
of innocence and the right to silence, it has a long and uniform history pre-dating the Charter
and must be taken to have been incorporated into the principles of fundamental justice in
section 7.”210
Nevertheless, as noted in R v. Sophonow: “there is no rule of law or practice which precludes
evidence in support of an alibi being tendered in the absence of testimony by the accused.
The accused’s right not to testify is absolute and its exercise does not limit his right to call
other witnesses. [While] appellate courts have said on many occasions that as a general rule,
an alibi defence will not be entertained on appeal unless supported by evidence from the
208
Noble, supra note 18 at para 111. See also R v Chambers, [1990] 2 SCR 1293 at 1320, 119 NR 321.
209
R v Russell (1936), 67 CCC 28 at 32. See also Vézeau v The Queen, [1977] 2 SCR 277 [Vézeau]; P(MB),
supra note 17; S(RJ), supra note 21; Noble, supra note 18; R v Cleghorn, [1995] 3 SCR 175, 186 NR 49
[Cleghorn].
210
Noble, supra note 18 at para 113. See also R v Creighton, [1995] 1 SCR 858 at 878, 179 NR 161; Vézeau,
supra note 23 at 288.
61

accused, that does not mean that the accused is not entitled, without testifying himself, to set
up an alibi defence by calling other witnesses.211
However, where that witness appears for the first time at trial, the weight afforded to that
witness’s evidence may be significantly reduced and may in fact draw an adverse inference
from the Court. As noted by the Supreme Court in R v. Cleghorn:
“Disclosure of an alibi has two components: adequacy and timeliness. This principle was
reiterated in R v. Letourneau (1994), 87 CCC (3d) 481 (BCCA), where Cumming J.A. wrote
for a unanimous court at p. 532:
It is settled law that disclosure of a defence of alibi should meet two requirements:
(a) it should be given in sufficient time to permit the authorities to investigate: see R v.
Mahoney, supra, at p. 387, and R v. Dunbar and Logan (1982), 68 CCC (2d) 13 at pp. 62-3
(Ont CA);
(b) it should be given with sufficient particularity to enable the authorities to meaningfully
investigate: see R v. Ford (1993), 78 CCC (3d) 481 at pp. 504-5 (BCCA).
Failure to give notice of alibi does not vitiate the defence, although it may result in a
lessening of the weight that the trier of fact will accord it.212
However, as noted by the Ontario Court of Appeal in R v. Wright, where the alibi defence is
disclosed in time to permit meaningful investigation of the defence, there can be no
justification for the adverse inference instruction.213
211
See R v Sophonow (1986), 38 Man R (2d) 198 at paras 129–130, 25 CCC (3d) 415, leave to appeal to the
SCC refused, [1986] 1 SCR xiii, 44 Man R (2d) 80.
212
Cleghorn, supra note 23 at 179–180.
213
R v Wright, 2009 ONCA 623 at para 20, 98 OR (3d) 665. See also R v Hogan (1982), 2 CCC (3d) 557 at 566,
[1982] OJ No 189 (QL) (CA). Furthermore, failure to investigate an alibi that has been disclosed carries with it a
risk to the Crown of failing to disprove the alibi; however, it does not prejudice the accused, who is in a position
to benefit from the Crown’s failure to disprove the alibi. See R v Levesque, 2003 ABCA 349, [2003] AJ No
1480 (QL).
62

2.3.8 RIGHT TO SILENCE
While some authors at the time suggested that the Supreme Court had not actually ruled on
the constitutionality of the alibi exception with respect to the right to silence enshrined in the
Charter,214 the Court had already ruled that the imposition of an evidentiary burden on the
accused may be justified even though it still impaired the right to be presumed innocent, so
long as the burden of proof was not on the accused.215
Furthermore, the Supreme Court did state that the rule “has been adapted to conform to
Charter norms in that disclosure is proper when it allows the prosecution and police to
investigate the alibi evidence before trial.”216 As such it appears that in R v. Cleghorn the rule
did receive some scrutiny by the Court with respect to the Charter. In addition, one must
consider that the case cited by the Supreme Court (R v. Letourneau) was actually on leave to
the Court at the time of this decision, specifically with respect to the alibi exception and the
right to silence.217 As such, it cannot be said that the Court did not consider the alibi
exception to the right to silence, and as a result this case will be explored further.
In Letourneau, the defence gave no alibi notice whatsoever. As a result, the trial judge stated
that the jury could take the delay into account, stating “the longer the delay from the time the
offence was committed to the time when the accused told the Crown that they were elsewhere
on the date it took place, the more suspicious the alibi becomes.”218
As argued by the Crown, it was incumbent upon the defence to disclose their alibi in a timely
manner because, “if supported on investigation, [it] demonstrates that the Crown has charged
214
Cf John D Craig, “The Alibi Exception to the Right to Silence” (1996) 39:2 CLQ 227.
215
Laba, supra note 1 at 1011.
216
Cleghorn, supra note 23 at para 4.
217
Leave to appeal the decision in R v Letourneau (1994), 87 CCC (3d) 481, [1994] BCJ No 265 (QL)
(BCCA), was filed on May 12, 1995 [Letourneau cited to BCJ]. One of the issues on appeal was “whether the
Court of Appeal erred in holding that the requirement that an accused give notice of an alibi did not violate his s.
7 Charter rights.” However, leave to appeal was subsequently dismissed on November 2, 1995, shortly after the
decision in Cleghorn, supra note 18, was released on September 21, 1995. See Supreme Court Bulletins dated
July 21 and November 3, 1995, docket 24645.
218
Letourneau, supra note 31 at para 163, leave to appeal to SCC refused (1996), 102 CCC (3d) vi (2 November
1995). See also R v Usereau, 2010 QCCA 894 at paras 96–97, 256 CCC (3d) 499.
63

the wrong person…it is a matter of common sense that delay in disclosing alibi leaves the
evidence open to suspicion. By its very nature alibi is a defence that has the potential of being
a complete answer to a criminal charge, or at least of rendering the accused’s participation in
the event highly improbable, and thus one would expect the accused to raise the matter at an
early time.”219
On the other hand, defence counsel submitted “that no adverse inference should be drawn, or
prejudice to the accused incurred, where the defence determines to exercise the right to
silence and elects not to call defence evidence. He therefore submitted that there can be no
obligation to disclose a potential alibi defence until the accused forms the intention to rely on
that defence at trial [and that] the accused is under no legal or practical obligation to respond
to the accusation until there is an evidentiary case to meet.”220
He argued that a “determination to disclose a potential alibi may only be meaningfully made
when the defence has received full and timely disclosure of the Crown’s case. There can be
no crystallization of an obligation to disclose an alibi before the defence has been fully
apprised of the case to be met without rendering the right to silence meaningless. He
submitted that, in this case, the failure by the Crown to make full and timely disclosure of all
relevant material effectively negated the imputed defence’s obligation to disclose potential
alibi evidence in sufficient time for investigation.”221
In response, the Crown submitted that whether or not they had made full disclosure, the
appellants knew the nature of the charges they were facing at the time of their arrest.
Furthermore, the Crown submitted that by its very nature, alibi is a unique defence that
denies any involvement by the accused in the crime alleged, and the Crown’s case is
irrelevant to the defence of alibi.
The Court agreed with the Crown, stating that:

219
Letourneau, supra note 31 at paras 164, 169.
220
Ibid at para 173.
221
Ibid at paras 174–76.
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The so-called rule that an alibi must be disclosed “at a time when an investigation may
uncover something” with “full particulars of the defence” is an exception to the general rule
of inadmissibility of pre-trial silence.
It is almost inexplicable why two men arrested as suspects in a recent, brutal murder, if
innocent, would not immediately disclose the fact that they were elsewhere. It is even more
inexplicable that the same two men, facing or following a committal at a Preliminary Inquiry,
with competent legal advice, would not explain themselves in order to avoid trial and the risk
of being convicted of such a serious offence.
“In my judgment, an alibi is either true or not true, and, if true, constitutes a complete
defence. It is unlike most defences about which an accused can remain silent until he has had
an opportunity to assess the Crown’s case, the disclosure of which is governed now by
Stinchcombe, supra. When it comes to factual innocence, however, what the Crown has or
has not disclosed, and when, must be irrelevant.”222
In reaching their unanimous decision, the Court of Appeal relied on a previous decision of the
Court in R v. Ford.223 In that case the Court held that for an alibi to be investigated, the
Crown requires the following from the defence224:
A) Full particulars of the defence including the names of any witnesses.
B) Disclosure at a time when an investigation may uncover something.
The Court further noted that considering many criminal trials take two years or more to
proceed, disclosure ought to take place at a time before memories of and records of a certain
day have failed or been destroyed. For instance, in this case, if the accused’s alibi had been
disclosed to the police within the first two months, something may have been discovered.
However, by waiting nearly 17 months, “what chance would there be of anything being
222
Ibid at paras 178–180, 189 [emphasis added].
223
R v Ford (1993), 78 CCC (3d) 481, [1993] BCJ No 147 (QL) (CA).
224
Ibid at para 92.
65

remembered?” One cannot follow a cold trail. In the case at bar, the disclosure of alibi was so
sparse as not to constitute full and proper disclosure.”225
Although the accused is under no legal obligation to cooperate with or assist the Crown by
announcing its defence, failure to disclose an alibi in a timely manner may affect the weight
given to it by the jury. In R v. Nelson,226 the court had to decide whether an alibi arising out
of cross-examination of the accused qualifies as an undisclosed alibi allowing for an adverse
inference, considering he has a Charter right to silence until he actually takes the stand:
“When arrested shortly after the event, the appellant had told the police that he was at home
when Miss Edwards was attacked. He offered no further details as to his whereabouts and
made no reference to his uncle’s girlfriend or the two women in the other apartment. These
details first emerged during the appellant’s cross-examination.
Counsel for the appellant forcefully submitted that the Crown improperly invited the jury to
draw an adverse inference from the defence's failure to call witnesses who could, according
to the appellant’s testimony, account for his whereabouts at the time of the attack on Miss
Edwards and her friend. Counsel further argued that even if the inference could be drawn, the
trial judge erred in failing to instruct the jury as to the limited nature of that inference and the
caution to be exercised before drawing that inference.227
On appeal the Crown characterized this as a case of an undisclosed alibi. It was argued that
the accused’s failure until cross-examination to reveal the identity of witnesses who could
confirm his whereabouts amounted to a failure to give timely notice of the essential details of
an alibi, and invited an instruction as to the adverse inference, which could be drawn from the
failure to give that timely notice.
The Court of Appeal accepted the Crown’s submission that the accused’s failure to disclose
to the prosecution until cross-examination the identity of those who could confirm his
225
Ibid.
226
R v Nelson (2001), 147 OAC 358, [2001] OJ No 2585 (QL) (CA).
227
Ibid at paras 5–6. See also R v Hinde, 2001 BCCA 723 at para 22, 52 WCB (2d) 143 [Hinde].
66

whereabouts denied the prosecution the opportunity to effectively investigate the alibi. The
Court stated that:
“in these circumstances, the trial judge should have told the jury that the accused’s failure to
make timely disclosure…was a factor to be considered in determining what weight should be
given to his evidence.”228
However, even if the accused notifies the Crown that it intends to raise an alibi defence, the
Ontario Court of Appeal has ruled in R v. Witter that the Crown must wait until the accused
actually testifies before it attempts to show the alibi is false, and thus draw an inference of
guilt. The Court reasoned that the Crown cannot rebut a defence not called and the accused is
under no duty to advance any particular defence.229
2.3.9 ALIBI NOTICE AS EVIDENCE
An interesting issue that arose during Witter was whether or not an alibi notice was a
statement made by counsel as agent for the accused and was, therefore, admissible as a
statement made by him in Court, whether or not he actually testified.230
In this case, the defence provided written notice to the Crown about ten days before the trial
advising that they intended to advance an alibi defence. They provided the Crown with a
statement signed by the accused’s former girlfriend, which stated that the accused was at her
home when the incident occurred. Investigation by the police subsequently determined that
the alibi was false and the Crown submitted that the alibi notice was a statement made by
counsel as agent for the accused and was, therefore, admissible.
The defence objected to the admissibility of the alibi notice, stating that they could not decide
whether to call the alibi evidence referred to in the notice until it had heard the case for the
228
Hinde, supra note 41 at para 22.
229
R v Witter (1996), 105 CCC (3d) 44, 1996 CarswellOnt 325 (five-judge panel of the CA) [Witter]. However,
see contra R v Gillespie (1990), 10 WCB (2d) 461, 1990 CarswellOnt 3957; R v Rossborough (1985), 81 CR
App R 139, [1985] Crim LR 372.
230
Witter, supra note 43 at para 9.
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Crown. The defence argued that if the Crown were allowed to tender the alibi notice as part
of its case, they would be forced to put forward the alibi defence or risk an adverse inference
from its failure to advance that defence before the jury. Furthermore, it was argued that the
accused’s constitutional right to remain silent and his constitutional protection against self-
incrimination precluded the admission of the alibi notice during the case for the Crown
At trial, the judge held that the alibi notice was in the same position as any other relevant and
voluntary statement made by an accused to the police, and the Crown was entitled to put in
such a statement as part of their case, whether or not they call evidence to refute it. Further, if
the prosecution is able to prove beyond a reasonable doubt that the alibi is false then that may
well become a circumstance requiring a judicial instruction to the jury on consciousness of
guilt.
A number of grounds were argued on appeal, including whether or not the notice was in fact
a statement of the accused. If so, whether or not it was voluntary considering that it was
“coerced” by the common law rule which requires an accused to make timely disclosure of an
alibi or risk an adverse instruction based on the failure to disclose that alibi, or if it should
have been excluded by a privilege akin to that which protects communications made in
pursuit of settlement.
Unfortunately, the Court of Appeal did not rule on any of these grounds stating that “the
question of when, if ever, an alibi notice provided to the Crown by an accused’s solicitor can
be treated as a statement of the accused is an open one [as is] the further question of whether
the alibi notice should be admissible as part of the Crown’s case even if it is regarded as a
statement of the accused as equally open.”231 Instead, the Court ordered a new trial on the
sole ground that the trial judge had erred in instructing the jury that they could find that the
231
Ibid at para 38.
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alibi referred to in the notice was concocted by the appellant and could provide a basis for an
inference of consciousness of guilt.232
While the Court confirmed that an inference of guilt could be drawn from an accused that
fabricates an alibi, and thus proves beyond a reasonable doubt that the accused was the
person who committed the crime, there must be evidence that the alibi was deliberately
fabricated and that the accused was a party to that fabrication – mere rejection of alibi
evidence as untruthful or unreliable does not constitute affirmative evidence of guilt. There
was, however, no basis for suggesting that the alibi witness deliberately put forward an alibi
that she knew was false, or that the accused played any role in authoring it.
However, if the evidence adduced by the Crown is capable of supporting the inference that an
accused concocted a false alibi, an alibi notice professing an intention to advance that alibi at
trial would be relevant in that it would tend to support the consciousness of guilt inference.
Ultimately, although the alibi evidence that was potentially offered by the former girlfriend
was found to be untruthful or unreliable, it could not be shown that it was fabricated or
concocted by the accused.233
As such it is possible that a fabricated alibi (although not an alibi that is unreliable or
unbelievable) may be tendered as evidence by the Crown, even though it has not been led by
the defence, other than by way of a pre-trial notice. While this is generally not the case in the
United States, where the Courts have stated that the “prosecution should not be permitted to
impeach a defendant who has elected not to present an alibi defence at trial with statements
contained in a notice of alibi withdrawn before trial,”234 the Courts have held that a
232
Ibid at para 29.
233
However, see R v Nielsen (1984), 30 Man R (2d) 81, 16 CCC (3d) 39 (CA), leave to appeal to SCC refused,
[1985] 1 SCR xi, and the subsequent re-trial of Jerry Stolar in 1989 where his “alibi” witness (former girlfriend)
actually turned out to be a witness for the Crown.
234
People v Brown, 98 NY2d 226 at 235 (2002). See also People v Holland, 445 NW2d 206 (1989); People v
Hunter, 291 NW2d 186 (1980); New Jersey v Gross, 523 A2d 212 (NJ Super AD 1987).
69

prosecutor may use a withdrawn alibi notice, where an entirely different alibi is provided at
trial.235
235
See e.g. People v Von Everett, 402 NW2d 773 (1986); People v Malone, 447 NW2d 157 (1989); People v
Lorenzo McCray, Mich CA LC 98-001064 (2001). See also People v Franklin Rodriguez, 2004 NY Int 147, in
which a majority the court (4:3) held that the alibi notice should not have been used as evidence of the suspect’s
guilt where there was a plausible basis for abandoning it (the minority held that the alibi notice was properly
admitted as evidence). Nevertheless, the majority held that the error was harmless and affirmed the convictions.
70

