Kissi Agyebeng

Faculty of Law
University of Ghana

CRIMINAL LAW

LECTURE NOTES

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Scope, Aims and Function of Criminal Law

The criminal law is instituted as a mechanism to

protect society and the individual against
injuries that humans are capable of, and have
shown themselves to be capable of, inflicting on
other humans and institutions

In 1957, the Report of the Departmental

Committee on Homosexual Offences and
Prostitution was published in England

The report, better known as the Wolfendon

Report (after its chairman Lord Wolfendon),
asserted that the function of the criminal law is
to:
 preserve public order and decency
 protect the citizen from what is offensive or
injurious
 provide sufficient safeguards against
exploitation and corruption of others,
particularly those who are specially
vulnerable because they are young, weak in
body or mind, inexperienced, or in a state of

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 special physical, official or economic
dependence

In short, the criminal law is an instrument of

safety

The criminal law does not instruct us as to what

to do per se – rather, it indicates consequences
that may attend upon engaging in a specified
form of conduct

It is the most coercive method of regulating

behavior

Criminal law is institutionalized because crimes

are not just infringements on private rights – but
because crimes have a particularly harmful
effect on the public (as a whole)

The nature of crime is such that it is unsafe to

leave it redressable only by compensation of the
individual victim

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It is aimed at forbidding conduct that threatens
to do substantial harm to society, even if the
victim is just an individual

We learn from Oliver Wendell Holmes, Jr. that

the life of the law has not been logic, it has been
experience – in other words, law should be
situated in the human situation

So the criminal law itself, since it regulates

human behavior, must not be oblivious of the
human situation – it must be adaptable to
changing circumstances as well as the
circumstances of the offender

For as Roscoe Pound said, law must be stable

and yet it must not stand still

In poetic language, Shakespeare expresses this

vividly:
We must not make a scarecrow of the law
Setting it up to fear the birds of prey
And let it keep one shape, till custom make
it
Their perch and not their terror

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Thus, we enshrine certainty and predictability of
law, yet we make room for adaptability to suit
changing circumstances

This finds expression in section 4(1) that the Act

should not be construed strictly, either as against
the Republic or as against an accused, but should
be construed amply and beneficially in giving
effect to the Act

And by sec 4(2) a court is not bound by a

judicial decision on the construction of any other
enactment, or of the common law, as to the
definition of a criminal offence or an element of
an offence

The question that arises is: why should

criminal conduct be defined?

We may seek guidance from the American Law

Institute’s Model Penal outline:
 To safeguard conduct that is without
fault from condemnation as criminal
 To give fair warning of the nature of
the conduct declared to be an offence

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  To differentiate on reasonable grounds
between serious and minor offenses

In short, a person must know what conduct is

prohibited as a crime so as to order his steps
thereby – this point will be revisited shortly

The need for defining criminal conduct was

played out in the old English case of Parker v.
Brown

The appellant was granted a licence empowering

him to keep an inn and ale house. The licence
stipulated that the appellant should not
knowingly permit or suffer persons of
notoriously bad character to assemble and meet
together at his premises.
On one night, 14 prostitutes assembled at his
premises and he was charged for breaching the
stipulation in the licence. The issue was whether
the prostitutes were persons of notoriously bad
character.
It was held that the prostitutes were persons of
notoriously bad character and since the appellant
knew them to be prostitutes and he allowed them

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in the house longer than was necessary for the
purpose of taking refreshment, and they met
there for purposes connected with their vocation
as prostitutes, the appellant was liable.

The difficulty with this case is that there was a

danger inherent in the stipulation on the licence
– it was vague and unclear in its terms as to who
qualified as a person of notoriously bad
character

This brings us to our next question: is the

criminal law separate from morality? Or put
in another form, should the criminal law
enforce morals?

On one score, it is perhaps not unsafe to say that

the criminal law has, from its inception,
concerned itself with the enforcement of morals

Criminal law is based upon moral principle –

however one looks at it

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However, the problem is that none of the moral
codes can claim any validity except by virtue of
the religion or creed on which it is based

So the question is: is it the sphere of criminal

law to equate law to sin? – if this is so, whose
morality should prevail?

If the state leaves matters of religion to private

judgment, should it not leave matters of morals
also to private judgment?

But can there be a complete separation of sin

from criminal law?

Their Lordships opined in Proprietary Articles

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

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What about the question of private immorality –
should it be the concern of the State?

Obviously, the law has limits as to what it can

prescribe or seek to achieve, but can the law
criminalize acts that harm no one except perhaps
the person who engages in that conduct?

There are some, like Lord Devlin, who posit that

it is not possible to set theoretical limits to the
power of the State to legislate against
immorality

These theorists also assert that it is not possible

to determine in advance areas of immorality the
law should not be made to enter

Then, there are some who propound that the

immorality of an action is not of itself sufficient
reason to criminalize it – therefore, as long as
the act does not harm any other person, perhaps
except the actor himself, there is no justification
in criminalizing the act

In the words of John Stuart Mill,

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 The sole end for which mankind are
warranted, individually or collectively, in
interfering with the liberty of action of any
of their number is self-protection. That the
only purpose for which power can rightfully
be exercised over any member of a civilized
community against his will is to prevent
harm to others. His own good, whether
physical or moral, is not a sufficient warrant.

Thus, we may say that it is legitimate to

criminalize an act that causes harm to another
person, but where there is no victim, it is
pointless to criminalize the act – we may term
such conduct as victimless acts

It should be borne in mind that the proponents of

this theory distinguish between acts that cause
harm to others and acts that cause offence to
others

But should the law enforce morals somewhat? –

the question then becomes whose morality?

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An interesting illustration of where the criminal
law parts company with morality and the
punishment of sin is Glah

Glah, living in a village near Kpando, had an

affair with both his mother-in-law and his sister-
in-law. He had two children each with his wife,
mother-in-law and sister-in-law, and he had been
living with the three women peacefully for
17yrs.
The chief and elders of the village and others
had warned Glah and his in-laws to desist from
their immoral acts and association but they paid
no heed to the warnings, and members of the
family of the women were incensed and ready to
pounce on them but for the fact that they
exercised restraint.
Glah and his two in-laws were charged with
conduct conducive to a breach of the peace
contrary to sec 207, and they were convicted in
the District Court.
The CA held on appeal that:
There is no doubt that customary law frowns
upon such a conduct but it is not caught by
any section of Act 29 and the family cannot

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take an easy line of things by pursuing their
criminal action. The first appellant has lived
with and cohabited with these spouses
peacefully for over seventeen years and has
two children with each of them. If the
opposition from the family is now feared
then it is the family who should be
restrained…The prosecution would not take
the easy course of preventing an association
which is not caught by section 207 of Act 29
simply because they the prosecution feared
opposition from the family

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The next obvious question is: What is a
crime?

Like all legal terminologies and concepts, crime

does not lend itself to easy definition – our
course may be to describe what it is

The popular meaning of crime is different from

the legal meaning

In law, a crime is defined by reference to the

legal consequences of the act in question

So we may say that a crime is an act that may be

followed by criminal proceedings

For this purpose, when a proceeding is treated

by statute as imposing a penalty for an offence
against the public, the penalty of which is to be
meted by judges according to the magnitude of
the offence, it is a criminal proceeding
- Parker v. Green

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Thus, it is the nature and character of the legal
proceedings that determines whether an act is a
crime or otherwise

In other words, a crime is a legal wrong that may

be followed by criminal proceedings, which may
result in punishment

So in Amand it was explained that if the matter

is one the direct outcome of which may be trial
of the subject and his possible punishment for an
alleged offence by a court, the matter is criminal

And in Brown v. Allweather Mechanical

Grouting Co. Ltd., it was remarked that the mere
fact the word “offence” is used in a statute does
not imply that the provision is to be regarded as
creating a criminal offence – sometimes the
failure to do something is prescribed as an
offence although the law maker imposes in
respect of it, a pecuniary sanction recoverable as
a civil debt and not a criminal sanction

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The concept was explained more succinctly in
Proprietary Articles Trade, where it was
expressed that:
Criminal law connotes only the quality of
such acts or omissions as are prohibited
under the appropriate penal provisions by
authority of the State. The criminal quality
of an act cannot be discerned by intuition;
nor can it be discovered by reference to any
standard but one: is the act prohibited with
penal consequences?...the domain of
criminal jurisprudence can only be
ascertained by examining what acts at any
particular period are declared by the State to
be crimes, and the only common nature they
will be found to possess is that they are
prohibited by the State and that those who
commit them are punished

In short AN ACT IS A CRIME ONLY IF IT IS

PROHIBITED BY STATUTE AND THERE IS
A PENALTY ATTACHED TO THE DOING
OF THAT ACT

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But how is a crime different from a civil wrong?

We have established that it is the nature and

character of the legal proceedings that determine
whether an act is a crime – and that if the matter
is one the direct outcome of which may be trial
of the subject and his possible punishment for an
alleged offence by a court, the matter is criminal

A crime or a civil wrong may be an ACT or

OMISSION

It is not the nature of the ACTION or

OMISSION that determines its classification as
a crime or a civil wrong

It is rather whether society itself has, through

legislation, designated such action or omission
as such

Civil wrongs are actions or omissions that are

unacceptable but are personal in their effect
rather than notionally affecting the whole
society and for which society might not consider
it necessary to punish the offender, so to speak

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For instance, in the situation of a breach of
contract, a civil wrong, society does not punish
the party at fault per se but is made to either
perform his part of the bargain or to compensate
the injured party for the loss resulting from the
breach of contract

A crime is that act or omission that the State

would punish

That is to say, some acts or omissions are of

such nature as are capable of affecting the very
survival of the whole society. These acts society
may decide to proscribe or prohibit and therefore
punish accordingly – as crimes

The State has an interest in ensuring the peace,

growth, strength, development and progress of
the Society and will therefore, from time to time,
identify actions or omissions that could impede
the realization of these aspirations and then
legislate to CRIMINALIZE them

Until the State legislates to CRIMINALIZE an

act, it is not a CRIME

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Therefore, an immoral act or omission is not
necessarily a crime, until a law is passed making
it a crime
E.g. It is criminal for a man to fail to provide the
necessaries of life for his wife and children
actually under his control

But it is not criminal for a man to fail to provide

the necessaries of health and life to his
neighbour’s abandoned children even if harm
should result – this omission may be condemned
as morally reprehensible but it is NOT
CRIMINAL

Also, in Ghana, it is not a crime to engage in an

adulterous relationship, or to engage in
fornication

Therefore, adultery or fornication may be

morally wrong depending on one’s beliefs, but
the adulterer or fornicator cannot be punished
under our laws

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The point, then, is that what amounts to a crime
in one country may not amount to a crime in
another country – for instance, prostitution is a
crime in Ghana but it is not necessarily a crime
in some countries

This buttresses our earlier point that it is not the

nature of the act or omission that characterizes
the perpetrator as a criminal, but whether the law
has proscribed such an act or omission as a
crime

Sometimes an act may be both a crime and at the

same time a civil wrong – e.g. the crime of
stealing is the same as the civil wrong of
conversion – in such a case, it is the nature of
the proceedings that determines whether it is
criminal or otherwise

On another score, crimes may be classified in

reference to their conceptual immorality or
inherent evil

So a crime may either be:

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  malum in se – plural mala in se
or
 malum prohibitum – plural mala prohibita

A malum in se crime is one that is wrong or evil

in itself

This refers to conduct that is thought to be

inherently wrong by nature – independent of
laws governing that conduct

That is, conduct that is considered universally to

be wrong, regardless of whether a law exists
concerning it and regardless of where it occurs –
e.g. murder is universally considered to be
wrong even in the absence of laws to that effect

A malum prohibitum crime is one that is wrong

because it is prohibited – that is, conduct that is
considered criminal only because it is prohibited
by law – without such prohibition it would not
be considered a crime

So a malum prohibitum crime may not on its

face appear to be morally reprehensible in the

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absence of a law prohibiting that conduct – e.g.
driving on the left side in Ghana is not morally
wrong per se – it is a crime because the law says
so

So you will find Wills J. say in Collman v. Mills

that there is a distinction between things
criminal in themselves – that is morally wrong
and wicked, and things which are made criminal
and are prohibited under a penalty simply for the
public good

Crimes are also graded according to their gravity

and the seriousness society attaches to them. So
we have:

i. Offences punishable by death

ii. First degree felonies
iii. Second degree felonies
iv. Misdemeanours
v. Offences Punishable by fines

Offences punishable by death – also known as

capital offences – are considered the most

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serious offences – e.g. murder, treason and high
treason

The next in line in terms of gravity are first

degree felonies – in Ghana, first degree felonies
normally attract a prison term of up to life
sentence – examples are rape, and causing harm
with the use of an offensive weapon

Second degree felonies are considered less in

gravity than first degree felonies – in Ghana,
they attract a term of imprisonment not
exceeding 10 years – examples abortion, causing
harm, and threat of death

However, offences involving dishonesty, though

second degree felonies, attract sentences of up to
25yrs - these include stealing, robbery,
defrauding by false pretences etc.

Misdemeanours are less in gravity than felonies

– in Ghana, misdemeanours normally attract a
term of imprisonment not exceeding 3 years –
examples are threat of harm, assault, and
abduction

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Then again, a fine (sum of money) may be
imposed in addition to a prison term

However, where the only penalty for an offence

is a fine, then the offence is a very minor one –
examples are wilful neglect to fill up or transmit
the certificate of a marriage to the Registrar of
marriages; indecent inscriptions like
advertisements in relation to venereal diseases or
an advertisement claiming aphrodisiac
properties for a preparation without the
authorization of the Minister for Health etc.

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The Principle of Legality

The power of the State to punish is not limitless

The criminal law itself should be based in

legality

Thus, the criminal law should be written to

afford the citizen adequate notice of what is
expected of him so as to conform to them

This principle is encapsulated in the Latin

maxim nullum crimen, nulla poena sine lege
praevia lege poenali – shortened to nullum
crimen, nulla poena sine lege - No crime is
committed and no punishment can be imposed
without the act having been prohibited and the
punishment having been prescribed by a law
enacted before the act was committed

The maxim is divided into two parts:

 nullum crimen sine praevia lege

 nulla poena sine praevia lege

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Nullum crimen sine praevia lege

An act or omission to act is only a crime if

before the act or omission was committed, there
was a law declaring the act or omission in
question as a punishable offence

Article 19(5) of the Constitution, 1992

A person shall not be charged with or
held guilty of a criminal offence
which is founded on an act or omission
that did not at the time it took place
constitute an offence

What if you engage in a transaction which is not

criminal at the time but before you could
conclude the transaction, a law is passed in the
interim, not directly prohibiting your further
action, but in terms that criminalizes a manner in
which if you act would inculpate you – and you
proceed subsequently to act in that manner to
conclude the transaction – should you be held
criminally liable although your initial act was no
crime and your subsequent act was no crime per

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se but the manner in which you chose to act is
purportedly criminal?

For instance, if you sign a contract on behalf of

the State and then before you execute the terms
of the contract, a law is passed in the interim not
directly prohibiting the execution of the contract,
but in terms that criminalizes wilfully causing
financial loss to the State – should you be held
liable if you proceed to execute the contract and
it causes loss to the State, if the loss was caused
wilfully?

This question arose in Tsatsu Tsikata

Tsatsu signed contract of guarantee in 1991
Law on wilfully causing financial loss to the
State came into force in 1993
Tsatsu made payments in 1996

Two situations arise here:

1.if the signing of the guarantee in 1991 is
the criminal act, then a case of
retroactive use of legislation arises;

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 2.if the payments in 1996 constituted the
offence charged, there would be no
question of retroactivity;
3.is it logical or practical to separate the
execution of the guarantee agreement
and the payments made in satisfaction of
the guarantee obligations?

The majority held:

The genesis of the background to a criminal
case may be one thing; the immediate facts
and the criminal provisions upon which the
charge is legally founded may be
another...although there is no specific law
which makes the execution of the guarantee
agreement criminal, there is something else
in the circumstances under which the
execution was done that would amount to a
criminal act on the part of a public official,
such as a criminally reckless decision to
make payments in the face of credible
evidence that the moneys would never be
repaid to the guarantor corporation, or that
the transaction in question was entered into
recklessly and unprofessionally

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The nullum crimen sine praevia lege principle
was well honoured in Hassan, where the
appellant was found in the possession of Indian
Hemp, and was convicted by the Circuit Court
on a charge of possessing Indian Hemp, contrary
to the Pharmacy and Drugs Act, 1961 (Act 64).
The particulars of offence read:

Fatayi Hassan on the 20th day of January,

1961, in Accra in the Eastern Region was in
possession of 800 grammes of Indian Hemp

However, Act 64 came into force on 13 June

1961. In allowing the appeal against the
conviction of the accused, the Supreme Court
observed that on 20 January 1961 (the date
captured on the charge sheet), there was no
offence like possession of Indian Hemp.

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Nulla poena sine praevia lege

An act or omission to act is only a crime if a

specific penalty has been previously prescribed
for that act or omission

In Ghana, this principle is carried further on two

legs:
 the offence must be written in a law and
defined
 a penalty must be prescribed for the offence

Article 19(11) of the Constitution, 1992

No person shall be convicted of a
criminal offence unless the offence is
defined and the penalty for it is
prescribed in a written law

The rationale is that it is unfair to punish

someone unless he has a chance to know the law
and to conform to it

In line with this principle, English Acts of

Attainder (punishing persons for acts not illegal

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prior to the Act) fell into disuse in the 18th
Century

This rule has been written into international law

– UNDHR (1948)

In effect, Article 19(11) outlaws unwritten

criminal law – thus common law crimes and
customary law crimes that have not been
reduced into statute have been outlawed

Contrast Article 19(5) & (11) with sec 9(2) of

PNDCL 78

The question arises under Article 19(11) as to

whether the law criminalizing a particular
conduct should incorporate a definition of the
operative words to put it beyond doubt as to
what is being criminalized

This question arose in Tsatsu Tsikata – Tsikata

contended that the offence of willfully causing
financial loss was unconstitutional since there
was no definition in the statute as to what was
meant by “willful”

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In rejecting this contention, the majority held
that:
Article 19(11) requires a “written law” of
crimes, i.e. the creation of crimes in a
written form but not a written law definition
of all words used in a criminal provision.
Not only would such a task prove futile or
impracticable; it would also ignore the fact
that no statute exists in isolation from the
general criminal law of any legal
system…internal definitions of words in a
statute is often done but this cannot be done,
and is not expected to be done, for each
word or term that is deployed in creating a
crime

But the pressing question is: is it reasonable to

insist that a word or phrase upon which or
around which a crime revolves should be
expressly defined if its meaning therein is
vague?