CHAPTER 3
JUDICIAL AND SUPERIOR OFFICERS IN EXECUTION OF THE LAW AND
INTOXICATION
3.1 JUDICIAL AND SUPERIOR OFFICERS IN EXECUTION OF THE LAW
3.1.1 JUDICIAL AND SUPERIOR OFFICERS IN EXECUTION OF THE LAW IN
NIGERIA
Apart from cases of emergency there are a number of other situations where a man may be
forced by circumstances or in consequence of a legal duty to take action which would be
unlawful if the law did not make special provision for the case.
It is important to note in this respect that members of the military and police forces are not
immune from the ordinary rules of responsibility. Section 15 of the Criminal Code expressly
provides that they are subject not only to the special laws relating to them (e.g. the Police
Act) but also to the Code provisions. However, as a result of the special duties which have to
be carried out by the police and armed forces, they are given certain powers to arrest and to
use force which are not available to private citizens.
3.1.2 JUDICIAL OFFICERS
Unless expressly provided otherwise, a judicial officer236 is not criminally responsible for
anything done by him in exercise of his judicial function, even though the act done is an
excess of his judicial authority, or even though he is bound to do the act omitted to be done
(Criminal Code section 31). There is exemption for those who carry out erroneous sentences,
processes or warrants. In English law, no action, civil or criminal lies against a judge of a
236
“Judicial officer” includes all Supreme and High Court Judges, Magistrates, and district officers when acting
judicially –C.C. s. 1; and also Judges of the Federal Court of Appeal.
71

superior court in respect of any act done by him in his judicial capacity, even though he acted
maliciously.237 Whether that principle would apply to cases under section 31 of the Criminal
Code where the act was in excess of his judicial authority may be doubted.
3.1.3 THE EXECUTION OF THE LAW
There is no legal responsibility for one, who acts or omits to act in execution of the law238,
e.g. the police man who arrests an offender does not commit an assault. Neither in this or any
of the other defences in section 32 of the Criminal Code is protection extended to an act or
omission, which would constitute an offence punishable with death or an offence of which
grievous harm to the person or intention to cause such harm is an element. 239 The case of the
public hangman, or the man who carries out a sentence of corporal punishment, is covered by
Section 254 of the Criminal Code which makes lawful the execution of sentences.
3.1.4 SUPERIOR ORDERS
A person is not criminally liable for an act or omission committed in obedience to the order
of a competent authority which he is bound by law to obey.240 The defence does not avail if
the order is manifestly unlawful, and whether an order is manifestly unlawful is a question of
law. The role most obviously applies to soldiers and policemen, and it is repeated in those
sections which deal with the powers to suppress riots.241 In Ededey v. State242 the appellant,
an acting Chief Superintendent of Police led the Mobile Police Force which was under him
on a widespread assault and looting spree on rider to recoup himself of money stolen from his
237
Anderson v Gorrie [1895] 1 Q.B. 668.
238
C.C. section 32(1). Penal Code section 45.
239
See R v Silk [1973] Qd. R. 298. It was held in this case that that the proviso appearing after section 32(4) of
the Criminal Code is intended to apply to all other subsections of that section and is not limited to subsection 4.
240
C.C. s. 32(2).
241
C.C. ss. 278, 280.
242
[1972] 1 All N.L.R. (Pt. 1.) 15.
72

wife near the market at Aba. He was convicted of assault and stealing. On appeal it was
argued that his subordinate officers who took part in the raid and who had testified against
him were accomplices whose evidence required corroboration. Rejecting the argument, the
Supreme Court thought that Section 32(2) of the Criminal Code applied to them. It is
submitted with respect that this is wrong for the order to police officers to assault and plunder
innocent citizens whom they had a duty to protect was manifestly unlawful and they could
have been convicted if charged with the same offences.
In State v. Nwaoga243, the accused, an officer in the Biafran army was ordered by his superior
officer to lead two other officers to Nike which was then in the hands of federal troops and
identify the deceased (a former Biafran soldier accused of sabotage) to those officers who
were to kill him. The accused obeyed the order and was subsequently charged with murder
after the civil war. He pleaded superior orders but the trial judge rejected the defence because
the order was “given by an officer of an illegal regime” whose orders were necessarily
unlawful. On appeal, the Supreme Court preferred to uphold the conviction on the ground
that as the accused went into federal territory disguised as a civilian and appearing to be a
member of the peaceful private population and committed an offence therein, he was liable to
punishment like any other civilian. Although, the point does not appear in the judgement, the
accused would not in the event be protected by section 32(2) the proviso to which excludes
offences punishable with death. Neither in the judgement of the High Court nor in that of the
Supreme Court was there any mention of section 32(2). It is clear therefore whether the
defence of superior orders was considered under the Code or the common law. If the former,
the case should have been disposed of on the short ground that it could not be raised to a
243
[1972] 1 All N.L.R. (Pt. 1.) 149; (1972) 2 E.C.S.L.R. 244. See [1970-71] 1 E.C.S.L.R. 17 for the High Court
judgement).
73

charge of murder. If the latter, then both courts were in error because the defence of superior
orders is dealt with in the Code and the Common Law should not apply.
3.1.5 THE DEFENCE OF SUPERIOR ORDERS IN ENGLAND
The defence of duress and superior orders are similar on the basis that the defendant lacks
effective and real choice in committing the crime; he was forced by someone else to do
something he was loath to do. A subordinate may assert that he was forced by duty and
loyalty to a superior to obey an order which leads him into conflict with the criminal law. It
would seem that superior orders should constitute an excuse. The inferior has done wrong but
is excused from blame. It is, however, clear that there is no such defence as superior orders in
English law. Lord Salmon in the duress case of Abbot244 said that the idea of such a defence
“has always been universally rejected” and Lord Hailsham took a similar position in Howe245.
In Yip Chiu-Chang246it was held that a person, who acted as an undercover agent to break a
drug ring in Hong Kong, could be guilty of conspiring to traffic in dangerous drugs. The
Privy Council confirmed that there was no general of superior orders as “neither the police,
nor customs, nor any other members of the of the executive” had any power to alter the terms
of the Hong Kong Ordinance that made the export of heroine unlawful even they
acknowledged the fact that what the defendant had done was courageous and from the best of
motives. In Clegg, the House of Lords held that the soldier would not be entitled to be
acquitted by virtue of superior orders as “no such general defence is known to English law.247
While such an approach might be uncontroversial in civil situations, the matter is not free
from dispute in relation to military situations where it may be argued that the claims of duty,
244
[1976] 3 W.L.R. 462 at 469.
245
[1987] A.C. 417 at 427.
246
[1995] 1 A.C. 111.
247
[1995] 1 A.C. 482 at 498.
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especially in war-time, are so strong as to warrant some kind of defence of superior orders.248
The English approach of denying the existence of a defence of superior orders has been
condemned as inappropriate and unrealistic.
Given recent judicial pronouncements against superior orders (and both duress and duress of
circumstances as a defence to murder) it seems most unlikely that any change will take place.
Moreover, there must remain grave doubts as to the wisdom of introducing a defence that
would allow soldiers to kill innocent persons deliberately and claim that their actions were
excused.
3.2 INTOXICATION
3.2.1 THE DEFENCE OF INTOXICATION IN NIGERIA
The rules concerning intoxication are stated in section 29 of the Criminal Code. On the
whole, they do not appear to add anything to the general principles of liability already stated,
but merely serve to emphasise those principles when applied to cases involving an accused
who was drunk at the time he committed an unlawful act.249
In general, intoxication is not a defence to a criminal charge. 250 But there may be a defence
where intoxication is involuntary; and even voluntary intoxication may have some mitigating
effect on criminal liability. 251 In fact although intoxication is no excuse and a drunken man is
legally no better off than a sober man, he is also legally no worse off. For the purposes of the
248
As no similar justification exists in civil situations it is not proposed to discuss superior orders further in that
context.
249
The point is illustrated in the law of Northern Nigeria. Under the Penal Code, the only mention of voluntary
intoxication is that “a person who does an act in a state of intoxication is presumed to have the same knowledge
as he would have he had not been intoxicated” (P.C s. 44). Nevertheless, evidence of intoxication may show that
the accused did not have the requisite intention or knowledge for the crime. See Gledhill, pp. 127-130.
250
C.C. s. 29(1).
251
The terms “voluntary” and “involuntary” intoxication are not used in the Code, but they are convenient.
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Code provisions, section 29(5) provides that intoxication may include a state of mind induced
by narcotics and drugs.
3.2.2 INVOLUNTARY INTOXICATION
Section 29(2a) of the Criminal Code provides a defence for any person who commits an
unlawful act in a state of intoxication which was caused without his consent by the malicious
or negligent act of another person, and by reason of which he did not know such act or
omission was wrong, or did not know what he was doing. The rule as to consent presumably
means that the defence is defeated only if the consent is given with full awareness of the true
position. If a doctor negligently administered a narcotic instead of the prescribed harmless
drug to a patient, then even though the latter would be agreeing to the injection, he could not
be said to be consenting to the resulting intoxication if he was not aware of the doctor’s
mistake.
The wording of the provision is that the act of the other party must be malicious or negligent.
If the injection of the wrong drug in the above example were accidental and negligent, then
the patient who subsequently committed an unlawful act in an intoxicated state could not rely
on section 29(2a). Nor does the sub-section cover the case of the man who mistakenly
administers an intoxicant to himself. The intoxication in such a case is “involuntary” but the
defence could not be based on the subsection. In both cases, an accused would have to rely on
a defence of “act independent of the exercise of the will” under section 24252 or section 29(4).
252
Which produces the odd result that if the act of the other party was accidental, the burden of proof of
intoxication (apart from the evidential burden) is on the prosecution, but that if was intentional or negligent, it is
on the defence.
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3.2.3 VOLUNATRY INTOXICATION
The wording of the criminal Code on the subject of voluntary intoxication is somewhat
clumsy. The effect of section 29(2b) is to provide a defence of intoxication if by reason
thereof:
(i) “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 doing,” and
(ii) “the person charged was by reason of intoxication insane, temporarily or
otherwise at the time of such act or omission.”
If section 28 provides the meaning of “insane” in section 29(2b) then it would seem that the
latter section does not apply unless the intoxication is such as to have produced in the accused
“a state of mental disease or natural mental infirmity”253 (temporary or otherwise) as defined
in section 28. It would therefore follow that section 29(2b) does not really create any defence
which is not covered by section 28, but that it merely serves to emphasise that insanity
coupled with drunkenness is still insanity and that drunkenness under section 29(2b) is a form
of insanity. That this is the correct view of the section would appear from the approval given
by the West African Court of Appeal in R v. Owarey254 to the leading English case of D.P.P
v. Beard in which Lord Birkenhead stated that “Insanity, whether produced by drunkenness
or otherwise is a defence to the crime charged.”255Delirium Tremens provides a good
example of drunkenness producing a mental disease. That this is a state of insanity is
emphasised by the fact that an attack of delirium tremens may occur at a time of complete
abstinence.256
253
But intoxication could hardly be said to produce a natural mental infirmity.
254
(1939) 5 W.A.C.A. 66.
255
[1920] A.C. 479, at 500.
256
See Glanville Williams, p. 561.
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As far as legal consequences are concerned the distinction between a defence under
subsection (2a) and one other subsection (2b) is that the former results in acquittal and
discharge, whereas the rules about committing the accused under sections 229 and 230 of the
Criminal Procedure Act apply to the latter257 because it is a case of insanity.
The Evidence Act section 140(3c) clearly places the burden of proving the defence of
intoxication (as also insanity) on the accused. Presumably the quantum of proof is as insanity.
3.2.4 INTOXICATION AS A FACTOR IN NEGATIVING THE SUBJECTIVE
MENTAL ELEMENT IN CRIME
Even if the accused’s intoxication was not such as to bring him within the provisions of the
law so far discussed, it may yet have bearing on his liability. Section 29(4) provides that:
“Intoxication shall be taken into account for the purpose of determining whether the person
charged has formed any intention, specific or otherwise, in the absence of which he would
not be guilty of the offence.”
In Beard’s case, Lord Birkenhead explained the distinction between cases where intoxication
produces insanity and cases where it negatives intent:
“the distinction between the defence of insanity in the true sense caused by excessive
drinking, and the defence of drunkenness which produces a condition such that the drunken
man’s mind becomes incapable of forming a specific intention, has been preserved
throughout the cases.”258
257
C.C. s. 29 (3).
258
[1920] A.C. 479 at p.500
78