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Related to the principle of legality is the concept
of Overbreadth and Vagueness

All persons are entitled to be informed as to

what the law commands or forbids

That is, the law should tell us with reasonable

clarity what it expects of us – that is, law should
be reasonably precise, predictable and certain

That is to say, a statute is vague and overbroad

where it either forbids or requires the doing of
an act in terms so vague that men of common
intelligence must necessarily guess at its
meaning and differ as to its application

- See Tsatsu Tsikata

That is to say, the statute must provide an

ascertainable standard of guilt

The statute creating the offence must use

language which will convey to the average mind
information as to the act or fact which is
intended to be criminalized

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Justice Douglas remarked in the US case of
Papachristou v. City of Jacksonville that failing
to give a person of ordinary intelligence fair
notice that his contemplated conduct is
forbidden by statute is unconstitutional

The principle of legality is not limited to the

requirement that a statute must provide an
ascertainable standard of guilt – it has also been
extended to the provision of minimum
guidelines to govern law enforcement

So as Justice O’Connor said in the US case of

Kolender, Chief of Police of San Diego v.
Lawson, where the legislature fails to provide
such minimal guidelines, a criminal statute may
permit a standardless sweep that allows
policemen, prosecutors, and juries to pursue
their personal predilections

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The Rule against Double Jeopardy

No man should be punished twice for the same

offence

Once a person has been tried for an offence, he

cannot be tried again for the same offence,
whether his trial ended in an acquittal or a
conviction

Autre fois convict

Autre fois acquit

The rationale is that the criminal law seeks to

prosecute offenders not to persecute them – so
once a person has been tried and sentenced, he
cannot be punished again for the same offence
since to do so would amount to undue
oppression or persecution

- see Article 19(7)

Some guilty persons may slip through to

freedom but it is better than being put in double
jeopardy of the same offence

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The rule applies where, in his trial, the accused
was in peril in respect of the same set of facts –
for instance, under a charge of murder, the
accused would be in peril of being convicted for
manslaughter – so if he is acquitted, a fresh
charge cannot be brought for manslaughter
against him

On the other hand, where a person causes harm

to another, and the victim is still alive, the
accused is not in jeopardy of being charged for
murder at his trial for causing harm – if the
victim eventually dies, the accused may then be
charged for murder
- see sec 115 of Act 30

The accused must show that the first trial ended

in a final verdict of GUILTY or NOT GUILTY

A discontinuance, hang jury, or the entry of a

nolle prosequi is not a final verdict

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Punishment

From our almost tortuous attempt at defining

crime, we established that punishment is an
essential element of the criminal law – a statute
that purports to create criminal offences but with
no corresponding punishment for breach is no
criminal statute – thus, punishment is the
bedrock of the criminal law

What is Punishment?

No exact definition

Attempt at description – It entails the infliction

of suffering or some other unpleasant visitation
by a deliberate act of the authority of the State
on an offender after he has been lawfully
convicted for an offence

Indices
 punishment is inflicted on a person found
guilty of an offence – this suggests the
possibility that it may be inflicted on a
person who may not be factually culpable

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 it involves the infliction of some pain or
suffering or deprivation – this may take the
form of imprisonment, fine, or the
imposition of the performance of some
service – therefore, a pleasant visitation is
anything but punishment

 it must be inflicted deliberately or

intentionally by the authority of the State –
so if the pain, suffering, or deprivation is the
unintended consequence of the action of the
authority of the State, it is no punishment

 punishment must be meted to a person by

another – so if a person inflicts pain or
suffering or some deprivation on himself, it
does not qualify as punishment – self-
flagellation is no punishment – a self-
flagellant is a person who scourges himself
as a religious discipline or as a sexual
stimulus – Opus Dei practice of
mortification of the flesh?

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 punishment is related to the commission of a
crime – it cannot be imposed in a vacuum –
it must be the consequence of the
commission of a crime – therefore,
punishment cannot be imposed before the
commission of a crime – Minority Report?

 some writers suggest that a feature of

punishment is that it symbolizes an
expression of disapproval for the violation
of a rule
- thus, an act of State may have the
same undesirable consequence but
such an act is not necessarily
punishment unless it symbolizes the
disapproval of the State – for instance,
a tax and a fine are both geared
toward collecting money from the
citizen but while the collection of a
tax does not connote disapproval, a
fine carries with it the attribute of
disapproval – that is to say, the
imposition of a tax is merely
regulatory while the imposition of a
fine is prohibitory

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 - in the words of that great common law
lawyer, James Fitzjames Stephen “the
infliction of punishment by law gives
definite expression and a solemn
ratification and justification to the
hatred which is excited by the
commission of the offence”

 from the foregoing, punishment is

distinguished from non-punitive penalties
like flunking an exam, disqualification, off-
side, spot-kick, dismissal etc. – i.e.
punishment is a strict and narrow form of
penalty

Purpose/Aims of Punishment

Why do we institute punishment for offenders?

- There is yet no known method of

ensuring compliance with the criminal
law, other than punishment

Yet we do not punish for its sake – punishment

is intended to achieve a desired object

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Justification of Punishment

What purpose does punishment serve in society?

 some say it vindicates the law

 others say it upholds the majesty of the law

 others maintain it encourages us to obey the

law

This brings us to the theories of punishment

Theories of Punishment

Two main theories

i. retributive
ii. utilitarian

Retributive Theory

Two themes
i. classic retributive theory

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ii. proportionality theory

Classic Retributive Theory

Steeped in revenge – in the nature of Mosaic law

– eye-for-an-eye – the offender should be paid
back in his own coin – lex talionis – the law of
retaliation (under which punishment should be
in kind)

However, this theory is inapplicable to most

offences – the problem is how to ascertain the
degree of equivalence of the crime and the
punishment

The classic retributive theory is modified into

the –

Proportionality Theory

Punishment must fit the crime – that is to say,

the moral culpability of the offender justifies the
punishment

40
Since, punishment must fit the crime, it cannot
be imposed out of all proportion to the offence
committed

This necessarily calls for an examination of the

circumstances of the commission of a crime
including the role played by the victim to trigger
the offence

So in Melfa, the appellant had gone to a pub to

have a drink and was sitting at a table quite
different from that at which the deceased, an
international footballer, was sitting with his
friends.
The deceased had a quarrel with one of his own
friends and a fight ensued between them. The
appellant did what any reasonable man would
do, by trying to separate the two. The deceased
picked upon the appellant and beat him up and
threw him onto a fence. Friends who were
present advised the appellant to leave.
The appellant's version was that he immediately
left the bar, but was shortly after followed by the
deceased who had removed his shirt and who
attacked him again by beating him up. In the

41
face of the beatings, he picked up a broken
bottle and warned the deceased to stop beating
him but the deceased still advanced and he
stabbed him.
He was convicted for manslaughter and
sentenced to 8yrs in prison. The only reason the
trial judge gave for this sentence was that this
was a crime of violence
On appeal, it was held that each crime of
violence should be considered on its own merits
when inflicting penalty on the perpetrator and
that if the trial judge had considered all the facts
in relation to the crime he would not have
imposed such a long sentence.
This was because it appeared quite clearly from
the evidence that the deceased was a man of
violent temper and he was the aggressor in this
unfortunate incident. In the circumstances, the
sentenced was reduced to 4 yrs

Thus, even when imposing utilitarian sentences,

judges are sometimes at pains to stress that the
punishment must be proportional to the offence
committed

42
So in Apaloo, it was held that the general
principle is that a sentence of imprisonment,
even though intended specifically as a general
deterrence, must not be excessive in relation to
the facts of the offence

Then again, in Kwadu, it was stressed that the

imposition of punishment must be harsh enough
to be a deterrent and short enough to satisfy the
reformative element in criminal justice

The focus of retributivism is on different degrees

of punishment for different degrees of crime

Here, the relationship considered is that between

the degree of punishment for different crimes
and not that between particular crimes and their
punishment – that is, relative gravity of crime
and punishment

A retributivist punishes because the offender

deserves it – this is in contrast to utilitarian
views that base punishment on the ideal of the
greater good of preventing future offences and

43
also in contrast to justifying punishment on the
good it does the criminal

Under the retributive theory the consequences of

punishment are irrelevant to its justification –
what is of utmost importance is the suffering
inflicted on the offender and not the good it may
do society or the offender

Utilitarian Theories

Utilitarian Theory – accredited to the English

jurist, Jeremy Bentham – law must ensure the
greatest good for the greatest number of people
– thus, law must produce results for the
happiness of the greatest number

It also posits that the moral worth of an action is

determined by the outcome – i.e. the end
justifies the means

The utilitarian theories of punishment therefore

are to the effect that punishment must be a
means to an end – it should not be imposed for

44
its sake – it must serve a purpose – the purpose it
serves being the end

Here, the focus is on the beneficial

consequences of punishment and not really the
suffering visited on the offender

i. Deterrence

Punishment is imposed to communicate to the

community that such conduct would not be
tolerated – thereby supposedly reducing the
incidence of crime

Here, punishment is said to reduce crime

through fear – that is, discouraging criminally
minded persons from engaging in similar
conduct in the future

So in Stewart, the court upheld a sentence of

3yrs’ imprisonment passed upon a boy of 16yrs
for robbing and beating up two elderly women
in a sub-post office, with a hammer. Lord Parker
CJ said that their Lordships were quite prepared
to accept the view that the appellant was

45
unlikely to commit a similar offence again, so
that the best course, from the appellant’s point of
view, would be for him to continue his education
and to receive some disciplinary training.
However, a substantial period of imprisonment
was the only appropriate penalty in order to
show young men that they could not commit this
kind of offence with impunity

We have general deterrence and specific

deterrence

General Deterrence focuses on the effect of

punishment on society at large

Such sentences tend to be severe – the offender

is made a sort of scapegoat or a sacrificial lamb
to convey a message to society – often, such
sentences tend to be out of all proportion to the
crime

Here, the special circumstances of the offender

are often taken into consideration thereby
leading to the imposition of harsher sentences
than would otherwise have been imposed – for

46
instance, if a person in authority commits a
crime or someone who should have known
better, like a law enforcement agent, commits a
crime, a harsh sentence is often imposed

So in Kwashie, where police officers ceased

contraband goods and used them for their own
selfish designs, it was held on appeal that since
the offence was of a very grave nature, the
sentence must not only have been punitive but it
must also have been a deterrent or exemplary in
order to mark the disapproval of society of such
conduct by police officers.
And that when a court decides to impose a
deterrent sentence the value of the subject-
matter of the charge and the good record of the
accused become irrelevant.
In determining a sentence it is proper for a court
to consider, on the one hand, the social or
official position of the offender, and on the
other, that the offence may be aggravated by
reason of such position. The trial judge was
justified in taking the official position of the first
appellant into consideration in passing an
exemplary sentence.

47
Specific Deterrence seeks to discourage the
individual offender from repeating the
commission of a crime – that is, it seeks to
prevent recidivism

ii. Prevention

The focus here is removing the individual

offender from society to render him physically
incapable of committing further crimes

iii. Reform and Rehabilitation

This is aimed at assisting the offender to turn a

new leaf by adopting a lifestyle different from
the criminal one through moral education

iv. Atonement and Reparation

Here, the offender is made to compensate the

victim for the damage or injury resulting from
his criminal conduct

48
Perhaps the only such instance is section 35(1)
of the Courts Act, 1993 (Act 459) which
provides that:
Where a person is charged with an offence
before the High Court or a Regional
Tribunal, the commission of which has
caused economic loss, harm or damage to
the State or any State agency, the accused
may inform the prosecutor whether the
accused admits the offence and is willing to
offer compensation or make restitution and
reparation for the loss, harm or damage
caused.

Critique of the Theories

The retributive theory is criticized for focusing

too much on the punishment – it is said that
punishment for its sake does no good – that,
punishment requires some good to justify it

- But does not punishing the offender

achieve some good – i.e. justice?

49
The utilitarians insist that there is no such thing
as just deserts – and for the highly religious
utilitarians they maintain that it is only God
alone who can know what people truly deserve –
that is, are we not playing God by determining
what people deserve?

They argue further that we are all guilty – so that

if we each got what we truly deserved, we would
all be punished – based on scripture – no one is
holy, no, not one – judge not, lest thou shall be
judge – he that is without sin among you, let him
cast a stone at her
- But is this not a purely metaphysical
argument?

The retributivists would also remark, in practice,

all punishment is essentially retributive because
it is imposed in response to the commission of a
crime and not because it could prevent crime

It is also said that punishment itself seldom

reforms the criminal and it never deters others

50
The utilitarians would ask the retributivists – are
you not being barbaric by inflicting suffereing
on an offender, regardless of the consequence?
Aren’t you merely punishing for the sake of
punishment?

The retributivists would respond – is it wrong to

punish an offender for the sake of punishment –
is that not a desirable consequence?

The retributivists would in turn ask the

utilitarians – if your aim is to achieve desirable
consequences by inflicting suffering on the
offender, and not because the offender has
committed a crime, then why don’t you punish
an innocent man, by pretending that he is guilty

To this, the utilitarians would respond, that their

focus is on punishment of the morally guilty

Therefore, it would appear that no theory of

punishment is entirely foolproof – the theory of
punishment adopted in each case is largely
informed by the desired object

51
As a result, some writers have suggested a dual
justification of punishment
- Teleological justification
- Entitling justification

Teleological justification of punishment –

rightness of an act is determined by its end – i.e.
justification by a purpose or design

Entitling justification of punishment – the

problem of avoiding injustice to individuals in
the pursuit of goals

Which of the theories is teleological and which

is entitling?

Distribution of Punishment

Who deserves punishment?

- Theorists in both schools agree that it
is the guilty – i.e. those who have
committed offences who deserve to be
punished

52
 - Essentially, punishment looks to past
conduct

How much punishment is deserved?

- Too much punishment would be
unfair to the offender and too little
punishment would be unfair to society
- Retributivists – “let the punishment fit
the crime”
- Utilitarians – impose punishment that
would achieve some future benefit to
society

When is punishment deserved?

53
Requirements of Criminal Liability

In law, liability (in general) may be

 strict
 absolute
 vicarious, or
 based on fault

Where liability is based on fault, a person’s

actions or omissions by themselves would not
render him culpable unless he is morally
blameworthy for that act or omission

Liability is said to be strict as long as it can be

shown that a person’s act or omission has
resulted in a particular undesired result

In this case, it is immaterial whether he was at

fault or whether he is morally blameworthy –
however, he is afforded defences, if any defence
is available to him

Liability is absolute where the defendant’s

moral blameworthiness is immaterial and he is
afforded no defence whatsoever

54
Vicarious liability involves holding a person
responsible for the acts or omissions of another

In criminal law, the general rule is that there

cannot be liability without fault or
blameworthiness

That is to say, the commission of a prohibited

act does not automatically result in a conviction

Before a person is convicted of a crime, the law

requires the ascertainment of whether he was at
fault or whether he is morally blameworthy –
this is an inquiry as to the state of mind which
accompanied the commission of the act

In the words of Salmond:

It is not enough that a man has done some
act which on account of its mischievous
results the law prohibits; before the law can
justly punish the act, an inquiry must be
made into the mental attitude of the doer.

55
In effect, in criminal law two conditions must be
fulfilled before a person’s guilt can be
established, namely:
i. a physical act, and
ii. a requisite mental element

That is to say, it must be shown –

 that the person has committed a prohibited

act (i.e. the physical element of the offence),
captured in the Latin phrase actus reus, and

 that the commission of the prohibited act

was accompanied by a prohibited mental
state or state of mind (i.e. the mental
element of the offence), captured in the
Latin phrase, mens rea (guilty mind)

The two elements must coincide in respect of the

same event for the act to amount to a crime – if
either element is absent, then the general rule is
that no crime has been committed

Thus, in general, there is a duality about

criminal culpability - the mens must be rea in

56
respect of the commission of a prohibited
conduct before criminal liability can be
established

This finds expression in the Latin maxim actus

non facit reum nisi mens sit rea – an act does
not make a man a criminal unless the mind
be guilty

The actus reus and the mens rea differ from

offence to offence

The requirement of mens rea (guilty mind)

signifies the criminal law’s insistence on moral
culpability – i.e. the making of moral choices as
to whether to engage in an act

57
Actus Reus

The actus reus may be –

 an act of commission or omission simpliciter
 or an act considered together with the
surrounding circumstances – for instance,
with respect to the offence of stealing, it is
not merely the act of taking an item
belonging to another that is prohibited, but a
taking under some circumstance, i.e. without
the consent of the owner

Sometimes the actus reus involves a mental

component
- for instance, in the case of the offence
of possession of narcotic substances,
mere physical or manual possession
does not render the accused culpable –
the actus reus includes a mental
requirement that the accused had
knowlegde of the nature and quality of
what he possessed

Sometimes the actus reus does not require the

doing of an overt act – a negative course of

58
conduct sometimes constitutes the actus reus –
in this situation the not doing becomes the actus
reus – this is what is termed, criminal omissions

Sometimes, the actus reus is neither constituted

by an act or omission, but by a status – the state
of being in something or being something – e.gs
are the old common law offence of being a
vagrant, and the offence of possession

No matter the form it takes, the actus reus must

be committed voluntarily for liability to arise –
that is the person’s muscular contractions and
movements must be accompanied by his
cognitive faculties – that is, the accused must
engage in the act on his free will or choice, and
not out of external pressure or force –
Okponglo/IPS example

The insistence on the voluntariness of the

commission of the actus reus implies that
involuntary acts cannot form the basis of
criminal liability

59
Thus, for instance, acts done in situations of the
absence of volition will not do – these situations
include situations of duress or coercion or where
a person is not in control of his mental faculties
– instances include:
- where a person is employed as an
involuntary agent in the commission
of a crime
- acts done in situations of
unconsciousness like somnambulism
or epileptic fit

So in Charlson, the appellant invited his son to a

window sill to watch a rat and he struck his
son’s head with a hammer resulting in grievous
injuries.
It came up that the appellant was a rather doting
father and there was no conflict between him
and the son.
Medical evidence suggested that the appellant
may have been in a seizure of epilepsy at the
time, and it was also shown that there was a
history of such seizures in the appellant’s
family.
The principle was laid down:

60
 …in the case of certain diseases, a person
suffering from the disease may be deprived
of the control of his actions. A man in the
throes of an epileptic fit does not know what
he is doing. If a friend bends over to assist
him, and in the midst of his fit the epileptic
grips that friend by the throat, not knowing
what he is doing, and in so doing throttles
the friend and causes his death, no offence
has been committed against the criminal
law; because the actions of an epileptic are
automatic and unconscious and his will or
consciousness is not applied to what he is
doing…

Involuntary acts are sometimes referred to as

automatism – that is, an act which is done by the
muscles without any control by the mind such as
a spasm, a reflex action or a convulsion, or an
act done whilst suffering from concussion or
whilst sleep-walking
- Bratty

61
However, an act is not to be regarded as
involuntary simply because the doer does not
remember it – after-the-fact amnesia is no
defence if the doer was conscious of what he
was doing at the time in question
- Bratty

It should also be noted that an act is not

involuntary simply because the doer could not
control his impulse or temperament – the doer
will be culpable as long as he knew what he was
doing
- Bratty

Then again, an act is not involuntary simply

because it is unintentional or that its eventual
consequences were unforeseen
- Bratty

Still on the point of voluntariness, sometimes the

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

62
 - here, although their actions are
involuntary so to speak, yet they
brought it upon themselves through
their own irresponsibility – thus, the
general attitude of the law is to view
such so-called involuntary conduct
with skepticism

So in Hennessy, the appellant was found by the

police with a stolen Ford Granada. As he was
about to spark off a police officer took the key
from the ignition lock.
When he was being taken to the police station,
he engaged in a hearty conversation with the
police.
Indeed, he went as far as to say that had the
ignition key not been removed, he would have
given the police a real run for their money.
All this while he appeared cheerful and
intelligent. However, he later appeared to be
confused and dazed and he claimed that he was
diabetic and had forgotten to take his insulin so
he lost control of his senses and he did not know
that he was stealing a car.