“Evidence of drunkenness which renders the accused incapable of forming the specific intent
essential to constitute the crime should be taken into consideration with the other facts proved
in order to determine whether or not he had this intent.”
These passages must be read with caution. It might be inferred from them that in English law
the prosecution will succeed if they can prove that the accused had the capacity to form intent
even though he did not in fact form the intent. But section 29(4) is quite clear that they must
prove the actual intent, and the evidence of drunkenness may negative this.259
Intoxication sufficient to negative intent is a question of fact in all the circumstances of the
case. In R v. Owarey,260 the accused was undoubtedly the worse for drink when he shot the
deceased with whom he had just quarrelled. But on the evidence there was nothing which
could even suggest that he was so drunk that he was incapable of forming the intent to kill.
On the contrary, he loaded a gun, put spare cartridges in his pocket, searched out his enemy,
aimed the gun at close range and fired at a vital spot. The clear inference was that he had
formed the intent. Those facts may be contrasted with the Gold Coast case of Kofi Mensah v.
R261 where the accused, disappointed in love, drank illicit gin, and later in the day invited the
woman in question to go and pick mushrooms. On the way, they stopped at her uncle’s farm,
and he drank some palm wine. He was carrying a gun when he got to the place where the
mushrooms were, the drink began to affect him (according to his own evidence), and he
recollected nothing more until he found himself lying beside her, covered in blood. He made
an abortive attempt at suicide, and then surrendered himself. This evidence was not disproved
by the prosecution, and West African Court of Appeal quashed the conviction for murder and
259
Cf. R. v Herlihy [1956] St. R. Qd. 18. See R v Crozier [1965] Qd. R. 133. See D.P.P. v Majewsky [1976] 2
W.L.R. 623 in which the House of Lords held that self-induced intoxication is no defence except to offences of
specific intent.
260
(1939) 5 W.A.C.A. 66.
261
(1952) 14 W.A.C.A. 174, following R v Kotoro (1942) 8 W.A.C,A, 88 (Gold Coast case)
79

substituted one of manslaughter on the ground that the whole conduct of the accused negative
preconceived intent and that the trial judge might have come to a different conclusion had he
directed himself correctly.
Section 29(4) is not limited to offences of specific intent, but applies to any intention in the
absence of which the accused will not be guilty of an offence. 262 And if the drunkenness is
such as to negative any intent to commit any particular act at all –e.g. if the accused is
unconscious of what he is doing at the time (but is not insane) –then this is a case where he
would not be guilty of an offence, by virtue of section 24 of the Criminal Code. In fact,
section 29(4) simply stresses the point that the prosecution has to prove all the elements of
the offence, and that wherever it must prove the state of mind of the accused himself (e.g.
subjective intention, foresight, or knowledge), it will fail if the evidence, whether it be
evidence of intoxication or not, disproves its contentions. Thus, for instance, in a crime
requiring proof of knowledge –knowingly receiving goods obtained by a felony (Code Code
section 427) –intoxication rendering the receiver incapable of knowing what he was receiving
would negative his mental element required by law, even though section 29 does not provide
for such a case.263 Nor would the onus of proof be on the accused because he is not raising a
defence of intoxication but merely introducing evidence that the mental element of the
offence has not been proved. The rule has been well expressed by the East African Court of
Appeal:
“It is of course correct that if the accused seeks to set up a defence of insanity by reason of
intoxication, the burden of establishing that the defence rests upon him in that he must at least
demonstrate the probability of what he seeks to prove. But if the plea is merely that the
262
Cf. [1920] A.C. 479 at 504.
263
Nor would a drunken man be guilty of a crime of recklessness if his drunkenness prevented him from
foreseeing the probable consequences of his acts.
80

accused was by reason of intoxication incapable of forming the specific intention required to
constitute the offence charged, it is misdirection if the trial court lays the onus of establishing
this upon the accused.”264
Two qualifying points should however be made. Firstly, once the prosecution has proven the
requisite intention, then it is no argument for the defence that the accused would not have
formed the intention if he had been sober. It will make no difference if, for instance, the
accused’s drunkenness make him more readily give way to some violent passion.265 The
second point to be made is that where the unlawful intent, foresight, or knowledge, is formed
and then the accused gets so drunk that in performing the forbidden act he no longer has the
requisite mental element, then the prosecution may succeed (unless of course the drunkenness
amounts to insanity, temporary or otherwise). In Kofi Mensah v. R266 the Court of Appeal
would have upheld the conviction for murder if there had been evidence of a preconceived
intent to kill. In a recent House of Lords judgement, Attorney-General for N. Ireland v.
Gallagher, Lord Denning observed of such a case that:
“The wickedness of his mind before he got drunk is enough to condemn him, coupled with
the act which he intended to do and did do.”267
If this is correct law, then it seems to constitute an exception to the general principle that the
intent must, in point of time, accompany the act.
264
Cheminingwa v R (1956) 23 E.A.C.A. 451. See also Malungu v R. [1959] E.A. 797; Dearnley v R. [1947]
St.R.Qd. 51; R v Nicholson [1956] St.R.Qd. 520; Thomas v R. [1960] 102 C.L.R. 584 (High Court of Australia);
and Broadhurst v R [1964] 1 All E.R. 111 at 123 (P.C.) on s.35(4) of the Malta Criminal Code, identical to our
s.29(4).
265
Beard v D.P.P. [1920] A.C. 479 at p. 502.
266
(1952) 14 W.A.C.A. 174.
267
[1963] A.C. 349 at 382. It would have been otherwise if having formed the intent, he then discarded it before
getting drunk.
81

3.2.5 INTOXICATION IN CRIMES NOT REQUIRING PROOF OF A
SUBSTANTIVE MENTAL ELEMENT
So far it has been concluded that intoxication does not have an adverse effect on the liability
of an accused –whenever the law requires proof of a subjective mental state. But where the
law imposes objective liability, then the accused will suffer by reason of his drunkenness –the
theory being that in certain crimes the accused drinks at his peril. The liability may be strict,
e.g. where section 19(1) of the Road Traffic Act creates the offence of driving, attempting to
drive, or being in charge of a vehicle on the highway under the influence of drink so as to be
incapable of properly controlling it. And in any situation where the test is a test of
reasonableness then the standard will be the standard of the reasonable sober man. The fact
that drunkenness made a man more negligent or more mistaken than he otherwise would have
been is irrelevant. And the same rule appears to apply in a plea of provocation.268 In all those
cases of killing where it is held that the man was so drunk that he had no intent to kill, he may
yet be convicted of manslaughter for killing negligently and it is no excuse for him that he
would not have been so careless had he been sober. In such cases drunkenness works as an
adverse factor against the accused.
3.2.6 THE DEFENCE OF INTOXICATION IN SOUTH AFRICA
The question whether intoxication should constitute an absolute defence to a criminal charge
is one that was, and still is, very controversial in modern South African legal policy. A
juridically pure approach within the existing framework of criminal law principles requires
that intoxication could in the proper factual circumstances constitute an absolute defence to a
criminal charge. Whether such a logical legal outcome is satisfactory from a social policy
point of view is, however, not just an academic legal question.
268
See Chutuwa v R (1954) 14 W.A.C.A 590, but compare R v Owarey (1939) 5 W.A.C.A. 66.
82

The very existence of a legal principle is dependent on whether the needs of the community
are effectively served by the particular legal principle. Section 1 (1) of the Criminal Law
Amendment Act 1 of 1988 is in fact an example of where the interests of the public has taken
precedence over a purely academically correct approach.
Certain legal writers are severely critical of the offence referred to as statutory intoxication
which was created by section 1 (1). An example is De Wet who is not in favour of any type
of statutory offence with regard to intoxication and regards this type of offence as a direct
application of the versari in re illicita doctrine269.
In S v. Chretien270 the Appellate Division in fact endorsed this view of De Wet, but the public
outcry forced or persuaded the legislature to intervene. The legislature allowed policy
considerations to protect the interests of the community, thereby sacrificing basic principles
of criminal law. It was deemed unacceptable that a person who has taken so much
intoxicating liquor should be allowed to escape liability for his actions, while a sober person,
in his full senses, would indeed be held liable for the same actions.
The socially unacceptable phenomenon of drinking oneself into a stupor would, in fact, be to
the advantage of the perpetrator.
The decision in Chretien was criticised from various quarters. Less than three years after the
decision, Bophuthatswana created a statutory offence with the aim of countering the
abovementioned decision.271 In 1982 the Minister of Justice of South Africa gave the South
African Law Commission instructions to research this particular matter. The offence created
269
De Wet and Swanepoel Strafreg 4th ed by De Wet JC (1985) 121.
270
1981 (1) SA 1097 (A).
271
See s 1 of the Criminal Law Amendment Act 14 of 1984 of Bophuthaswana which reads as follows:
“1(1) Any person who, after having intentionally or negligently consumed intoxicating liquor or any drug
having a narcotic effect, performs or omits to perform an act of which the performance or omission or result
would have rendered him liable in respect of any offence for which intent is the requisite form of mens rea, had
it not been for the fact that he was under the influence of alcohol or such drug at the relevant time, shall be
guilty of an offence…”
83

by section 1(1), commonly referred to as statutory intoxication, is a result of the Law
Commission’s research, and was widely welcomed from nearly all quarters of society.
Although the provisions of section 1(1) were widely welcomed, it very soon became apparent
that the legislature had created an imperfect statutory crime that covered only certain aspects
of criminal liability which may be effected by intoxication. It appears that Parliament’s views
with regard to the wording of the section were given preference over that of legal academics
and three years of research by the Law Commission.
The whole purpose of the Act was to accommodate the sense of justice of society in respect
of the judicial treatment of intoxicated persons for their actions which were committed while
they were so intoxicated.272 The legislature rightly deviated from a pure jurisprudential
approach but regrettably provided a section which according to certain legal writers is
unworkable, illogical and inconsistent.273 With this section the legislature has attempted, but
only with a reasonable amount of success, to prevent intoxicated persons from escaping
liability, which is obviously an improvement of the situation after Chretien. 274 While there is
room for improvement, the existence of section 1(1) cannot and should not be questioned.
3.2.7 THE PROVISION OF SECTION 1(1) OF THE CRIMINAL LAW
AMENDMENT ACT 1 OF 1988.
The section reads as follows:
1(1): Any person who consumes or uses any substance which impairs his faculties to
appreciate the wrongfulness of his acts or to act in accordance with that appreciation, while
knowing that such substance has that effect, and who, while such faculties are thus impaired,
commits any act prohibited by law under any penalty, but is not criminally liable because his
faculties were impaired as aforesaid, shall be guilty of an offence and shall be liable on
272
A Paizes "Intoxication through the Looking Glass" 1988 SAU 777.
273
Paizes op cit (supra n 5) 777.
274
Supran 2.
84

conviction to the penalty, except the death penalty, which may be imposed in respect of the
commission of that act.
1(2): If in any prosecution for any offence it is found that the accused is not criminally liable
for the offence charged on account of the fact that his faculties referred to in subsection (1)
were impaired by the consumption or use of any substance, such accused may be found guilty
of a contravention of subsection (1), if the evidence proves the commission of such
contravention.
3.2.8 DESIRABILITY OF A STATUTORY CRIME
The harshest criticism against section 1 is the very fact that it even exists, irrespective of its
wording, and that the section amounts to a statutory form of versari275. The fact that any
deviation by the legislature from the Chretien decision would entail a departure from a
jurisprudentially pure scientific approach also evoked severe criticism from many legal
academics. Snyman does not agree with this criticism of section 1(1) and explains his opinion
with the following examples. If a person loosens the nuts of the wheels of his bicycle, he
cannot complain if he later falls as a result of a wheel coming off while he is in motion.
Snyman also uses the argument of a person who loosens his car’s brake cable. He cannot
complain if he is later involved in a collision. The same principle dictates that if a person
voluntarily starts drinking, he ought not to complain if, in his intoxicated state, he commits a
crime. A sober person has powers of resistance which enable him to overcome temptation to
commit a crime. In consuming large amounts of alcohol, a person knowingly destroys this
resistance as the person in the example who loosened his car's brake cable, and thus has no
grounds for complaining if he is held accountable for his actions.276
275
Snyman op cit (supra n 12) 216.
276
Snyman's views were quoted with approval in S v Maki 1994 2 SACR 414 (EC). Compare also the
sentiments expressed in S v Pieterson 1994 2 SACR 434 (C).
85

The legislature’s attempt to balance public policy, which requires that the law should protect
society from harmful conduct, with the ideal that the law should always ensure justice and
fairness to an individual, is understandable and desirable. It is submitted that although this
statutory offence does move into the realm of the versari rule, it is not a direct application of
it, and like all legal rules does not operate in a vacuum but in a social order with practical
needs.277
3.2.9 REQUIREMENTS FOR A CONVICTION UNDER SECTION 1(1)
Various writers, for example Paizes,278 Burchell279 and Snyman280 have expounded the
requirements for a conviction of the crime created in section 1(1). Snyman’s views were
substantially endorsed in S v. D281, so they will be explained here.
Snyman divides these requirements into two groups. The first group refers to the
circumstances surrounding the consumption of the liquor and the second group to the
circumstances surrounding the commission of the “prohibited” act.
The first group requirements are:
a) The consumption or use by X of…
b) Any substance…
c) Which impairs his faculties (as described in the section)
d) While knowing that such substance has that effect.
The second group of requirements are:
a) The commission by X of an act prohibited by the criminal law
b) While his faculties are thus impaired and
277
C R Snyman "Aanspreeklikheid vir wandade gepleeg in dronkenskap : Bophuthatswana neem die leiding
Strafregwysigingswet 14van1984 (Bophuthatswana)" 1985 SACC 70.
278
Op cit (supra n 5) 779.
279
Op cit (supra n 22) 275. See also Burchell and Milton op cit (supra n 22) 266 and Burchell and Hunt op cit
(supra n 22) 188.
280
Op cit (n 12) 217.
281
1995 2 SACR 502 (C) 513.
86

c) Who is not criminally liable for the substantive crime because his “faculties were impaired
as aforesaid”.
Both groups of requirements must be present for a conviction under section 1(1).282
The trial court in S v. Mphungatje283 asked the court of review to lay down specific
guidelines for the application of section 1(1). The reviewing court however, decided that this
was not desirable and deemed it more appropriate that case law should be afforded the
opportunity to develop on the basis of the solution of particular problems. In S v. Lange284 the
court did in fact set out the requirements for a conviction. They are:
a) The consumption or use of an intoxicating substance by the accused;
b) The impairment of his faculties;
c) The accused’s knowledge of its effect;
d) The commission of an act prohibited by law whilst his faculties were so impaired; and
e) That the accused is not criminally liable of any substantive offence because his faculties
were so impaired.
The court in S v. Hutchinson285 also set out a list of requirements for conviction which
substantially coincided with the views of Snyman286 and the court in the Lange287 case. It thus
appears that there are not problems with regard to the interpretation of the particular statute
but merely, as will later become clear, to its application in practice.
282
Snyman op cit (n 12) 217.
283
1989 (4) SA 139 (O)
284
1991 (1) SA 307 (W).
285
1990 (1) SASV 149 (D).
286
Op cit (n 12) 217.
287
Supra (n 49).
87

3.2.10 ELEMENTS OF THE OFFENCE
(a) SUBSTANCE
To briefly analyse subsection (1), one would have to begin with a definition of “substance”.
A “substance” may be defined as any particular kind of matter.288 When trying to determine
which substances the legislature was referring to, one would have to look at the result or
effect that a substance has on a person. According to the wording of section 1(1) any
substance which impairs a person’s faculties to appreciate the wrongfulness of his acts or to
act in accordance with such appreciation, would qualify as a substance to which the
legislature was referring to when creating section 1. In practice this would imply alcoholic
drinks, various drugs and or various forms of medication. The nature of the substance or its
specific effect is not what is important. The drug may even be a suppressant with a calming
effect. What is important, however, is that the substance must cause the person to be
incapable of appreciating the wrongfulness of his actions or to act in accordance with such
appreciation. The person must “consume or use” such substance. “Consume” may be defined
as “eat or drink; use up; get to the end of”.289 “Use” may be defined as: “using or being
used”.290 The substance may thus be taken in any manner, whether it is by mouth or by
injection or by inhalation.
b) CRIMINAL CAPACITY
The substance must affect the criminal capacity of the person consuming it. Criminal capacity
consists of cognitive and conative legs, both being psychological components. A person’s
power to differentiate and or his powers of resistance may be affected by the consumption of
a substance, and if any one of the two is affected, the person does not have criminal capacity.
For many years, there was, besides mental illness and youth, no general defence of criminal
288
A S Hornsby Oxford Advanced Dictionary 20th ed (1982) 862.
289
Hornsby op cit (n 53) 183.
290
Hornsby op cit (n 53) 947.
88

incapacity in South African law. However, since the decisions in S v. Arnold291, S v.
Campher292 and S v. Laubscher293 there is now a defence which is described by the courts as
“non-pathological criminal incapacity”. This defence is broad enough to cover cases in which
criminal capacity is excluded by intoxication.294 Various authorities have made it clear that
this defence is one of law and not one of psychology.295 Rumpff C J ruled in the Chretien
case that criminal capacity may be lacking where a person is so drunk that he cannot
appreciate what he is doing, or cannot appreciate the wrongfulness of his act or that his
inhibitions have substantially crumbled.296 Section 1(1) statutorily confirms the existence of
criminal incapacity as a result of intoxication, as it is a requirement for a conviction of the
crime created in section 1(1). The wording of the test for criminal liability is included in the
definition of the crime in section 1(1), and thus forms an integral part of the requirements for
a conviction of the offence created by section 1(1).
A more difficult problem is how the court will actually decide whether a person lacks
criminal capacity due to non-pathological factors such as intoxication. Rumpff C J stated in
Chretien that this was not a finding that should easily be made by a court. There must be
clear evidence of the fact and a difference should be drawn between an ordinary inebriated
person and one who is so drunk that he lacks criminal capacity.297 The accused must merely
lay a basis for the defence and then the state will have to prove the person’s criminal
capacity.298
No psychiatric evidence is necessary for this defence to succeed. 299 Section 1(1) requires the
court to find that the accused lacked criminal capacity and in S v. Kensley300 Van den Heever
291
1985 (3) SA 256 (C).
292
1987 (1) SA 940 (A).
293
1988 (1) SA 172 (A).
294
CR Snvman "Die verweer van nie-patalogiese ontoerekeningsvatbaarheid in die strafreg" July 1989 TRW 1.
295
S v Gesualdo 1997 (2) SACR 68 (W).
296
Chretien supra (n 2) 1106 F.
297
Chretien supra (n 2) 1106F - G. See also S v Pienaar 1990 (2) SACR 18 (T).
298
S v Wiid 1990 (1) SACR 560 (A); S v Campher supra (n 57) 966 H-1.
299
Snyman op cit (supran 12) 174.
89