63
A medical doctor testified that when the
appellant was tested, his blood sugar had been
high at 22 plus millimolecules per liter, the
normal being 8 or 9. In this state, the appellant
was prone to hyperglyceamia resulting in
drowsiness, loss of consciousness and coma.
However, the appeal was unsuccessful.

We made the point earlier that sometimes a

failure to act, i.e. omission, can be the basis of
criminal liability – this normally arises where a
person under a duty to act, under the
circumstances, fails to act

A duty to act may arise in several instances

- a duty to act may be imposed on a
person by law
- a duty may also arise where one enters
into a contract to perform a task
- other times, a duty is deliberately
assumed by a person in circumstances
recognized by the law as giving rise to
a duty
o for instance, if one decides to care
for a helpless person, that decision

64
 to assist stands as a message to the
whole world that one has taken
charge of the situation – therefore,
one may not abandon the helpless
person because the law would
enforce the decision to assist

However, an omission to act would not inculpate

a person where that failure to act was not by a
conscious exercise of will or by a deliberate
decision

So in Kilbride v. Lake, the accused drove and

parked a car on a street. In his absence, someone
removed a warrant of fitness (or roadworthiness)
he was required to display on the windshield
He was charged with permitting a car to be on
the road while failing to display a warrant
It was held that a person cannot be made
criminally responsible for an omission unless it
was in circumstances where there was another
cause open to him. If this condition is absent,
any omission must be involuntary or
unconscious – hence no liability arises

65
Causation

We have established that for a crime to be made

out there must be a coincidence of the physical
prohibited act, the actus reus and the prohibited
mental state, the mens rea

Sometimes, its so not so easy to establish

conclusively whether the accused is responsible
for the actus reus due to the existence of a
combination of factors that operate to make such
a definite determination unclear

Yet, for a person to be found culpable for a

crime, there must be established a causal
connection between the accused and the act or
omission that constitutes the actus reus

In the absence of this link, a person cannot be

held liable for the particular offence

This is where the concept of causation comes in

66
The concept of causation attempts to ascertain a
link between the accused and the actus reus –
that is to say, it attempts to ascertain whether a
person is responsible for bringing about a
prohibited event or state of affairs

Hart and Honore posit that on a primary level,

human beings bring about desired alterations in
objects by making appropriate movements of
their bodies – these, they say, are captured by
transitive verbs like push, pull, bend, twist,
break etc.

On another level, human beings bring about

secondary changes, not only in the objects
actually manipulated, but in other objects

In law, our concern is the result of our primary

actions – the result being the desired secondary
change

The desired secondary change is the effect and

the cause of the secondary change is our primary
action in bringing about that effect – so we cause

67
injuries by blows; glass to break by throwing
stones etc.

In other words, causation looks to our producing

one thing by the doing of another thing

In the criminal law, to cause, is to bring about an

event or state of affairs by one’s own act or
endeavor

Causation, therefore, is the result of a person’s

action or inaction – the law looks to see whether
we can link the event with one’s act

In establishing a causal link between the accused

and the actus reus, the law does not engage in
logical sequencing – that is, since this event
followed the other then that other must have
caused the event

In the business of the ascertainment of a

connection or otherwise between the accused
and the actus reus, we do NOT say, post hoc
ergo propter hoc – “after this, therefore
because of this”

68
This is said to be a logical fallacy that asserts or
assumes that if one event happens after another,
then the first event must be the cause of the
second – for e.g. A’s blow was followed by B’s
death, therefore A’s blow caused B’s death

On another score, the criminal law does not

concern itself with strict physical scientific
analysis in the determination of the cause of an
event

 therefore if A sets fire to a house, we will

not remove ourselves six steps from
practicality by saying that the fire was not
caused by A but by the presence of oxygen
that kindled the fire – yet in strict scientific
analysis, it is indeed the presence of oxygen
that caused the fire

In other words, in law, we are not concerned

with the strict scientific cause of events – rather,
we are concerned with the person who set the
chain of events in motion to produce the final
result

69
Causation is governed by sections 13, 64 and 81
of Act 29

By section 13(7), it is a question of fact whether

an event is fairly and reasonably to be ascribed
to a person’s act

To establish the responsibility of the accused for

the actus reus, it must be proved that the
accused caused or contributed to cause the
prohibited event

So if no connection can be established between

the act of the accused and the ensuing event, the
accused will be exculpated from liability

A case in point is Yeboah – The accused was

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

70
The lesson here is that mere suspicion will not
do

What about the situation where the acts of

several persons cause or contribute to cause an
event?

This is the area of Joint Causation

Where the several acts of several persons result

in a proscribed event or state of affairs, it is the
act that is proximate to the occurrence of the
event or state of affairs that may be instructive

Thus, section 13(3) provides that:

Where an event is caused by the acts of
several persons acting jointly or
independently, each of the persons who
intentionally or negligently contributed to
cause the event has…caused the event…

So as the illustration in the Act goes…

See also Waters

71
It should be noted that for the accused to be
culpable his act must not be a purely trivial
cause of the event – this is what is known as the
defense of minimal causation – captured in the
Latin phrase – de minimis contribution – that is
trivial or minimal contribution

This comes from the maxim de minimis non

curat lex – the law does not concern itself with
trifles

That is to say, a trivial or de minimis

contribution operates to exculpate the accused
from liability

See Cato, where it was explained that a trivial or

minute contribution to causing an event will not
suffice for the purpose of establishing criminal
liability
Liability can only be founded on substantial
cause

72
In all these, it must be stressed that there must be
an unbroken chain of causation between the act
of the accused and the event

Thus, although the accused may have set a chain

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

This is the concept of novus actus interveniens

– a new intervening act

The question here is this: can you hold a man

responsible for doing an act sufficient to
produce harm, with the intention of producing
the harm, even if the act strictly cannot be said
to have caused the harm?

For instance, A., intending to kill C, inflicts a

serious wound on C. B., without being asked,
joins in and actually kills C. B’s culpability is
certain, but what about A?

73
On this point, section 13(4) provides:
A person shall not be convicted of having
intentionally or negligently caused an
event if, irrespective of the act of the
person and the acts of any of the persons
acting jointly with that person, the event
would not have happened but for the
existence of a state of facts, or the
intervention of any other event or of any
other person, the probability or the
existence or intervention of which other
event or person the accused did not take
into consideration, and did not have
reason to take into consideration

Under this principle, the chain of events is

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

So as the illustrations in the Act go…

74
Under what specific circumstances may we
conclude that an intervening event has broken
the chain of causation to exculpate the accused
from liability?

We would consider several circumstances that

have come up for determination in the evolution
of the criminal law

Inquiry 1

Does the resort to the use of an involuntary

agent break the chain of causation?

An involuntary agent is defined under section

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

The rule is that a person who intentionally

causes an involuntary agent to cause an event,
shall be deemed to have caused the event – s.
13(1)

75
The rationale is that an involuntary agent does
not possess the requisite mens rea – the mens
rea at all times remains with the person who
resorted to the use of the involuntary agent

So as the illustrations in the Act go…

So in Michael, the accused bought a bottle of

laudanum (a solution of opium and alcohol
formerly used as a pain killer) and handed it to a
woman named Stevens with instructions to
administer it to the child of the accused. Stevens
left the bottle on the mantelshelf and another
child of five picked it and administered to the
intended child and it died. It was held that the
accused was guilty of murder since the
administration of the poison by an unconscious
agent was equivalent to administration by the
accused herself

See also Saunders

76
Inquiry 2

Does an act done by another, not out of a

legal duty, but out of a moral obligation to
assist the victim of a crime, operate to break
the chain of causation in respect of the events
set in motion by the accused?

Here the rule is that an act reasonably done to

rescue the victim of a crime or to render medical
assistance to him, does not operate to break the
chain of causation even if it contributes or
actually causes the ensuing event

This is so even if the rescuer even if the actor is

not legally bound to help, does not relieve the
accused from liability, if death occurs from the
attempt to rescue or to render assistance

In tort law for instance, Justice Cardozo

remarked in Wagner v. International Railway:

77
 Danger invites rescue. The cry of distress is
the summons to relief. The law does not
ignore these reactions of the mind in tracing
conduct to its consequences. It recognizes
them as normal. It places their effects within
the range of the natural and probable…The
risk of rescue, if only it be not wanton, is
born of the occasion. The emergency begets
the man. The wrongdoer may not have
foreseen the coming of a deliverer. He is
accountable as if he had.

In terms of section 13(4), the accused ought to

have contemplated that some person, upon
seeing the victim writhing in pain from the harm
he has visited upon the victim, would attempt to
rescue or render assistance to the victim

So if in the attempt to render assistance to the

victim or to rescue him, some harm results, the
person who committed the original sin will still
be held liable

78
So in Smith, the appellant, who was a soldier,
stabbed another soldier in a barrack-room fight.
There followed a series of unfortunate
occurrences. A fellow-member of his company
tried to carry him to the sick bay but he tripped
over a wire and dropped him. He picked him up
again, went a little farther and fell with him
again. He left the victim on the ground and went
for help. At the sick bay, the victim was given
medical treatment which turned out to be
inappropriate and he died. The appellant was
convicted for murder.

Lord Parker J. opined that:

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

79
 the original wound merely part of the history
can it be said that death does flow from the
wound.

Inquiry 3

Does an act done to avoid detection of an

earlier act operate to break the chain of
causation?

The question arises whether a person should be

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

80
For e.g. A, intending to kill B, hits him on the
head with a crow-bar. However, unknown to A,
the hit did not kill B as he intended but merely
rendered him unconscious. A, then, laboring
under the mistaken belief that B is dead,
proceeds to place him under a grove, in an
attempt to cover up the death of B. B, then, dies
of exposure under the grove – is A liable for the
death of B? – the difficulty here is that the
second act was done without the requisite mens
rea

The rule here is that, A would still be liable and

the act of concealment will not be held to have
broken the chain of causation

So in Thabo Meli, the appellants, in accordance

with a preconceived plan, took a man to a hut,
gave him beer so that he was partially
intoxicated, and then struck him over the head.
They, believing him to be dead, took his body
and rolled it over a cliff, dressing the scene to
make it look like an accident. In fact, the man
was not then dead, it being established from
medical evidence that the final cause of his

81
death was exposure when he was left
unconscious at the foot of the cliff. The
appellants contended that the two acts were
separate acts, and that, while the first act was
accompanied by mens rea, it was not the cause
of death. But that the second act, while it was
the cause of death, was not accompanied by
mens rea, and that, therefore, they were not
guilty of murder. The court rejected this
argument.
Lord Reid observed that:
It appears to their Lordships impossible to
divide up what was really one series of acts
in this way. There is no doubt that the
accused set out to do all these acts in order
to achieve their plan, and as part of their
plan; and it is much too refined a ground of
judgment to say that, because they were
under a misapprehension at one stage and
thought that their guilty purpose had been
achieved before, in fact, it was achieved,
therefore they are to escape liability

82
Inquiry 4

Does the existence of a co-existing

circumstance operate to break the chain of
causation?

This is where the victim suffers from some

illness or condition which might probably cause
his death and the accused applies a blow to
ignite the disease or condition to hasten his
death – does the existing circumstances of the
disease or condition operate to break the chain
of causation?

The law takes the position that you Take Your

Victim As You Find Him, also known as the
egg-shell skull, or thin skull principle

It is said that since we are destined or fated to

die at some time, every instance of killing is an
instance of accelerating death – therefore no is
allowed to play God by determining how long a
person should live – therefore hastening a
person’s death by as little as 3 minutes is still
criminal homicide –

83
Therefore, it is no defence to assert that the
victim had a pre-existing condition (like a weak
heart) that made him more susceptible to death

Thus, the law posits that in harming your victim,

you should assume that his skull is as thin or as
fragile as an egg-shell

So in causing a person’s death, you will not be

heard to say that other people, subjected to the
same kind of treatment, would not have died

The law’s response is that “You take your

victim as you find him, warts and all.”

A long time ago, Matthew Hale posited that “if a

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

84
So sec 64(a) provides that
the death of a person is caused by harm,
if by reason of the harm, death has
happened otherwise or sooner, by
however short a time, than it would
probably have happened but for the harm

Sec 64(b) also follows up with the provision

that:
it is immaterial that the harm would not
have caused the person’s death but for
the infancy, old age, disease, intoxication,
or any other state of body or mind of that
person at the time when the harm was
caused

So in Twum, the appellant hit the deceased, an

able-bodied and healthy looking policeman, in
the face. The deceased fell down and bled from
the nose and mouth and he died the next day.
The medical evidence showed that apart from
the cracked skull resulting from the blow, the
deceased had oedima of the lungs which could
have killed him later. It was held, on appeal, that

85
despite the evidence of oedima, the blow was the
proximate cause of death

But what if there is no pre-existing condition

in the victim like a disease, infancy,
intoxication or weakness in body constitution
– but rather, the victim refusing treatment
after the harm has been caused?

A victim may refuse treatment on religious

grounds – for instance, Jehovah’s Witnesses
abhor blood transfusion – so what if you cause
harm to a member of the sect and he refuses to
undergo blood transfusion, which is necessary to
heal him, and he dies as a result – will the
accused be liable?

What about some spiritual churches that believe

strictly in faith healing and therefore refuse
conventional treatment?

On another score, what if the victim chooses her

form of treatment and refuses to undergo the
conventional treatment?

86
Then again, what if victim does take not proper
care of herself after the harm has been caused
and she dies as a result?

In all these cases, the law is reluctant to find that

the failure on the part of the victim to observe
proper precautions for her own health, or her
refusal to undergo medical treatment, breaks the
chain of causation

Thus, the general rule is that ordinarily the

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

Under our law, the want of proper care by the

victim breaks the chain of causation only when
there was extraordinary neglect on the victim’s
part to attend to his wounds

In other words, the victim’s action or inaction

after the infliction of harm does not break the
chain of causation unless the victim’s behavior,
after the harm is caused, is unreasonable

87
So section 64(c) provides that:
It is immaterial that the harm would not
have caused the person’s death but for
the refusal or neglect of that person to
submit to or seek proper medical or
surgical treatment, or but for the
negligent or improper conduct or manner
of living of that person, or of treating the
harm, unless the person so acting was
guilty of a wanton or reckless disregard of
that person’s own health or condition

Thus, the catch is that the victim’s refusal to

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

The question is: what amounts to wanton or

reckless disregard for one’s health or condition?

The Act does not contain a definition or an

explanation of these terms

88
We will consider several cases in which the
issue arose

The first is Holland – in that case, the accused

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

On these facts, would you say that the behavior

of the victim amounted to a wanton or reckless
disregard of his health or condition?

Well, it was held that the death of the victim was

a consequence of the original assault by the
accused

This is very typical of what I said previously that

the law is reluctant to find that the failure on the
part of the victim to observe proper precautions

89
for her own health, or her refusal to undergo
medical treatment, breaks the chain of causation

The second case is Blaue and it gets even more

interesting

The victim was a girl of 18. She was a Jehovah’s

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

90
Lawton LJ had this to say:
The physical cause of death in this case was
the bleeding into the pleural cavity arising
from the penetration of the lung. This had
not been brought about by any decision
made by the deceased girl but the stab
wound. Counsel for the appellant tried to
overcome this line of reasoning by
submitting that the jury should have been
directed that if they thought the girl’s
decision not to have a blood transfusion was
an unreasonable one, then the chain of
causation would have been broken. At once
the question arises – reasonable by whose
standards? Those of Jehovah’s Witnesses?
Humanists? Roman Catholics? Protestants
of Anglo-Saxon descent? The man on the
Clapham omnibus? But he might well be an
admirer of Eleazar who suffered death rather
then eat the flesh of swine or of Sir Thomas
Moore who, unlike nearly all his
contemporaries, was unwilling to accept
Henry VIII as Head of the Church in
England. Those brought up in the Hebraic

91
 and Christian traditions would probably be
reluctant to accept that these martyrs caused
their own deaths…
It has long been the policy of the law that
those who use violence on other people must
take their victims as they find them. This in
our judgment means the whole man, not just
the physical man. It does not lie in the
mouth of the assailant to say that his
victim’s religious beliefs which inhibited
him from accepting certain kinds of
treatment were unreasonable. The question
for decision is what caused her death. The
answer is the stab wound. The fact that the
victim refused to stop this end coming about
did not break the causal connection between
the act and the death.

Once again, we see an example of the judges’

fidelity to the policy of the law being reluctant to
find that the failure on the part of the victim to
observe proper precautions for her own health,
or her refusal to undergo medical treatment,
breaks the chain of causation

92
The issue arose again in Malcherek

This case involved 2 cases with similar

circumstances.
In the first case, Malcherek stabbed his wife nine
times with a kitchen knife causing a deep wound
in her abdomen which made hospital treatment
necessary.
After treatment the wife appeared to be
recovering but she collapsed in hospital and
shortly afterwards, her heart stopped beating.
Surgery was performed to remove a blood clot
from the pulmonary artery and thereafter the
heart, after not beating for 30 minutes, started to
beat again.
Because of the danger of brain damage resulting
from the period when the heart was not beating,
the wife was put on a life support machine. After
a while, she appeared to have suffered
irretrievable brain damage. After tests were
carried out to confirm that that was the position
it was decided to disconnect the life support
machine and shortly afterwards the wife was
declared to be dead.