JA suggests an objective test in that an accused’s lack of control should be tested against the
assumed capacity of the rest of the members of society to control themselves in such
situations. An objective test may, however, not be the most appropriate way to test criminal
capacity, which is a subjective enquiry.301 The mere testimony of the accused may be
sufficient to enable the court to make the finding that a person lacks criminal capacity.302
c) KNOWLEDGE
The accused should know that the substance will have the effect of impairing his faculties.
From the wording of the statute it appears as if direct knowledge is required, but it is
submitted that if a person foresees the possibility of the substance affecting his faculties and
reconciles himself with this possibility, it will be sufficient for a conviction under section
1(1). With well-known narcotic substances such as alcohol or cannabis, the court’s finding
should not be difficult, but with less well-known substances, such as medication prescribed
by a medical doctor, the statute requires that the court must be convinced that the person had
knowledge of the effect of the substance. It is submitted that the state need not prove that the
accused specifically knew that the specific substance would affect him specifically. A general
knowledge or understanding that the intake of the substance might impair his faculties is
sufficient.303
d) ACT
The accused has to act and the act should constitute the act required for a conviction of any
crime besides the fact that the perpetrator lacked criminal responsibility. Section 1(1) cannot
exist independently of the substantive or original crime with which the accused was charged.
Snyman refers to section 1(1) as a parasite which cannot exist without the crime of which the
accused would have been found guilty if his faculties were not impaired by a particular
300
1995 (1) SACR 646 (A).
301
N Boister "General Principles of Liability" 1995 SA.CJ 368.
302
Kensley supra (n 65).
303
Lange supra (n 49). See also Burchell and Hunt op cit (supra n 22) 191.
90

substance.304 If a person would have been entitled to an acquittal on the “original” crime
because he acted in private defence or in an emergency situation, he is also entitled to be
acquitted of section 1(1) as the requirements for a conviction on the “original” charge would
have not been met.305 The accused’s faculties must be impaired at the time when he commits
the prohibited act.306 The section does not refer directly to omissions as its former
Bophuthatswana counterpart but it may be argued that as in all other substantive crimes the
“act” refers to a physical act or an omission. However, dealing with a statutory crime one
would have expected the legislature to specifically include omissions within the scope of the
conduct it wishes to criminalise, if it had been its intention to do so. It is thus not clear
whether omissions will be included under the scope of the section or not.
3.2.11 CREATION OF A SEPARATE CRIME
The crime of which the accused is found guilty is of a contravention of section 1(1). This is a
separate and independent crime to the “original” charge put to the accused. The legislature
tried to avoid applying the versari in re illicita doctrine by creating a separate statutory
offence.
The courts have not always been consistent in treating section 1(1) as a separate offence. In S
v. Oliphant307 the court continually referred to the eintlike or werklike offence which the
accused committed. Although mere mention of the offence which was initially put to the
accused cannot be criticised, there is in fact no werklike misdryf of which the accused is
convicted, except the contravention of section 1(1).
This view is confirmed in S v. Pienaar308 and S v. Riddels309. In S v. Oliphant310 the court
suspended the sentence for a conviction of section 1(1) on condition that the accused was not
304
Snyman op cit (n 12) 220.
305
S v Bazzard 1992 (1) SACR 302 (NC).
306
S v Mbele 1991 (1) SA 307 (W).
307
1989 (4) SA. 169 (0)
308
1990 (2) SASV 18 (T).
91

again convicted of the charge with which he was initially charged. This is in fact not
recognising the independence of section 1(1) as an independent and separate offence.311 In
the Riddels312 case it was clearly stated that if the accused was found not guilty on the “main”
charge, any suspended sentence should only be on condition that the accused should not be
found guilty of contravening section 1(1) for a particular period again. More recent cases
have, however, contradicted this approach.313 In these cases it was decided that there should
be a reference to an “original” charge in the conditions of a suspended sentence imposed after
a conviction of section 1(1). It is submitted that this is in fact the correct approach and it does
not threaten the existence of section 1(1) as a separate and independent crime. It is in the
interests of an accused that the conditions of suspension of a sentence be not too wide. There
must also be a causal connection between the prohibited act performed by the accused and
the prohibited act that could bring into operation the suspended sentence.
3.2.12 VOLUNTARY/INVOLUNTARY INTOXICATION
The wording of section 1(1) is not clear in all respects. The legislature did not state whether
section 1(1) should be applied only to cases of voluntary intoxication or only cases of
involuntary intoxication or both. The application of the section is thus in the discretion of the
courts. It is submitted, however, that it was the intention of the legislature to limit the
application of section 1(1) to cases where the accused voluntarily consumed the substance.314
According to the common law, an involuntarily intoxicated accused is dealt with in terms of
the general principles of the criminal law.315 Thus, if an accused who involuntarily became
309
1991 (2) SASV 529 (0).
310
Supra (n 72).
311
Pienaar supra (n 62); Riddels supra (n 74).
312
Supra (n 74).
313
Maki supra (n 41); Pieterson supra (n 41); Q supra (n 46).
314
Snyman op cit (n 12) 217; Paizes op cit (supra n 5) 782. Burchell and Hunt op cit (supra n 22) 189.
315
S v Hartvani 1980 (3) SA 613 (T). See also R v Innes Grant supra (n 13).
92

intoxicated cannot act, has no criminal capacity or no mens rea, he will escape liability. There
is no indication that the legislature intended to change this position.
In section 1(1) the legislature uses the phrase “while knowing that such substance has that
effect.” This could be interpreted to mean that the legislature did not intend to include cases
of involuntary intoxication. Knowledge of the effect of the intoxicating substance is made the
central concern.316 It would also not be in the interests of justice that the position of an
involuntarily intoxicated wrongdoer be worsened by a conviction under section 1(1). If a
person was ignorant of the fact that he was consuming a substance, it would seem harsh to
treat him in the same manner as a wild drunkard on a drinking spree. Ignorance is, however,
not the only criterion for voluntariness. Force or duress may be the reason for the
consumption or use of an intoxicating substance.
It is a general rule that only voluntary acts attract criminal liability317. Where the
consumption of a substance is a specific element of the offence, one could only attach blame
to a person who voluntarily consumed or used the substance. If a person knows a particular
substance will impair his faculties, but does not know that he is consuming the substance or is
forced to take the substance, he should not be convicted of contravening section 1(1).
3.2.13 CONSEQUENCE CRIMES
Most crimes, for example assault and rape, require a specific act. Assault requires the
application or threat of force to another, and rape an act of sexual intercourse. Other crimes,
however, such as murder or culpable homicide, are centred on the consequences of an act.
Here the crux is not whether the act of a person is prohibited or unlawful, but whether an act
brought about an unlawful consequence. This consequence is usually the result of an
316
Paizes op cit (supran 5) 783.
317
S v Mkize 1959 (2) SA 260 (N); S v Ahmed 1959 (3) SA 776 (W); S v Goliath 1972 (3) SA 1 (A); S v Ncube
1978 (1) SA 1178 (R).
93

unlawful act, but this is not always the case. Using the situation sketched by Paizes.318 If
hypothetically X puts liquid weed killer in an empty bottle, this is no unlawful act. Where this
act leads to the death of Y and it was reasonably foreseeable that a person could mistake the
weed killer for cool drink, X will be guilty of culpable homicide. If X were intoxicated at the
time of putting the weed killer into the bottle, to the degree that he lacked criminal capacity,
he could not be found guilty of culpable homicide, nor could he be found guilty of
contravening section 1(1), because he did not perform any act prohibited by law. This does
not seem to be in accordance with the wishes or demands of the community, because, once
again, an intoxicated person would be in a better position than a sober one who committed or
performed the same act.
One can only assume that it was also not the intention of the legislature, although this is not
apparent from the wording of section 1(1).
3.2.14 INTOXICATION EXCLUDING CAPACITY
The wording of section 1(1) specifically refers to an accused’s lack of criminal capacity. The
section refers to the ability of a person to appreciate the wrongfulness of his acts or to act in
accordance with that appreciation. The exact wording used by the legislature comprises both
the cognitive and conative components of the test to determine criminal capacity. Whether a
person may be convicted of contravening section 1(1) if the impairment of his faculties
results not in total criminal incapacity, but only in the absence of intention or the ability to
perform a voluntary act is open to interpretation and debate. With regard to intoxication that
excludes criminal capacity, the position is very clear. The absence of criminal capacity is an
element of the offence created by section 1(1).
318
Op cit (supra n 5) 787.
94

The Chretien319 case clearly states that intoxication may be an absolute defence on three
possible grounds, which are the lack of criminal capacity, exclusion of intention or the
prevention of performing a voluntary act. Section 1(1) will undoubtedly apply when the
consumption or use of a substance results in a lack of criminal capacity. It will, however, also
have to be proven that the lack of capacity was directly a result of the intoxication.320
3.2.15 INTOXICATION EXCLUDING INTENTION
It may be assumed that a person cannot be found guilty of contravening section 1(1) where
the consumption or use of the substance leads to a lack of intention.321
If the legislature wanted to include such cases, it could and should have specifically done so.
The use of the word “faculties” at various points in subsections (1) and (2) further reinforces
this assumption, because “faculties” are directly related to a person’s criminal capacity. The
subjective knowledge required for intent is not even hinted at in the legislation. If this
interpretation, which would greatly reduce the application of section 1(1), is accepted, the
whole process of the creation of a statutory offence would, to a large degree, have been futile.
An example may be the Chretien case, the very reason for the existence of section 1(1). In
this case, the accused did have criminal capacity, but was acquitted of attempted murder
because he lacked the intention to kill. The accused will thus also escape liability of a
conviction of the section 1(1) offence because his intoxication simply led to a lack of
intention and not to a lack of criminal capacity. The cure to the problem would not solve the
problem for which it was created. The whole exercise of Parliament would have been futile,
unless a court could specifically find that the intoxication excluded the accused’s criminal
capacity.
319
Supra (n2).
320
Burchell and Hunt op cit (supra n 22) 191.
321
Snyman op cit (n 12) 218. See also Burchell and Milton op cit (supra n 22) 267; Burchell and Hunt op cit
(supra n 22) 189.
95

It should be mentioned that when one ventures into the field of interpretation of statutes, the
intention of the legislature has to be taken into account by the court. The intention of the
legislature in this case was to comply with the boni mores of society. The legislature deviated
from a juridically correct approach to satisfy the demands of the community. One must
assume that the legislature erred in not including a lack of intention under the scope of
section 1(1).
It is a general rule of interpretation of statutes that when a statute creates any crime, a strict
interpretation of the statute is required. Prejudice to an accused can be great, so interpretation
should always be in favour of the accused in grey areas. Looking at the wording of section
1(1) as adopted by Parliament, intoxication excluding intention is not within the scope of
section 1(1) and in facts similar to the Chretien case the accused will still escape all liability.
3.2.16 INTOXICATION EXCLUDING A VOLUNTARY ACT
Although the same argument submitted with regard to intoxication excluding intention as
discussed above may be brought to an exclusion of the ability to act, the problem in this
instance is rather more self-explanatory. The degree of intoxication required for a state of
automatism is surely a far more intense form than the degree of intoxication where a person
no longer has criminal capacity. It can thus be assumed that the legislature intended to cover
this scenario and would not want to exclude the more serious form of intoxication.322
322
Burchell and Milton op cit (supra n 22) 267; Burchell and Hunt op cit (supra n 22) 190.
96

CHAPTER 4
THE DEFENCE OF INFANCY AND INSANITY
4.1 THE INFANCY DEFENCE
4.1.1 DEFENCE OF INFANCY IN NIGERIA
No problem better illustrates the necessary arbitrariness of the legal concept of criminal
responsibility than the problem of when to hold a child liable for an offence, because the
solution is simply in arithmetical terms. People are divided into three age-groups323:
(a) A child under the age of seven is not criminally liable for any act or omission.
(b) A child who is seven or over but under the age of twelve is not criminally responsible
for an act or omission, unless it is proved that at the time of doing the act or making
the omission he had the capacity to know that he ought not to do the act or make the
omission.
(c) At the age of 12 a child becomes fully responsible according to the criminal law.
A fourth category should also be introduced. Under the 1946 Children and Young Persons
Act324, a “child” is described in section in section 2 as a person under 14, and a “young
person” as 14 years of age but under 17, and all young people falling into these groups are
subject to the special procedure in Juvenile Courts.
323
C.C. s. 30. Penal Code s. 50 is to the same effect; Gledhill, pp. 82-83.
324
Cap. 32, 1958 Laws (modelled on the English Act of the same name passed in 1933). The act, passed for
Lagos, was extended to the West and the East by Order in Council. No. 22 of 1946. In the Northern Region
there is a separate Children and Persons Law (1958) in similar terms to the Southern Act, except that the
Northern Law adds stringent rules against juvenile participations in politics.
97

As far as that question of proving age is concerned, if it appears to a court that an offender
was a child or a young person at the time of committing an offence, he shall be presumed so,
unless the contrary is proven.325
4.1.2 UNDER SEVEN
It should not be thought, because a child under seven cannot be guilty of an offence, that he is
not amenable to action by the authorities. Part V. of the Children and Young Persons Act
provides for the “care and protection” of any child. According to section 26 Local Authority,
Local Government Council, police officer or authorised officer has power to bring any child
or young person before a juvenile court if there is reasonable ground for believing that for
any of a variety of reasons he is need of care and protection. A child may be an orphan, or
have been deserted by his relatives; his parent or guardian may not be exercising proper
control of him, or they may be neglecting or ill-treating him; he may be destitute, with his
parents in prison; he may be in the care of criminal or drunken parents who are by reason of
that unfit to look after him; he may be found wandering or begging for alms; or he may be
“otherwise exposed to moral danger.” In none of these cases is there any need to prove that
the child has committed an offence. If the court is satisfied that the facts are as alleged, it may
make any one of number of orders. It may order the parents to guarantee to exercise proper
care of a “fit person”; it may place the child on probation; or, most drastic of all, it may make
a corrective order and commit the child to an “approved institution”. The essence of this
jurisdiction is that a welfare jurisdiction which is meant to be exercised in the interests of the
child himself.
325
Criminal Procedure Act, s. 209. At the other end of the age scale, senility per se is no defence, though it may
be evidence of insanity.
98

4.1.3 SEVEN TO ELEVEN
If a child of seven or over and under twelve is charged with an offence there is a legal
presumption that he is incapable of committing it which is rebuttable on proof that he had
capacity to know that he ought not to do what he did. The only exception is that the there is
an unarguable presumption that a boy under twelve is capable of having carnal knowledge.326
In English law, although the general legal presumption is the same, in practice many courts
start out with the assumption that a child had the capacity, for it is very difficult to prove it.
The test of capacity is clearly subjective –did the child himself appreciate that he was doing
wrong? But the meaning of “ought not” is not elucidated. Is it enough that he knows that his
conduct is forbidden by law, or must he also realize its inherent wickedness? English law
inclines to the latter view that he must have known that his act was “gravely wrong”. 327 But
this test may not always be applicable. A child brought up in an environment where for
example, pretty pilfering or something even more grievous may be the norm, will think that
conduct to be right even though realising that the law forbids it. Nevertheless, society may
wish to take steps to take him out of such environment in order that the child may not grow
up as a social problem. In England the Ingleby Committee criticised the knowledge of right
and wrong test.
“This conception is singularly difficult to apply when dealing with children, because we have
always to think in terms of the child in his environment, including the climate of opinion in
the family and group, as well as the physical surroundings. Differing environment may lead
326
In English law and presumably under the Code, he may be convicted of the lesser offence of indecent assault
–R v Waite [1892] 2 Q.B. 600; R v Williams[1893] 1 Q.B. 320. See also Criminal Procedure Act, s. 175.
327
R v Gorrie (1918) 83 J.P. 136.
99

to the wide variations in the age at which a child comes to this knowledge so that any rule
depending on a fixed age cannot have a sure foundation.”328
At any rate, with the increasing movement away from the concept of responsibility towards
the welfare jurisdiction, it is becoming decreasingly important, with regard to the lower age
groups, whether the child has committed the offence or not. If he has not committed an
offence, the court may still feel that steps should be taken to ensure his care and protection. If
he has committed an offence, the court’s decision must be aimed at the child’s welfare –
“Before deciding how to deal with him, the court shall obtain such information as to his
general conduct, home surroundings, school record, and medical history as may enable it to
deal with the case in the best interest of the child or young person…”329The courts have
power to remand for the purposes of inquiry or observation.330
There has recently in England been much argument as to the appropriate minimum age of
criminal responsibility. Seven was the old common law rule. In 1933, in England the limit
was raised to eight. The Ingleby Committee proposed a further raise to 12, with a possibility
of its becoming 13 or 14 at some further date.331 The difference created by this proposal is
simply that although society may continue to deal with a child under the age limit, it does not
apply criminal procedure. As the Ingleby Committee admitted, “The problem of age of
criminal responsibility thus turns out to be a matter of the best way of expressing the
jurisdiction of the courts.”332 Raising the age limit does not solve the problem of what is the
best means of dealing with the child. Arguments against raising the age limit are based on the
328
Report of the Committee on Children and Young Persons Act (1960 Cmnd. 1191) p. 31, para. 81.
329
1946 Children and Young Person’s Act, s. 8(7)
330
Ibid. s. 8(8).
331
In the legislation which implemented the committee’s recommendations, the age limit was set at 10 –s. 16(1)
of 1963 Children and Young Persons Act.
332
P. 35, para. 93.
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contentions that the best way of educating people to be reasonable is to treat them as if they
were responsible, and that there is a danger in the welfare jurisdiction that it may constitute a
threat to the liberty of the individual. On the other hand, the raising of the age (to 17 or 18 in
Scandinavian countries) achieves the desirable object of removing the stigma of criminality
from young people.
4.1.4 THE JUVENILE COURT
Until the age of 17, the children and young persons are dealt with in special juvenile
courts.333 These are held in rooms different from the ordinary court room. The public are not
generally admitted. There is no publication of the identity of the child or young person. The
words “conviction” and “sentence” are not to be used.334 The courts, which should be staffed
by people who have experience in dealing with children, have at their disposal a wide range
of methods,335 but no child shall be ordered to be imprisoned; nor shall any young person, if
he can be suitably with in any less serious way. Although no sentience of death can be
pronounced against anyone under 17336 and it was held in R v. Bangaza337that it may be so
pronounced against one who has reached the age of a 17 at the time of conviction, even
though he was well under the age when he committed the offence. This anomaly has now
been rectified in most states.338
333
See 1946 Children and Young Persons Act, s.6.
334
Ibid. s.16.
335
Ibid. s.14.
336
Ibid. s.12. Also C.C. s.319(2); Criminal Procedure Act, s. 368(3).
337
(1960) F.S.C 1. See Uwa v State [1965] 1 All A.L.R. 356.
338
See, e.g. Criminal Justice (Misc. Provisions) Decree, No. 84 of 1966 (Lagos State); Criminal Procedure Law
(Amendment) Edict, No.22 of 1972 (E.C.S. now Anambra and Imo Sates); See also s.272(1) Criminal Procedure
Code (North).
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4.1.5 THE DEFENCE OF INFANCY IN AMERICA
4.1.6 THE CAPACITY ISSUE: CHILDREN UNDER SEVEN
The particular structure of the common law infancy defence –an absolute bar to criminal
prosecution for children under seven coupled with presumptive incapacity for children seven
through fourteen –is a product of concrete historical factors rooted in the development of the
common law. One could structure the infancy defence in a variety of ways that would serve
its purpose of screening non-culpable youth out of the juvenile justice process.339 For
example, one could imagine an infancy defence in which capacity could be assumed on the
part of all juvenile offenders unless a prima facie case is made otherwise by the accused.
This construction of the infancy defence, sans presumption, would closely parallel other
affirmative defences.340It would, in essence, remove the barrier to delinquency jurisdiction
for children under seven and put the burden of proof regarding infancy on the accused aged
seven to fourteen. Such a construction of the infancy defence, however, ignores what is
known as unique about a child’s capacity to be culpable, and would undercut the screening
function of the infancy defence.
339
California's infancy defence provides an interesting variation on the common law defence. In essence, all
children under fourteen are presumed incapable in the absence of clear proof of knowledge of wrongfulness. See
supra notes 214-22 and accompanying text. This approach provides no minimal chronological baseline barring
juvenile (or adult) justice proceedings. Exposure of children under seven to adult and juvenile justice
proceedings suffers from similar infirmities to those posed by structuring infancy as a typical affirmative
defence. See infra notes 231-33 and accompanying text.
Another possible approach to infancy concerns would reject use of age-based presumptions as a proxy for
capacity and instead rely on individualized determinations. This approach has been rejected by the courts. See,
e.g., State v. Jamison, 23 Wash. App. 454, 597 P.2d 424 (1979); see also State v. Dillon, 93 Idaho 698, 471
P.2d 553 (1970).
340
In affirmative defences other than infancy, the burden of producing evidence of an exculpatory nature is
generally on the defendant. In essence, normative behaviour is presumed (i.e., the accused is sane, not
intoxicated, not compelled to commit the crime, etc.) and exculpatory behaviour must be raised by the
defendant. Common law infancy, on the other hand, assumes incapacity and puts the burden of production on
the state. For a discussion of affirmative defences in relation to burden of production and persuasion, see W.
LAFAVE & A. SCOTT, supra note 8, at 46-54. See generally Jeffries & Stephan, Defences, Presumptions, and
Burden of Proof in the Criminal Law, 88 YALE L.J. 1325 (1979).
102

A presumption is a standardized procedure by which it is recognized that certain oft-recurring
fact groupings call for uniform treatment whenever they occur.341 Uniform treatment is
justified on the theory that proof of the existence of the underlying facts generally establishes
the conclusions sought to be established. Presumptions, like the presumption of innocence,
may also incorporate important political and societal values.
The infancy defence, in barring proceedings against children under seven, embodies a
recognition that young children are so different from the rest of us that they are presumed to
be incapable of complying with the criminal law. The presumption that children less than
seven years old lack capacity may be said to assume the status of an irrebuttable presumption,
in part because of the infancy defence’s role in maintaining the general tilt of the criminal
justice screening process toward protecting the innocent.
It resolves what little ambiguity exists regarding the child’s capacity in favour of innocence.
The irrebuttable presumption is rooted as well in a sense of fairness expressed in terms of
proportionality. The spectre of bringing the vast criminal authority of the state to bear on the
very young presents an unappealing picture of the uses of power.342
4.1.7 REBUTTABLE INCAPACITY: THE BURDENS OF PROOF AND
PERSUASION
The burdens of proof and persuasion regarding the rebuttable presumption of infancy for
children seven to fourteen have traditionally been placed on the state in adult criminal
proceedings343as well as in cases imposing the infancy requirement in juvenile justice
341
See C. MCCORMICK, EVIDENCE § 803 (1972).
342
See, e.g., In re Andrew M., 91 Misc. 2d 813, 814, 398 N.Y.S.2d 824, 825 (1977).
343
See R. PERKINS & R. BOYCE, supra note 8, at 938. It has been held that this strength of the presumption of
incapacity is extremely strong at seven but diminishes gradually over the years. See supra note 22. This tracks
basic assumptions underlying child development. See supra note 170. The decline in the strength of the
presumption has been said to mean that the quantum of proof necessary to overcome the presumption declines
as the child grows older. See Adams v. State, 8 Md. App. 684, 689, 262 A.2d 69, 72 (1970). In actuality, the
major impact of the presumption is not on the quantum of proof necessary to show capacity. The quantum of
proof required is established by measure of the burden of persuasion.
Rather, the key impact of the presumption is to put the risk of non-production on the state.
103

courts.344 The practical effects of putting this burden on the state are clear. Where the accused
has raised the capacity issue for consideration and the state produces no evidence as to the
existence of capacity to be culpable, the case must be dismissed.345
The practice of putting the burden of proof on the state where capacity is at issue is
illuminated when infancy is compared with other affirmative defences that put the burden of
proof on the accused, such as insanity, automatism, compulsion, and self-defence. Experience
shows that most persons who commit crimes are sane, conscious, not compelled to commit
the crime, and not acting in self-defence.346It makes sense that if any of these unusual
features are to be injected into a case, the accused should do so. These defences involve
information easily accessible to the accused. In light of this, to require the state to
affirmatively disprove each defence in the absence of evidence that a prima facie case
supporting the defence will be raised would be wasteful.
These traditional justifications for putting the burden of proof on the accused where
affirmative defences are raised are inapposite when applied to the infancy defence. Lack of
capacity is not unusual among pre-adolescents. Evidence as to capacity is not inaccessible.347
Finally, necessary issue narrowing is accomplished by requiring that the accused raise the
infancy defence for consideration.
Putting the burden of persuasion on the state is both compelled by logic and sound policy.
One could imagine an infancy defence in which, once the state had met its burden of proof
and rebutted the presumption of incapacity, the burden of persuasion would then shift to the
juvenile. This posture would give insufficient weight to important criminal and juvenile
344
See, e.g., Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978). In some jurisdictions, the
infancy defence’s burden of production and persuasion (and standard of persuasion) is codified in statute. See,
e.g., In re Gladys R., 1 Cal. 3d at 867, 464 P.2d at 136, 83 Cal. Rptr. 815 (1970) (construing infancy statute to
require prosecutor to prove capacity by “clear proof”).
345
For a discussion of the shifting of the risk of non-production, see Jeffries & Stephan, supra note 231, at 1332.
346
W. LAFAVE & A. SCOTT, supra note 8, at 47. For justifications for putting the burden of production on the
accused when asserting an affirmative action defence, see id. at 44-51.
347
See infra notes 251-63 and accompanying text.
104

justice concerns. The existence of the infancy defence goes to the question of guilt or
innocence. It is basic to American criminal law that in matters bearing on guilt the state has
the burden of persuasion. While limited exceptions to this policy may be found in some
jurisdictions’ approaches to affirmative defences,348 the infancy defence is clearly
distinguishable. In those jurisdictions where the defendant bears the burden of persuasion as
to an affirmative defence, he also carries the burden of proof. That the burden of proof is
placed on the state in the infancy determination signals recognition that ultimately it is the
state’s obligation to prove lack of capacity due to immaturity. The infancy defence plays a
unique role in ensuring that extension of juvenile court control over a young deviant child is
legitimate. This function would be undercut by putting the burden of persuasion on the child.
Moreover, limits on coercive government authority and respect for familial control demand
no less than a requirement that the state affirmatively show that a child has capacity to
commit a crime before a criminal sanction is imposed.
4.1.8 STANDARD OF PROOF
The question of the appropriate standard or measure of proof required for the state to
demonstrate capacity yields no uniform answer among jurisdictions considering the issue. In
cases where the infancy defence has been raised in adult criminal proceedings, the standard
utilized has ranged from beyond a reasonable doubt349 to clear and convincing evidence350 to
what appears to be a variant on the preponderance of the evidence test. 351 In juvenile justice
348
See Jeffries & Stephan, supra note 231, at 1330-31.
349
See Adams v. Maryland, 8 Md. App. 684, 262 A.2d 69 (1970); People v. Lang, 402 Ill. 170, 83 N.E.2d 688
(1949).
350
See State v. Skeen, 137 W. Va. 806, 74 S.E.2d 413 (1953) (clear and convincing proof). See also Senn v.
State, 53 Ala. App. 297, 299 So. 2d 343 (1974) (clear evidence).
351
See Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979) (presumption prevails until the contrary is
affirmatively shown by the evidence).
105

proceedings jurisdictions vary as well as to the proper measure of proof.352 The cases provide
little in the way of a rationale for use of a given standard.
Although it appears that the proof beyond a reasonable doubt standard is not constitutionally
mandated when affirmative defences353 such as the infancy defence are asserted, arguments
rooted in the policies underlying the adult and juvenile justice processes may be marshalled
in favour of its use. Proof beyond a reasonable doubt can be justified, in part, by reference to
the criminal justice system’s deliberate slant toward screening out the innocent. This standard
is regarded as indispensable to the American criminal procedure because it is a prime
instrument for reducing the risk of convictions resting on factual error. For this reason, proof
beyond a reasonable doubt is required as to every element of an offence.354 While the
capacity to be culpable is not, per se, an element required for conviction, there is a substantial
overlap between the infancy defence and mens rea. Thus the interest in protecting the
innocent served by requiring proof of the specific mental element of a crime will also be
served by requiring the same stringent standard of proof when capacity is at issue.
The fact that the infancy defence is raised in a juvenile proceeding should make no difference
in this regard. The animating principles justifying the existence of the juvenile justice system
have been held not to support a distinction as to the standard of proof required for conviction
in a juvenile proceeding.355 The loss of liberty and stigmatizing effects attending a juvenile
352
Compare Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978) (proof beyond reasonable
doubt), with In re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979) (reasonable doubt standard rejected
in favour of statutory standard of “clear proof”).
353
Current constitutional dogma extends the constitutional proof beyond a reasonable doubt requirement to
elements of crime but not to facts necessary for a defence to criminal liability. Compare Mullany v. Wilbur, 421
U.S. 684 (1975), with Patterson v. New York, 432 U.S. 197 (1977). See generally Jeffries & Stephan, supra
note 231, at 1338-44. Arguments relying on a constitutionally based reasonable doubt standard have been
rejected in juvenile court. See In re Clyde H., 92 Cal. App. 3d 338, 343, 154 Cal. Rptr. 727, 730 (1979) (“Since
the Legislature may constitutionally require an adult criminal defendant to prove insanity by a preponderance of
the evidence [citation omitted] it may constitutionally set forth by statute the standard by which a minor of a
given age shall be found capable of committing a crime.”). These arguments have also been rejected in a full-
fledged criminal proceeding. See Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977).
354
In re Winship, 397 U.S. 358 (1970).
355
Id.
106