93
In the second case, the applicant, Anthony Steel,
attacked a girl, stripped off much of her clothing
and bludgeoned her head with a 50Ib stone. On
the same day, she was taken to hospital and put
on a life support machine.
After a while, the doctors concluded that her
brain had ceased to function and the machine
was disconnected. Shortly afterwards she was
declared to be dead.
In both cases, the medical treatment given to the
victim was normal and conventional. Malcherek
and Steel were each charged with murder.
At each trial the judge, after hearing submissions
from counsel, decided to withdraw from the jury
the issue of the cause of the victim’s death, on
the ground that at the time of death the original
injuries inflicted on the victim were an operating
cause of death and that it was not open to the
jury to conclude that the accused had not caused
the death of his victim.
There were each convicted for murder. They
contended on appeal, on the ground that the
judge had been wrong to withdraw the issue of
causation from the jury because there was
evidence that the cause of death in each case was

94
the switching off of the life support machine and
the jury in each case should have been allowed
to consider that evidence.
The appeals were dismissed on the ground that
where competent and careful medical treatment
given to a victim for an injury inflicted by an
assailant included putting the victim on a life
support machine, the decision by the medical
practitioners concerned to disconnect the
machine because, by generally accepted medical
criteria, the victim was dead could not exonerate
the assailant from responsibility for the death if
at the time of death the original injury was a
continuing or operating cause of the death, for
then the disconnection of the machine did not
break the chain of causation between the
infliction of the original injury and the death.
Since there was no evidence that the original
injury inflicted on each victim had ceased to be a
continuing or operating cause of death at the
time of the victim’s death following
disconnection of the life support machine, it
followed that the issue of causation was, in each
case, properly withdrawn from the jury.

95
Lord Lane CJ observed that:
Nothing which any of the two or three
medical men whose statements are before us
could say would alter the fact that in each
case the assailant’s actions continued to be
an operating cause of the death. Nothing the
doctors could say would provide any ground
for a jury coming to the conclusion that the
assailant in either case might not have
caused the death. The furthest to which their
proposed evidence goes, as already stated, is
to suggest, first, that the criteria or the
confirmatory tests are not sufficiently
stringent and, second, that in the present
case they were in certain respects
inadequately fulfilled or carried out. It is no
part of this court’s function in the present
circumstances to pronounce on this matter,
nor was it a function of either of the juries at
these trials. Where a medical practitioner
adopting methods which are generally
accepted comes bona fide and
conscientiously to the conclusion that the
patient is for practical purposes dead, and
that such vital functions as exist (for

96
example, circulation) are being maintained
solely by mechanical means, and therefore
discontinues treatment, that does not prevent
the person who inflicted the initial injury
from being responsible for the victim’s
death. Putting it in another way, the
discontinuance of treatment in those
circumstances does not break the chain of
causation between the initial injury and the
death.
Although it is unnecessary to go further than
that for the purpose of deciding the present
point, we wish to add this thought. Whatever
the strict logic of the matter may be, it is
perhaps somewhat bizarre to suggest, as
counsel have impliedly done, that where a
doctor tries his conscientious best to save
the life of a patient brought to hospital in
extremis, skilfully using sophisticated
methods, drugs and machinery to do so, but
fails in his attempt and therefore
discontinues treatment, he can be said to
have caused the death of the patient.

97
The issue also arose in Ghana in 1959 in Basare,
in which one Atta Kofi and his son were
returning from their farm one morning when
they saw Kwaku Basare carrying away a bag of
cocoa from their verandah. They shouted to
Basare twice to put it down. Having put the bag
down, he went in the direction of a palm tree,
took up a gun and shot at Atta Kofi, killing him.
Basare was convicted for murder.
On appeal, it was argued that the trial judge
erred in failing to consider whether the treatment
given to the deceased in hospital may have been
responsible for his death. In delivering the
judgment of the Court of Appeal, Granville
Sharp held that:
it is enough to say that death resulting from
treatment of a wound unlawfully inflicted
does not, however inadequate such treatment
may have been, exonerate the person who
inflicted the wound from responsibility in
law for the consequences of his act, unless
the treatment itself amounts to murder or
manslaughter.

98
However, we have not had a Ghanaian case in
respect of the victim’s refusal to undergo
medical treatment or neglecting to take proper
care of himself

Under Ghanaian law, as we have seen from

section 64(c), the victims wanton or reckless
disregard for her health or condition is a defence
that operates to break the chain of causation

It has been argued, notably by Prof. Mensa-

Bonsu, that a case bearing a fact pattern similar
to that in Blaue would produce the same result in
a Ghanaian court

There is force in this suggestion – but what is

your take on it in light of the provisions of the
Constitution?

Is refusal of treatment unreasonable?

Is the constitutional gurantee of freedom of

belief uncurtailed?

It is a tough moral question

99
Inquiry 5

Does improper medical treatment operate to

break the chain of causation?

The concern here is, what if the victim is

subjected to improper or negligent medical
treatment after he has suffered harm – does the
treatment operate to break the chain of
causation?

On this point section 64(d) provides:

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

The effect of this provision is that medical or

surgical treatment is not generally regarded as a
cause of death as long as the surgeon or
physician does, by way of approved medical
practice, what is proper and necessary to relieve

100
the pain and suffering even, if the measures
incidentally shorten life

The underlying philosophy is that medical

treatment is intended to lessen pain and to save
lives – thus, the acts of physicians ordinarily do
not break the chain of causation

Therefore, unskillful treatment does not relieve

the accused from liability unless:
 death could not have been foreseen as a
likely consequence of the treatment, or
 the treatment is grossly negligent (i.e.
amounting to manslaughter)

Mere negligence will not suffice – the

negligence contemplated here must be so great
as to support a conviction for manslaughter –
that is – the negligence must amount to a
reckless disregard for human life

See Jordan
Malcherek
Basare

101
Thus, if the medical treatment was merely
negligent, it will not operate to break the chain
of causation

Or, if death was a foreseeable result of the

treatment, the chain would not have been broken

Still on the same point, some jurisdictions

distinguish between cases where the original
wound was mortal and cases where the original
wound was not mortal

So, for instance, you will find in those

jurisdictions, that were the original wound is not
mortal, the accused is excused from
responsibility.

An example may be found in the 1878 Michigan

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

102
In Ghana, it appears that there is no such
distinction between mortal wounds and non-
mortal wounds

But clearly, if the original wound is mortal and it

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

Inquiry 6

Does the lapse of time operate to break the

chain of causation in relation to harm that
causes death?

The question is, with respect to causing death,

should we stop the buck at some point in time to
relieve the inflicter of the harm from liability?

In the 1908 English case of Dyson, Lord

Alverstone, CJ stated that unless the death

103
occurred within a year and a day of the time
when the injuries causing it were inflicted, the
person charged could not be convicted of
manslaughter

This is the law in Ghana today

Sec. 64(e) provides that:

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

Therefore, the accused cannot be held liable if

the victim died a year and a day after he inflicted
the harm

Therefore, in this restricted circumstance, time

lapse may operate to break the chain of
causation

So much for novus actus interveniens

Now lets consider another aspect of causation

104
May the accused be held liable for death
caused by acts that inflict emotional distress,
psychological harm and those believed to be
caused by witchcraft or other supernatural
forces?

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

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

This provision is steeped in the consideration

that the harm that causes death must be physical
harm

Therefore, an act done calculated to cause harm

not by physical means but through emotional
distress and psychological harm will not fix the
accused with liability

105
So the principle in Wilkinson v. Downton does
not apply here

In the same vein, the tort principles on nervous

shock do not apply here

Then again, a person is not blameworthy for

causing an event through spiritual means – so in
law, one is not liable for causing death through
witchcraft or juju

In the same vein, one cannot set up a person’s

witchcraft as a defense for inflicting harm on her

So in Gadam, where the appellant killed the

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

106
 among a community, it is therefore
reasonable.

Now, lets consider the issue of contributory

negligence in causation

The question is: can an accused set up the

contributory negligence of the victim to
exculpate himself from liability?

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

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

Thus, it does not lie in the mouth of the accused

to assert that the harm was caused by the
victim’s contributory negligence

But what if the actus reus occurs in one

jurisdiction and the mens rea was formed in
another jurisdiction, as in being in one

107
jurisdiction and causing an involuntary agent to
cause harm in another jurisdiction?

What if the actus reus is began in one

jurisdiction but is completed in another
jurisdiction – as in causing harm to a person
in one jurisdiction but death occurs in
another jurisdiction?

For the answers to these questions lets turn to

 sections 13(4) and sec. 68

It should be noted that all the rules on causation

are applicable to inchoate offences as attempt,
conspiracy and abetment
- sec. 13(6)

108
Mens Rea

We have established that the requirements of

criminal liability include the physical act – actus
reus – and the mental element – the mens rea –
so the rule is actus non facit reum nisis mens sit
rea

Owing to the insistence of the common law that

the mens must be rea before criminal liability
can be established, the courts, over the years,
often read-in a mens rea requirement for serious
offences even where there does not appear a

109
requirement of a mental element to found
liability – an example is Tolson

The prohibited mental element differs from

offence to offence

In Act 29 mens rea is captured variously by

expressions such as “intentionally” “with intent”
“knowingly” “negligently” “unlawfully”
“without lawful excuse” “dishonestly” “without
reasonable excuse”

Intent

Intent is the commonest form of mens rea

The concept of intent is categorized into two

tiers –
i. basic intent
ii. specific intent

Basic intent is the first level – the primary intent

with which an act is done – that is doing an act
intentionally – for e.g. intentionally throwing a

110
stone at another or intentionally shooting at
another

Specific intent is the second level – the

secondary intent which is formed while doing an
act – i.e. the desired result – that is – you
intentionally do an act (i.e. basic intent) with a
further intention that it should achieve a
particular result – that further intention is
referred to as specific intent – e.g. you
intentionally harm a person in order to cause his
death – the intentional infliction of harm is the
basic intent – while the intention to kill the
person is the specific intent

Where an offence is defined so as to require both

a basic and a specific intent, both levels of intent
must be proved

So in Steane, the appellant, a British subject,

entered the service of the German broadcasting
system and broadcasted through that service. He
was charged with engaging in acts likely to
assist the enemy. Their Lordships opined:

111
 Now, the first thing which the court would
observe is that, where the essence of an
offence or a necessary constituent of an
offence is a particular intent, that intent must
be proved by the Crown just as much as any
other fact necessary to constitute the
offence. The wording of the regulation itself
shows that it is not enough merely to charge
a prisoner with doing an act likely to assist
the enemy; he must do it with the particular
intent specified in the regulation. While no
doubt the motive of a man’s act and his
intention in doing the act are, in law,
different things, it is, nonetheless, true that
in many offences a specific intention is a
necessary ingredient and the jury have to be
satisfied that a particular act was done with
that specific intent.