proceeding speak in favour of minimizing the risk of sanctioning the culpable by requiring
that capacity be proven beyond a reasonable doubt.
Finally, imposing a reasonable doubt standard on the state in infancy matters may be required
as a corrective measure against the historical propensity of juvenile court officials to read
their mandate in the broadest possible light.356 While judicial officers have some flexibility in
interpreting evidentiary sufficiency, the reasonable doubt standard may serve as an important
reminder that culpability, not vulnerability, provides the justification for juvenile justice
intervention.
4.1.9 THE TEST FOR CAPACITY
Various tests have been used in defining what is required for the state to prove capacity.357
Most centre on the child’s capacity to understand the nature and consequences of his acts and
to distinguish right from wrong in reference to the charged offence. 358 While this test appears
to be sufficient, it may be appropriate to address a second concern in the infancy inquiry; is
the child mature enough to conform his behaviour to the requirement of the law? A child’s
moral development is a compendium of substantive knowledge of right and wrong learned in
the context of controlling impulse.359Lack of impulse control is a real aspect of childhood.
Punishment in the absence of such control is as violative of the culpability principle as is
356
Since Gault “no revolution has occurred in the implementation of due process in the juvenile court. Most
judges do concur that juvenile rights should be acknowledged and protected, but they agree far less about how
and to what extent procedural safeguards must be implemented.” NATIONAL ASSESSMENT OF JUVENILE
CORRECTIONS, BROUGHT TO JUSTICE (R. Sarri & Y. Hansefled eds. 1974).
357
See supra note 24.
358
See Redman v. State, 580 S.W.2d 945 (Ala. 1979) (appreciate nature and consequences of his acts and
possess knowledge of right from wrong in reference to offense charged); Little v. State, 261 Ark. 859, 554
S.W.2d 312 (1977) (minor defendant must know right from wrong in reference to offense with which she was
charged); In re Gladys R., 1 Cal. 3d 855, 464 P.2d 127, 83 Cal. Rptr. 671 (1970) (knowledge of wrongfulness);
Adams v. State, 8 Md. App. 684, 262 A.2d 69 (1970) (knew what he was doing and it was wrong).
359
The psychological literature reveals a relationship between cognitive and affective sense of right and wrong
and the capacity to control impulse. See supra notes 175-77 and accompanying text. For that reason, even if the
impulse control inquiry is rejected as a second leg of the capacity test, inventive counsel may want to explore it
under the rubric of the right/wrong inquiry. It should be noted that while this test roughly parallels the ALI
insanity test, the inquiries are not coextensive. Insanity focuses on mental disorder, capacity on the maturational
process.
107

punishment where the offender cannot distinguish right from wrong. Courts committed to
fully exploring the capacity issue should address the impulse control question.
4.1.10 EVIDENCE REQUIRED TO PROVE CAPACITY
While case law on the infancy standard is relatively undeveloped, the issue of the type of
evidence required to satisfy the capacity burden has been explored in at least one line of the
case of re Gladys R360. In this case, California Supreme Court suggested avenues of inquiry
that might profitably be analysed in determining whether capacity exists. These factors
include the child’s age, experience, knowledge, and conduct.361
In cases since Gladys R., courts making the capacity determination have looked at evidence
gleaned from a variety of sources, including interviews of the child by psychologists 362 and
school personnel,363 police interrogation of the accused on the right/wrong issue,364 opinions
of relatives and others as to the child’s substantive knowledge of right and wrong365 and his
capacity to make judgments concerning right and wrong,366 admissions of the accused to
parents,367 conduct and circumstances surrounding the crime suggesting consciousness of
guilt,368 and prior involvement in wrongdoing.369 While such evidence taken in combination
360
1 Cal. 3d 855, 464 P.2d 127, 83 Cal. Rptr. 671 (1970).
361
1 Cal. 3d at 866, 464 P.2d at 136, 83 Cal. Rptr. at 680.
362
See In re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979) (psychologist); In re Patrick W., 84 Cal.
App. 3d 520, 148 Cal. Rptr. 735 (1978) (psychologist); In re Roderick P., 7 Cal. 3d 801, 500 P.2d 1, 103 Cal.
Rptr. 425 (1972) (psychologist and school personnel).
363
In re Roderick P., 7 Cal. 3d 801, 500 P.2d 1, 103 Cal. Rptr. 425 (1972) (psychologist and school personnel).
364
See In re Michael B., 44 Cal. App. 3d 443, 118 Cal. Rptr. 685 (1975).
365
See In re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979).
366
Id.
367
See In re Tanya L., 76 Cal. App. 3d 725, 143 Cal. Rptr. 31 (1977).
368
See In re Tony C., 71 Cal. App. 3d 303, 139 Cal. Rptr. 429 (1977), vacated, 21 Cal. 3d 888, 582 P.2d 957,
148 Cal. Rptr. 366 (1978); In re Cindy E., 83 Cal. App. 3d 393, 147 Cal. Rptr. 812 (1978); In re Patrick W., 84
Cal. App. 3d 520, 148 Cal. Rptr. 735 (1978); In re Tanya L., 76 Cal. App. 3d 725, 143 Cal. Rptr. 31 (1977). In
In re Patrick W., supra, the court rejected the argument that evidence of the circumstances pertaining to the
crime should not be admissible to show knowledge of the wrongfulness of the act as unduly prejudicial, citing
its true relevance to the issue at hand. This issue was explored in greater depth in both the appellate court and
supreme court opinions in In re Tony C., supra. In that case the trial court had evidently relied on evidence of
the acts at issue (theft of a vehicle, rape, and robbery) and the minor defendant's mother's testimony as to the
moral guidance she had given him to find capacity. The court of appeals reversed, finding the mother's
testimony insufficient proof of capacity and rejecting the Attorney General's argument that weighing the nature
and circumstances of the crime itself could serve as the basis for the capacity determination. The court theorized
that if proof of knowledge could be met by proof of the act, the knowledge requirement would be rendered
108

may be probative, legitimate concern may be raised when there is reliance on only one source
or type of evidence to prove capacity, especially when that evidence relates only to the act
charged.
Gladys R.’s suggestion that a multi-dimensional inquiry into capacity is required has not been
clearly confirmed in the case law. While it has been held that sole reliance on proof that the
act was committed370 or on a single inquiry into the child’s knowledge of whether he knew
that the act committed was wrong371 is insufficient to meet the clear proof standard, there is
no definitive holding that the capacity inquiry be multi-dimensional. At least one Court of
Appeal’s opinion in re Cindy R372 has rejected a proposed requirement that courts must
consider evidence regarding the accused’s intelligence, education, experience, or moral frame
of reference in making the capacity determination.
The Cindy R. court may be correct in its determination not to put a burden on the state of
producing a rigid evidentiary laundry list. On the other hand, evidence of conduct alone may
merely duplicate proof of the elements of the crime. To safeguard the state’s interest in
screening out the non-culpable, it would seem appropriate to require more than proof of
conduct coextensive with the elements of the crime. In addition, once the state has apparently
met its burden in rebutting the presumption of incapacity, it would be inappropriate for the
meaningless. The court suggested inquiry into objective evidence such as testimony from school personnel and
psychologists. The California Supreme Court opinion in In re Tony C., supra, affirmed the trial court's holding
on the capacity issue, concluding that while reliance on bare commission of the act would indeed frustrate the
purposes of the knowledge requirement, attendant circumstances of the crime such as its preparation, method of
commission, and concealment would shed light on the child's understanding of the wrongfulness of his act. The
court relied on evidence of Tony's use of deadly force in committing the rape, his conduct in taking the victim to
a secluded location, and his inquiry as to whether the victim would call the police to find that Tony knew the
wrongfulness of his conduct. Reference was also made to Tony’s age (eight weeks short of fourteen) in
establishing capacity to know wrongfulness.
369
In re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979) (prior involvement in similar conduct
triggering repeated warnings relevant to knowledge of wrongfulness of conduct); In re Harold M., 78 Cal. App.
3d 380, 144 Cal. Rptr. 744 (1978) (evidence of two prior sustained delinquency petitions relevant to knowledge
of wrongfulness of conduct).
370
See In re Tony C., 21 Cal. 3d 888, 900, 582 P.2d 957, 964, 148 Cal. Rptr. 366, 373 (1979) (holding that
while circumstances surrounding commission of a crime are relevant to prove capacity "[i]t would manifestly
frustrate the intent of Penal Code section 26 to infer such knowledge [of wrongfulness] from the bare
commission of the act itself."').
371
In re Michael B., 44 Cal. App. 3d 443, 118 Cal. Rptr. 685 (1975).
372
83 Cal. App. 3d 393, 147 Cal. Rptr. 812 (1978).
109

court not to hear multi-dimensional evidence presented by the accused in his defence. By
requiring something more than a superficial ventilation of the capacity issue by the state, and
by allowing the accused to present a multi-dimensional array of evidence in his defence, the
underlying policies of the infancy defence will be served.
4.2 INSANITY
4.2.1 THE DEFENCE OF INSANITY IN NIGERIA
The Criminal Code and the Penal Code embody the Nigerian Position on the plea of insanity.
The relevant provisions are section 27 and section 28 of the Criminal Code and section 51 of
the Penal Code. The first leg of section 28 of the Criminal Code reads as follows:
“A person is not criminally liable for an act or omission if at the time of doing the act or
making the omission he is in such a state of mental disease or natural mental infirmity as to
deprive him of capacity to understand what he is doing, or of capacity to control his actions,
or of capacity to know that he ought not to do the action or make the omission”.
The Penal Code contains a similar provision in section 51 and it reads thus:
“Nothing is an offence which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is
either wrong or contrary to the law”.
Section 27 of the Criminal Code contains a provision which is analogous to the first of the
three rules formulated in the M’Naghten’s case. It reads thus: “Every person is presumed to
be of sound mind and to have been of sound mind at any time which comes in question, until
contrary is proved”.
It is important to consider one crucial stage regarding the issues of insanity –the
determination of whether the accused is capable of making a defence.
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4.2.2 INABILITY TO MAKE A DEFENCE
Before or in course of a criminal trial, a judge, holding the trial, may suspect that the accused
person is of such unsoundness of the mind that he cannot make his own defence. The judge
will put the trial on hold and proceed to make enquiry on the fact of such unsoundness of
mind. This may entail taking evidence from psychiatric experts while the accused will be
remanded for a period not exceeding one month to be obtained for observation in an asylum.
On the other hand, if there is a certification from a medical officer that the accused is of
sound mind and capable of making his defence, the court shall, unless satisfied by the
defence that the accused person made is of unsound mind, proceed with the trial. But if the
medical officer certifies that the accused cannot make his defence and the court is satisfied by
that certification the judge may release him (the accused) on bail or report the matter to the
Governor or President who may order the accused to be remanded in custody373. If the
accused is later certified to be capable of making his defence then the trial may proceed.
“It must be noted that Part 25 of the Nigerian Criminal Procedure Act, which deals with
“persons of unsound mind,” has in contemplation not only proven cases of insanity but
people who though not insane are nevertheless incapable, by reason of some physical or
mental defects, of following proceedings in court and thus cannot make a proper defence374.
This incapacity is, in law, popularly referred to as the visitation of God. Note that in the
English case of R v. Podola375, it was held that a mere hysterical amnesia which prevented
the accused from remembering the events in question was not a sufficient reason to stay with
the proceedings.
373
This procedure is regulated by Pert 25 (sections 222-235A) of the C.P.A See also R v Ogor (1961) 1 All
N.L.R. 70 and Ogbu v State (1992)10 S.C.N.J.88.
374
See Kaplotwa Tarina v R (1957) E.A.553.
375
(1960) 1 Q.B.325.
111

4.2.3 INGREDIENTS OF A PLEA OF INSANITY
By virtue of section 28 of the Criminal Code, whenever a plea of insanity is raised, the
defence must establish the following:
a) That at the time of doing the act or making the omission the accused was in a state of
mental disease or natural infirmity.
b) That the disease of infirmity was such as to deprive him, either:
i. of his capacity to know what he was doing; or
ii. of his capacity to know that he ought not to do the act or make the omission;
or
iii. of his capacity to control his actions.
The above, basically, are the ingredients of the plea of insanity as embodied in the Criminal
Code. These shall now be discussed with relevant judicial authorities.
4.2.4 THE DISEASE OR INFIRMITY376
What is the meaning of the term “mental disease” or “natural mental infirmity”, as used by
the Criminal Code in the section under consideration? Okonkwo and Naish have suggested
that the term was clearly meant by the legislature to go farther than “mental disease” and the
M’Naghten definition377. They are probably right considering the approach adopted by the
West African Court of Appeal in R v. Omoni378. Adopting a passage from Stephen’s Digest
of Criminal Law, the court defined “natural mental infirmity” as “a defect in mental power
neither produced by his own fault nor the result of the disease of his mind”. The Federal
376
Under section 51 of the Penal Code, the analogous term used is “unsound mind”. The two mean basically the
same thing. For the ingredients of insanity, see Oladele v State (1991) 1.N.W.L.R. (pt. 170) 709 and Loke v
State (1985) 1 N.W.L.R. (pt. 1) page 1.
377
Okonkwo C., op. cit., at page 135.
378
(1949) 12 W.A.C.A. 511.
112

Supreme Court adopted this definition in R v. Tabigen379, holding that a defect in mental
power is not equivalent merely to inability to master the passions. The court took the view
that although the fact that an accused person was in the grip of a strong passion may be
relevant in determining whether he had capacity of self-control, this question would arise
only after his mental disease or natural mental infirmity had been proved. In Lasisi v. State380,
it was held that evidence of the accused without more will not be sufficient to prove mental
disease or natural infirmity.
It must be noted, finally on this point, that the relevant time of the insanity is the time the
accused did the act or made the omission. Accordingly, the fact that the accused was of a
sound mind as at the time of his trial is irrelevant. Conversely, the fact that the accused is of
unsound mind at the time of trial is not relevant to prove his mental state at the time of the
commission of his crime. Thus, where a person commits an offence during his lucid intervals,
he will be treated as being fully responsible for it in law381.
4.2.5 LACK OF CAPACITY
After the defence has been established that the accused was suffering from mental disease or
natural mental infirmity, it must go further to show that the disease or infirmity was such as
to deprive him of any of the three capacities listed in the Code i.e. that he did not understand
what he was doing, or he did not know that he ought not to do what he did, or that he could
not control his actions. It is important to point out that these three elements are disjunctive.
Thus, a satisfaction of just one of them is sufficient to sustain a plea of insanity. All that the
accused is required to do is show that at the time he did the act or made the omission he was
379
(1960) 5 F.S.C.8.
380
(1964) 10 S.C. 111 at 127.
381
See G. Williams, op. cit.,at page 566.
113

suffering from a mental disease or a natural mental infirmity such as to deprive him of any of
the three different capacities listed in this section.
4.2.6 DELUSION AND INSANITY
Literally, delusion is a false belief or impression but in a psychological sense it is a symptom
or form of mental disorder382. It is a persistent belief that is inaccessible to reason, the belief
of things as real which exist only in the imagination of the person suffering from it or of the
person deluded.
By the provision of the second limb of section 28 of the Criminal code, a person whose mind
is affected by delusions as at the time of the commission of a crime but is not entitled to the
benefit of the first limb of section 28 of the Criminal Code, a person whose mind is affected
by delusions as at the time of the commission of a crime but is not entitled to the benefit of
the first limb of the said section is criminally responsible for his act or omission. In other
words, a plea of delusion alone cannot excuse criminal liability. In the case of Yusuf v.
State383, the Supreme Court held that before a person can rely on this defence he must be able
to show that he is entitled to the benefit of the first part of section 28 of the Criminal Code. In
other words, the ingredients of insanity, as discussed earlier, must be proved before an
accused can successfully raise delusion as a defence. In the Yusuf’s case, the appellant was
charged with murder of his wife. He had gone to the farm with the deceased and on their way
back home an argument ensued between both of them. The wife threatened to report the
husband to her father over the subject matter of the argument. He begged her but to no avail.
He then pounced and inflicted grievous harm on her. The deceased later bled to death from
the injuries sustained. At the trial, the accused person raised the defence of unsoundness mind
382
The Concise Oxford Dictionary, op. cit,. at page 367.
383
(1988) 4N.W.L.R. (pt. 86) 96.
114

and delusion. He told the bear that he saw a bear that jumped on him and that it was after the
act that he realized that he had killed his wife. At the trial, two witnesses gave evidence of his
long history of mental illness. A native doctor who once treated him also testified. Rejecting
this plea, the trial court held that he knew what he was doing; that he killed his wife because
of what she said. His appeal to the Court of Appeal and the Supreme Court were dismissed.
The Apex court, applying section 28 of the Criminal Code, held that before a person can rely
on delusion under the second part of section he must have satisfied the requirements of the
first part i.e. delusion must have resulted in unsoundness of mind. The court further held that
before a person can rely on insanity as a defence, the ingredients listed in the first part of the
said section 28 must be established. His Lordship, Obaseki J.S.C., (as he then was) noted thus
in Yusuf’s case:
“While insanity encompasses delusion, delusion does not encompass insanity. Where a
defence of insanity exists, a defence of delusion cannot arise for consideration. It is subsumed
according to section 28 of the Criminal Code. A defence of delusion arises only when the
defence of insanity is not available to the accused. There is no doubt that the basic cause of
insanity and delusion is a disease of the mind. Hence, the two defences have been properly
treated and dealt with in the same section. But the degree of illness of the mind in insanity is
definitely severer than the degree of illness in delusion”384.
4.2.7 PROOF OF INSANITY
Whether at the time of commission of a crime the accused person was suffering from a
mental illness or natural mental infirmity such as to deprive him of any of the capacitates
mentioned in section 28 of the Criminal Code is a question of fact the proof of which depends
384
For more on the defences of insanity and delusion, see George v State (1991) 9 N.W.L.R. (pt. 91) 208, Tony
Ejinmani v State (1991) 7 S.C.N.J. 318, Effiong Idofia v State (1981) 11-12 S.C. 49, Monday Chukwu v State
(1994) 4 S.C.N.J. 85, and Samuel Akaideme v State (1984) 4 S.C. 25.
115

on the circumstances of each case that comes before the court. In arriving at its decision, the
court will take into account a number of factors. For instance, the court may consider
evidence of insanity in the accused’s ancestors or blood relations385. Consideration may also
be given to the accused’s acts previous to or contemporaneous with the wrongful act. In the
Inyang’s case, the inferred insanity from the fact that the accused had been known to suffer
severe headaches, wander about at night, speak in a meaningless manner, throw his food
away and go to school with a sock and shoe on one foot only. There was also evidence before
the court that the accused’s father had no control over his actions and that on several
occasions while in prison he urinated into his food. The court had no difficulty in reaching a
conclusion, from these facts, that the accused was actually insane386.
4.2.8 BURDEN OF PROOF OF INSANITY
Both the M’Naghten doctrine387 and section 27 of the Criminal Code raise a presumption of
sanity in favour of every human being. This effectively places the burden of proving insanity
on the defence and constitutes a significant exception to the rule that in criminal matters, the
prosecution bears the burden of proof388. This burden, it has been held389, is not, however, as
heavy as that which is generally placed on the prosecution. It is actually not higher than that
which rests on a plaintiff or defendant in civil cases. The popular view seems that to be that
385
See R v Inyang (1946) 12 W.A.C.A. 5.
386
Note that in this case, it was held that in establishing insanity, medical evidence is desirable but it is not
mandatory. See also Dim v R (1952) 14 W.A.C.A.154 where the accused’s moroseness was attributable merely
to an illness causing pain rather than a disease of the mind.
387
See part of the M’Naghten rules.
388
See section 139(3)(c) of the Evidence Act (as amended).
389
See R v Nagamu (1940) 6 W.A.C.A 74 and Sodeman v R (1936) 2 All E.R. 1138.
116

the defence is only required to establish that it was “most probable” that the accused was
insane as at the time he did the unlawful act390.
4.2.9 EFFECT OF A FINDING OF INSANITY
Under the old English rule, it was uncommon for a court to deliver a verdict of “guilty but
insane”391. This rule was applied, erroneously, in the Inyang’s case and in the case of State v.
Moradehun392. The position of the law presently is that a finding of insanity relieves the
accused of criminal responsibility such that the proper verdict will be “not guilty by reason of
insanity”. This is more so given the provision of section 229 of the Criminal Procedure Act
which speaks of “acquittal on ground of insanity”. Another effect of this is that a finding of
insanity not appealable393.
One major challenge with the law itself has addressed has to do with the danger that a person
found guilty by reason of insanity may constitute to the community if he is left off the hook.
If the accused committed an offence and would have been guilty thereof but for his insanity,
the law is that he shall be kept in safe custody pending a decision by the Governor 394. He may
thus be confined in a lunatic asylum or prison or any other suitable place of safe custody
during the pleasure of the Governor.
Another knotty point arises from the fact that there is no fixed period during which an
accused confined in prison in circumstances governed by this provision can regain his
freedom. He is simply kept there at the pleasure of the Governor or President. The law merely
390
See R v Nagamu Supra, R v Ashigifuwo (1948) 12 W.A.C.A 389 and R v Omoni (Supra).
391
This rule has since been altered in England. The verdict is now “Not guilty by reason of insanity”. See
section 1, Criminal Procedure (Insanity) Act, 1964.
392
(1971) 1 N.M.L.R. 15.
393
See R v Duke (1962) 46 Cr. App. R.42.
394
See section 230 of the C.P.A.
117

provides that he will be under observation by a medical officer who is to ascertain the state of
mind and make a special report to the Governor at such time(s) as the Governor shall
require395. There is, however, nothing in this provision that suggests that the Governor is
bound by the medical report. Thus, even if the report is to the effect that the detainee is now
of a sound mind and can live his normal life, the Governor may just decide to keep him there
since upon receipt of such report “the Governor may order his discharge or detention as he
thinks fit”396. Perhaps, the only remedy available to such a detainee will be to approach the
court for the enforcement of his fundamental right to liberty as guaranteed by section 35 of
the 1999 Constitution (as amended).
4.2.10 THE DOCTRINE OF DIMINISHED RESPONSIBILITY
The question of the effect that mental disturbance has no criminal responsibility was not fully
addressed in Britain by the M’Naghten rules of 1843. In fact, the limitations or defects
inherent in the rules led to a recommendation in the Report of the British Royal Commission
on Capital Punishment of 1953 that the doctrine of diminished responsibility be introduced
into English Law. This recommendation was adopted by the British parliament culminating
in the entrenchment of section 2(1) in the Homicide Act of 1957 in which the notion is
defined as “such abnormality of mind (whether arising from a condition of arrested or
retarded development of mind or any inherent causes or induced by disease or injury) as
substantially impaired his mental responsibility for his acts and omissions in doing or being a
party to the killing”.
A plea of diminished responsibility, when successfully raised, reduces a charge or murder to
one of manslaughter. It is predicated on the principle that the State should only hang a
395
396
118

murderer who knew what he was doing and was fully responsible at the time of the
commission of the crime.
Another philosophy behind this doctrine, according to Okonkwo and Naish397, is that as long
as death penalty remains the punishment for murder “it seems monstrous to apply it to the
people who, in common sense, are not fully responsible, although in law they may be sane
according to the rules in the Code”. The learned authors have also strongly advocated the
introduction of a similar mitigation of punishment into Nigeria, in the same way as
Queensland did through an amendment of its own Code in 1961.
4.2.11 THE DEFENCE OF INSANITY IN NEW ZEALAND
4.2.12 THE DEFENCE OF INSANITY: THE M’NAGHTEN RULES398
The defence of insanity is a creation of the common law:
“There is no statutory definition of insanity and there never has been one for the purposes of
the criminal law. The answers given by the judges to the House of Lords following
M’Naghten’s Case…were not given in the course of any judicial proceedings.”399
Daniel M’Naghten assassinated the Prime Minister’s secretary but was acquitted of murder
on the grounds that he was “insane at the time of the commission of the offence”. By virtue
of the Criminal Lunatics Act 1800 he was detained until his death some 22 years later. The
fact that he was acquitted, however, caused a public outcry. A House of Lords debate
followed and it was decided that the judges should be summoned to give their opinion “as to
the law respecting crimes committed by persons afflicted with insane delusions”.400 The
reference to “delusions” arose from the fact that M’Naghten had committed the assassination
while under the delusion that he was being persecuted by the Prime Minister, Robert Peel. He
397
See Okonkwo C., op. cit., at page 114.
398
M’Naghten’s Case (1843) 10 Clark and Finnelly 200, (1843) 8 ER 718, [1843-60] All ER Rep 229.
399
Sullivan [1984] AC 156, 170 to 171, by Lord Bridge.
400
R Moran, Knowing Right from Wrong: The Insanity Defense of Daniel McNaughtan (1981) p 168.
119

killed the latter’s secretary in the mistaken belief that the secretary was the Prime Minister.
The judges were asked to answer certain questions, and those questions together with the
answers given constitute the M’Naghten Rules. The Rules have been treated as authoritative
for more than a century and continue to form the definitive statement of the insanity defence
in English law.401
The Rules consist of the judges’ answers to five questions. Three of the four questions are
predicated on the defendant being either “afflicted with” or “under” an insane delusion. The
answers to the questions are not confined to cases of insane delusions,402 although
M’Naghten must have been the case the judges had in mind.
Questions 2 and 3 respectively were: “What are the proper questions to be submitted to the
jury when a person alleged to be afflicted with insane delusion respecting one or more
particular subjects or persons, is charged with the commission of a crime (murder, for
example), and insanity is set up as a defence?”
“In what terms ought the question to be left to the jury as to the prisoner’s state of mind at the
time when the act was committed?”
The key passage of the answer states:
The jurors ought to be told in all cases that every man is to be presumed to be sane, and to
possess a sufficient degree of reason to be responsible for his crimes, until the contrary be
proved to their satisfaction; and that to establish a defence on the ground of insanity, it must
be clearly proved that, at the time of the committing of the act, the party accused was
labouring under such a defect of reason, from disease of the mind, as not to know the nature
and quality of the act he was doing; or, if he did know it, that he did not know he was doing
what was wrong.
401
Approved by Lord Diplock in Sullivan [1984] AC 156.
402
Windle [1952] 2 QB 826, 833 to 834; Sullivan [1984] AC 156.
120

When following the case law interpreting the rules, it is worth bearing the historical context
in mind, in particular that the interpretation of the words was affected by the possible
outcomes for those found “not guilty by reason of insanity”. Until 1991 a person found not
guilty by reason of insanity would be detained in a mental hospital for an indefinite period.
Until 1957, if charged with murder, there was no defence of diminished responsibility to
reduce the offence to manslaughter. Until November 1965 (when the Murder (Abolition of
Death Penalty) Act 1965 came into force) a person charged with murder would, therefore,
face the death penalty if convicted or indeterminate detention as a psychiatric patient if
insane. After that date, the possibilities were detention in prison or in a psychiatric hospital.
Any person with a mental disorder had, therefore, a strong incentive to seek an outright
acquittal by relying on sane automatism. The courts, by contrast, sought to limit the scope of
sane automatism, in part to distinguish the genuine plea from the fraudulent,403 and in part to
avoid the release of people who were dangerous and who might commit further violent
offences.
4.2.13 THE PRESUMPTION OF SANITY
The judges’ answer to the questions in M’Naghten opens with a statement of the presumption
of sanity: “the jurors ought to be told in all cases that every man is to be presumed to be sane,
and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary
be proved to their satisfaction”.404
“At the time of committing the act”
The defence is of course founded on the accused’s condition at the time of the alleged
offence.
“Defect of reason, from disease of the mind”
403
Hill v Baxter [1958] 1 QB 277, by Devlin J; Cooper v McKenna [1960] Qd LR 406, 419, by Stable J: “‘black
out’ is one of the first refuges of a guilty conscience and a popular excuse”.
404
See Layton (1849) 4 Cox’s Criminal Cases 149.
121

An abnormality of mind which does not reflect impaired powers of reasoning, such as an
inability to control one’s emotions or resist impulses,405 is not capable of constituting a
“defect of reason”. The powers of reasoning have to be impaired. A mere failure to use
powers of reasoning is not enough.406 Momentary failure of concentration, even where caused
by mental illness, is not insanity within the M’Naghten Rules. A defendant in such a case
would rely on the evidence of mental illness to negative mens rea. For example, in Clarke the
charge was one of theft, and, had the accused contested the case, she would have argued that,
because of her depression, she did not form the intention necessary for the offence of theft.407
“Disease of the mind” is not limited to diseases of the brain: “it means a disease which
affects the proper functioning of the mind”.408 “Mind” here means, in the words of Lord
Diplock, “the mental faculties of reason, memory and understanding”.409 What matters is the
effect of the impairment, as he explained:
“If the effect of a disease is to impair these faculties so severely as to have either of the
consequences referred to in the latter part of the rules, it matters not whether the aetiology of
the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is
permanent or is transient and intermittent, provided that it subsisted at the time of
commission of the act.”410
Whether the disease which produces the impairment is physical or mental does not matter.
This interpretation is consistent with the view held by Mr Justice Devlin in the Assizes case
of Kemp,411 and with the opinion of the House of Lords in Bratty v. Attorney-General for
405
Kopsch (1927) 19 Cr App Rep 50; A-G of South Australia v Brown [1960] AC 432.
406
Clarke [1972] 1 All ER 219, 221, by Ackner J.
407
Clarke [1972] 1 All ER 219.
408
Hennessy [1989] 1 WLR 287, 292, by Lord Lane CJ.
409
Sullivan [1984] AC 156, 172. The defendant claimed that he had committed the alleged assault while
suffering a seizure caused by psychomotor epilepsy. He argued that his defence of “non-insane automatism”
ought to have been left to the jury. The Court of Appeal rejected the appeal, as did the House of Lords.
410
Sullivan [1984] AC 156, 172.
411
[1957] 1 QB 399.
122

Northern Ireland.412 These cases were influential in the House of Lords in Sullivan413
reaching its controversial interpretation of disease of the mind, so brief discussion of them is
warranted.
4.2.14 THE TWO LIMBS OF THE RULES
There are two aspects to the Rules. The cognitive aspect is represented by the words “as not
to know the nature and quality of the act he was doing”. The wrongfulness aspect is
represented by the words “that he did not know he was doing what was wrong”.
a. The cognitive aspect: “AS NOT TO KNOW THE NATURE AND QUALITY OF
THE ACT HE WAS DOING”
In Codère, it was argued on behalf of the defendant that “nature” of the act referred to its
physical aspect and “quality” to its moral aspect. The Court of Criminal Appeal did not
accept this argument and held that “nature and quality” have to do only with the physical
aspects of the act.414 As Lord Diplock explained in the House of Lords in 1984:
The audience to whom the phrase in the M’Naghten Rules was addressed consisted of peers
of the realm in the 1840’s when a certain orotundity of diction had not yet fallen out of
fashion.
Addressed to an audience of jurors in the 1980’s it might more aptly be expressed as “He did
not know what he was doing.”415
If the accused was conscious but did not know what he or she was doing, in a case in which
the offence involves mens rea, the defence might be advanced simply on the basis that the
relevant mens rea is lacking.416
412
Bratty v A-G for Northern Ireland (“Bratty”) [1963] AC 386.
413
[1984] 1 AC 156.
414
Codère (1917) 12 Cr App Rep 21, 27.
415
Sullivan [1984] AC 156,173.
416
See Blackstone’s para A3.18.
123

b. The wrongfulness aspect: “HE DID NOT KNOW HE WAS DOING WHAT
WAS WRONG”
The issue of interpretation that has troubled the courts on this second limb is whether
“wrong” here means contrary to law, or morally wrong. The current law is that if it can be
shown that the accused knew either that the act was morally wrong or that the act was against
the law, then it cannot be said that he did not know he was doing what was wrong.417
Arguably there should be a connection between the cognitive aspect of the Rules and the
wrongfulness aspect such that if, as a result of the nature of the mental illness, the accused’s
thinking was distorted to the extent that he or she thought the act was warranted then the
accused would be able to rely on the insanity defence. Something approaching this argument
was put forward in Codère but then withdrawn, and the defence conceded that “the standard
to be applied is whether according to the ordinary standard adopted by reasonable men the act
was right or wrong”.418
4.2.15 WHO MAY RAISE THE ISSUE OF INSANITY
The issue of insanity may be raised by the defendant, and in some circumstances it may also
be raised by the prosecution. In Bratty the House of Lords held that if the defendant denies
mens rea, and relies on evidence of mental disorder to do so, the prosecution may also adduce
evidence of “insanity”, and seek a verdict of not guilty by reason of insanity. 419 If neither the
prosecution nor the defence raise the issue of insanity, the judge may do so, if there is a
417
Codère (1917) 12 Cr App Rep 21 and Windle [1952] 2 QB 826.
418
Codère (1917) 12 Cr App Rep 21. The argument ran: the defendant knows that murder is against the law and
could not therefore have thought it was not morally wrong. It cannot therefore be said that he did not know he
was doing what was wrong. Whatever his cognitive abilities, he cannot rely on the insanity defence. According
to this reasoning awareness that an act is against the law entails awareness that it is morally wrong.
419
Bratty [1963] AC 386, 411 to 412, by Lord Denning. At the time the special verdict was “guilty but insane”,
but the point is the same.
124

sufficient basis,420 in other words, if there is medical evidence relevant to all the factors in the
M’Naghten Rules.421
If the charge is murder and the defendant pleads diminished responsibility, then the
prosecution may adduce or elicit evidence that the defendant is insane, in the legal sense.422
4.2.16 BURDEN AND STANDARD OF PROOF OF THE INSANITY DEFENCE
If the defendant pleads insanity, then the burden of proof lies on the defence. If the
prosecution is seeking to prove insanity – for example where the defendant denies mens rea
on evidence of mental disorder – then the burden lies on the prosecution.423
The standard of proof of insanity depends on which party is seeking to prove it. If it is the
prosecution which is seeking to prove that the defendant is insane within the meaning of the
law, then it must do so to the criminal standard.424 The standard of proof for the defence is the
balance of probabilities.425
If the case is being heard in the Crown Court, then expert evidence is required by statute
The legal relationship between diminished responsibility and insanity
The defence of insanity is a complete defence:
In theory, the definition of insanity means that whether a defect of reason (stemming from a
disease of the mind) amounts to insanity in law is an “all or nothing” matter. Either D shows
that the defect of reason led him or her not to know the nature or quality of his or her act, or
that the act was wrong, or the defect of reason did not have that effect.426
The “insane” defendant is “not guilty” in law. It is argue that the “insane” defendant should
simply not be held criminally responsible at all for what he or she is alleged to have done. If,
420
See Bratty [1963] AC 386, 411 to 412, by Lord Denning.
421
Dickie [1984] 1 WLR 1031, by Watkins LJ.
422
Criminal Procedure (Insanity) Act 1964, s 6.
423
Although it may be rare in practice for the prosecution to seek to prove insanity. See Bratty
[1963] AC 386, 411 to 413.
424
Podola [1960] 1 QB 325.
425
Woolmington v DPP [1935] AC 462; Sodeman [1936] 2 All ER 1138; Carr-Briant [1943] KB 607.
426
Law Com 304, para 5.142.
125

however, the accused’s ability was “substantially impaired” in particular respects, then he or
she may be able to plead diminished responsibility in response to a charge of murder. 427 If
successful, the partial defence means the defendant is convicted of manslaughter by reason of
diminished responsibility (which does not carry a mandatory life sentence, unlike a
conviction for murder).
427
Homicide Act 1957, s 2 as inserted by s 52 of the Coroners and Justice Act 2009.
126

CHAPTER 5
CONCLUSION AND RECOMMENDATION
5.1.0: CONCLUSION
This study seeks to review the concept of criminal defences in Nigeria by comparing the
operation of the operation some defences in Nigeria with the operation of such defences in a
number of other foreign jurisdictions. The defences treated in this work are both general and
specific defences to criminal liability. The “general defences” to criminal liability will avail
an accused in any criminal offence brought against such person but the “specific defences” to
criminal liability will not avail a person in any criminal offence brought against him but only
reduce his criminal liability.
In chapter two of this work, an insight is given into the operation of the defences of
provocation, self-defence and alibi in Nigeria and their operation in other jurisdictions. Under
the self-defence, the conditions for a successful plea of the defence in Nigeria and England
are examined. This chapter further explains the operation of the defence of provocation in
Nigeria and South Africa as well as the defence of Alibi in Nigeria and Canada.
Chapter three explains the defence of judicial and superior orders in the execution of the law
in Nigeria and England as well as the defence of intoxication in Nigeria and South Africa
Chapter four deals with the infancy defence in Nigeria and America as well as the insanity
defence in Nigeria and New Zealand
At the end of this study, some recommendations that may improve and make perfect criminal
defences in Nigeria are discussed
5.2.0: RECOMMENDATIONS
Having extensively analysed criminal defences in Nigeria and other jurisdictions, it is
important to reach a conclusion that the criminal defences in Nigeria need some reformations.
127

Under self-defence, it has long been accepted that the accused may only use such force as is
reasonable in the circumstances. The general rule is that response must be proportionate to
the attack. Section 298 of the Nigerian Criminal Code which codifies the concept of
excessive force is somewhat vague. The section provides:
“Any person authorized by law to use force is criminally responsible for any excess,
according to the nature and quality of the act which constitutes the excess”
The section does not say what the accused’s liability will be if, by making an error of
judgment, he uses force in excess of what could be reasonably necessary for his defence. The
approach adopted under the Nigerian Penal Code is quite different. Under the Penal Code,
killing occasioned by the use of excessive force in private defence is manslaughter only, not
murder. Section 222 (2) of the Penal Code provides:
“…culpable homicide is not punishable with death if the offender in the exercise (in good
faith) of the right of private defence exceeds the powers given to him and causes death…”
The approach Penal Code of Nigeria to the problem of excessive force used in self-defence
should be followed by the Criminal Code of Nigeria for where a person truly acts in self-
defence as it is difficult to see how a person can regulate the force used in self-defence.
The so-called rule that an alibi must be disclosed “at a time when an investigation may
uncover something” with “full particulars of the defence” is an exception to the general rule
of inadmissibility of pre-trial silence. A substantial period of time should be given before it
can be said that a person must disclose his alibi if he has one to disclose, this is to help in
upholding the rule of inadmissibility before trial
The defence of superior orders should either have more stringent conditions attached to it or
be revoked. The English approach of denying the existence of a defence of superior orders is
as a result that there remain grave doubts as to the wisdom of introducing a defence that
128

would allow soldiers to kill innocent persons deliberately and claim that their actions were
excused.
Under the defence of intoxication, a person who has taken so much intoxicating liquor should
not be allowed to escape liability for his actions, while a sober person, in his full senses,
would indeed be held liable for the same actions as this will allow the socially unacceptable
phenomenon of drinking oneself into a stupor would, in fact, be to the advantage of the
perpetrator.
Snyman explains that if a person loosens the nuts of the wheels of his bicycle, he cannot
complain if he later falls as a result of a wheel coming off while he is in motion. Snyman also
uses the argument of a person who loosens his car’s brake cable. He cannot complain if he is
later involved in a collision. The same principle dictates that if a person voluntarily starts
drinking, he ought not to complain if, in his intoxicated state, he commits a crime. A sober
person has powers of resistance which enable him to overcome temptation to commit a crime.
In consuming large amounts of alcohol, a person knowingly destroys this resistance as the
person in the example who loosened his car’s brake cable, and thus has no grounds for
complaining if he is held accountable for his actions.
The criminal law is governed by the Penal Code and the Criminal code which is applicable to
the Northern and Southern part of Nigeria respectively. There are instances where an act will
be an offence in one part of the country and it won’t be an offence in the other part of the
country. This often leads to disorganization of laws in a country. Since, the two codes are
applied in the same country, there is need to merge the two laws together so that the law will
easily be referred to. There may be a hindrance of religiosity but then, the two codes can be
merged together into one and will have provisions that will suit the whole of the country.
129

BIBLIOGRAPHY
BOOKS
Okonkwo, C.O., Okonkwo and Naish on Criminal Law in Nigeria, 2nd., ed., London, Sweet
and Maxwell, 2008.
Koni, I.J., Appreciating Criminal Law in Nigeria, 2nd., ed., Ilorin, Decision Consult
Management Limited, 2012.
Clarkson, C.M. V. et al, Criminal Law: Text and Materials, 5th ed., London, Sweet and
Maxwell, 2003.
JOURNAL ARTICLES
Andrew W. “The Infancy Defence in the New Juvenile Court”, 31, 503, UCLA Law Review,
1-51 (2005).
Burchill J. “Alibi Defence: Responsibility for Disclosure and Investigation”, 41, 3,
MANITOBA LAW JOURNAL, 1-15 (2018).
“Insanity and Automatism Supplementary Material to the Scoping Paper”, Law Commission,
9-19 (2012).
Ewulum B.E. “The Relevance of the Defence of Alibi in Criminal Trials in Nigeria”, 9, 2,
NAUJILJ, 240-245 (2018).
Oluropo A.F. “An Examination of the Right of Self-Defence and Others in Nigeria”, 28,
Journal of Law, Policy and Globalization, 164-169 (2014).
Charles Roblou Louis De Chermont, “A Critical Discussion of Section 1(1) of the Criminal
Law Amendment Act 1 of 1988” (1998).
Sivakalay Pather, “Comparative Analysis of the Defence of Provocation” (2000).
130

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A CRITICAL EXAMINATION OF DEFENCES TO CRIMINAL LIABILITY IN

NIGERIA: LESSONS FROM OTHER JURISDICTIONS.

MATRIC NO: LAW/2014/0048

BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW, OSUN STATE

UNIVERSITY, IFETEDO CAMPUS, NIGERIA IN PARTIAL FULFILMENT OF

THE REQUIREMENTS FOR THE AWARD OF THE BACHELOR OF LAWS (LL.B

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CRITICAL EXAMINATION OF DEFENCES TO CRIMINAL LIABILITY IN NIGERIA:

been submitted for any other degree or qualification.

TAJUDEEN-AJIBOYE MUSAB A. LAW/2014/0048 __________________

NAME MATRIC NO SIGNATURE/DATE

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This Long Essay titled “A CRITICAL EXAMINATION OF DEFENCES TO CRIMINAL

LIABILITY IN NIGERIA: LESSONS FROM OTHER JURISDICTIONS.” and written by

R.A. MMADU ______________________

Name of Supervisor Signature/Date

Prof. O.A GBADAMOSI ______________________

Name of Dean Signature/Date

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strength to successfully complete this course.

for their love, prayers, understanding, words of encouragement, huge investments to my

the fruits of your labour. Amin.

constructive criticisms, intellectual support and guidance.

Ajiboye Fatimah, Ajiboye Khadijah, and Ajiboye Zainab.

Modinat Abiodun, Mr IIbrahim Balogun, Olafare Olubunmi, Ajiboye Fatima, Mr Gboyelade

Sulaymon Adewale, Mr Amoo-Usman Asimi Akinade, Abdurrazaq Ishaq, Alhaji Gbadamosi

final exams, thank you for being in my life.

for me, I love you all.

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A CRITICAL EXAMINATION OF DEFENCES TO CRIMINAL LIABILITY IN

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judicial and superior officers in the execution of the law.

liability analysed with the operation of such defence in another jurisdiction.

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A-G of South Australia v Brown [1960] AC 432 ................................................................... 122

Agu v. State ............................................................................................................................. 56

Akpan v. State ........................................................................................................................... 6

Albert v Lavin [1982] A.C. 546 ............................................................................................... 18

Anderson v Gorrie [1895] 1 Q.B. 668 ..................................................................................... 72

Andronicou v Cyprus (1998) 25 E.H.R.R. 491 ........................................................................ 20

Asuquo v State (2014) LPELR-23490(CA) ............................................................................. 55

Attorney-General for N. Ireland v. Gallagher ........................................................................ 81

Bakare v State [1987] 1 NWLR (Pt 52) at 579 ........................................................................ 56

Bedder v. D.P.P. ..................................................................................................................... 31

Bello v. State ........................................................................................................................... 34

Bozin v. State .......................................................................................................................... 54

Bratty [1963] AC 386, 411 to 412 ................................................................................. 124, 125

Bratty v. Attorney-General for Northern Ireland ................................................................. 123

Broadhurst v R [1964] 1 All E.R. 111 at 123 (P.C.)............................................................... 81

Carr-Briant [1943] KB 607 ................................................................................................... 125

Cheminingwa v R (1956) 23 E.A.C.A. 451 ............................................................................. 81

Chutuwa v R (1954) 14 W.A.C.A 590 ..................................................................................... 82

Clarke [1972] 1 All ER 219 ................................................................................................... 122

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Cooper v McKenna [1960] Qd LR 406, 419.......................................................................... 121

D.P.P v. Beard ........................................................................................................................ 77

D.P.P. v Camplin (1978) 2 W.L.R.697 .................................................................................... 31

D.P.P. v Majewsky [1976] 2 W.L.R. 623 ................................................................................ 79

Dearnley v R. [1947] St.R.Qd. 51 ............................................................................................ 81