The concept of intent is an attempt by the law to

inquire into the state of mind of a person at the
time he committed a prohibited act

112
Yet, in practice, no one can ever look into the
mind of a person and say, with any certainty,
what his intention was at a particular time – as
was said by a judge in an old English case –The
devil himself knows not the intent of a man

Therefore, the law does not divine a man’s

intentions – rather, the law infers a man’s
intention from his action and its surrounding
circumstances – that is, a person’s action and the
circumstances surrounding the action informs
the law as to his mental state (factual or
notional)
Clearly, then, or ordinary notions of intent are
different from the concept of criminal intent

What may be a man’s actual or factual intent

may not be held as his intent in the criminal law
– and what may not be a man’s actual or factual
intent may be held to be his intent in the
criminal law

Thus, in criminal law it is not only when a

person has acted consciously desiring a specific
result that the person may be held to have

113
intended the result of his or her action –
sometimes the law attaches criminal intent to a
person although the resultant event of his actions
is not what he actually or factually intended

Since the law does not divine a man’s intent but

fixes him with an intent by considering his
action and its surrounding circumstances, the
presumption is that a man intends the natural
and probable consequences of his actions – thus,
if, for instance, a man consciously and
deliberately strikes another’s head with a mallet,
in ordinary circumstances we would feel entitled
to say that he must have intended to do some
serious injury – you cannot hit another’s head
with a mallet, or stab them in the chest without
the extreme probability that serious injury will
occur

Intent is governed by sec 11 of Act 29

We have various forms of intent, namely:

 Direct intent
 Oblique intent

114
  General or indeterminate intent
 Transferred intent
 Recklessness

Direct Intent

As we noted earlier, the law presumes that a

man intends the natural and probable
consequences of his actions

However, the result of an act does not

automatically fix the actor with intending its
occurrence – that is – the mere fact that an event
has occurred does not mean that it was
intentionally brought about – the accused must
do the act for the purpose of causing or
contributing to cause the event

Thus, where a person engages in an act to

achieve a specific result and the desired result
ensues, he will be held to have intended that
result even if he did not believe that the desired
result was probable – this is simplest form of
intent and it is referred to as direct

115
Sec 11(1)
Where a person does an act for the
purpose of causing or contributing to
cause an event, that person intends to
cause that event…although in fact or in
belief of that person, or both in fact and
also in that belief, the act is unlikely to
cause or contribute to cause the event

Thus, if a person, intending to kill another,

shoots at him, and kills him, he will not be heard
to say that he did not believe he could shoot that
well or that the person could die out of a gun
shot

See Odupong

And in Sene, the deceased initiated an unlawful

fight with the first appellant. The second
appellant, the brother of the first appellant,
joined in and their combined attack killed the
deceased. The trial judge directed the jury by
putting emphasis on who started the fight as a
means of establishing intent. They were
convicted. On appeal, the Court of Appeal held:

116
 The proper consideration is whether from
the circumstances it can be said that the
person who killed had the intention to cause
death as distinct from a mere intention to
fight.
In order to fasten a person with
responsibility for murder for fighting with
his fists, it must be shown that he realised
that death was the probable consequence of
his act when he undertook to engage in it. If
not, whoever started the fight, he would not
be guilty. And this should be made clear to a
jury. In the instant case, with the emphasis
laid on who started the fight, the impression
might easily have been gained by the jury
that once a person started a fight and his
opponent died as a result of the fighting then
he who started the fight would be guilty of
murder.

Oblique Intent

Oblique is something that is indirect

117
Oblique intent refers to the foreseeable indirect
consequence of a person’s act

If a person engages in conduct for a particular

purpose and the means chosen causes other
effects, the accused is not excused from liability
if the resultant undesired consequence of his act
was foreseeable at the time the act was
committed

On this sec 11(2) provides:

A person who does an act voluntarily,
believing that it will probably cause or
contribute to cause an event, intends to
cause that event...although that person
does not do the act for the purpose of
causing or of contributing to cause the
event

So as the illustration, if A, for the purpose of

causing the miscarriage of B, administers to B a
drug which A knows to be dangerous to life, it is
immaterial that A earnestly desires to avoid
causing B’s death, and uses every precaution to
avoid causing it

118
In these circumstances, the accused will be
deemed to have intended the result although he
did not desire that result

So in Idiong, the first appellant, with the

intention of committing abortion on a pregnant
woman, instructed the second appellant to
administer a herbal preparation to the woman.
The second appellant, believing he was giving
medicine to a woman undergoing a natural
miscarriage, administered the medicine. The
woman died, and they were convicted of murder.
On appeal,
It was held that the Crown did not establish
beyond reasonable doubt that the act of the first
appellant was of such a nature as was likely to
endanger human life, even though it occasioned
the woman’s death.
This means that had this been proved, the first
appellant would have been held to have intended
to kill the woman, although he did not actually
or factually intend to kill her

119
And in Quaye alias Jack Toller, the appellants,
while robbing a 70 yr old man, administered
chloroform to him to weaken his resistance and
he died as a result.
On appeal against conviction, it was held that in
such a case, the degree of criminality depends on
the knowledge of the and consciousness on the
part of the accused that death is likely to result
from what he does, that is whether or not he
willfully incurred the risk of causing the death of
another person

Sometimes a person engages in criminal conduct

against a group or an assembly of people
without really intending to harm a particular
person – the question arises as to whether in that
circumstance he intended to harm the eventual
victim although the victim was not in his direct
contemplation?

Here, the intention is indeterminate in respect of

the eventual victim

This form of intent is known as general or

indeterminate intent

120
The law is that the accused will still be liable
even though the eventual victim was not within
his direct contemplation

Sec 11(4) provides that:

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

Therefore, if A discharges a gun into a crowd,

and one of them is shot, A will be presumed to
have intended to cause harm to the victim

So in Gyamfi, the appellant, the Organizing

Secretary of the United Party (UP) at Badu in
Brong Ahafo, was leading a number of UP
supporters toward a crowd of CPP supporters.
The UP supporters were throwing stones. The
Appellant threw a stone, described as slightly

121
larger than a fist, at the CPP supporters, and it
hit one Kwabena Oppong, who died from
injuries sustained therefrom.
His conviction for murder was overturned
because there was no intention to cause death.
However, the critical point to note here is that he
was found guilty for manslaughter because there
was sufficient intention to cause harm by the act
of throwing a large stone into a crowd

Contrast this case with Ahenkora & Badu

In that case, three persons consulted a jujuman

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

122
In acquitting and discharging the Appellants, the
Court of Appeal made the following
Observation:
The essential question in the present case is
this: Can the appellants, because they went
to the cemetery with a gun for the purpose
of summoning spirits, be presumed to have
intended the consequence that followed
when the gun was discharged, resulting in
the death of the deceased? In other words,
did the appellants actually intend killing the
deceased, or any person? The jury should
have been told that intent and desire were
different things, but that once it was proved
that an accused person knew that a result
was certain, the fact that he did not desire
that result was irrelevant. In this case,
however, the evidence is not such as to show
that the appellants knew (or ought to have
anticipated) the result which followed the
discharge of the gun

123
Sometimes, a person may target a person for the
purpose of inflicting harm on that person, but he
misfires and harms another person instead

For instance, if A aims at B with a gun but

misfires and hits C, should A be held liable for
the harm to C although C was not within his
original contemplation?

We have noted that for criminal liability to be

established, there must be a coincidence of the
actus reus and the mens rea – thus, if the two
elements do not coincide, criminal liability
cannot be made out
It would be seen that in our present situation, the
actus reus and the mens rea occur in two
separate places, that is, the actus reus occurs on
the eventual victim while the mens rea occurs on
the intended victim

So if we were to strictly apply the maxim actus

non facit reum nisi mens sit rea, there would be
no crime because there is no convergence
between the actus reus and the mens rea, and the

124
accused would thereby be exculpated from all
liability

However, the law seeks to overcome this clearly

undesirable situation by the adoption of a legal
fiction of transferring or stretching the mens rea
to coincide with the actus reus

This form of intent is known as transferred

intent

The underlying philosophy is that a person who

has an unlawful and malicious intent against
another, and, in attempting to carry it out, injures
a third person, should be punished as if the
initial intention was to harm the injured person

So sec 11(5) provides that:

A person who does an act with intent to
assault, harm, kill, or cause any other
event to a particular person, which act
takes effect, whether completely or
incompletely, against a different person,
is liable to be tried and punished as if the

125
 intent had been directed against that
different person

A case in point is Ametewee

In that case, the appellant, a police officer who

was on duty at the Flagstaff House, fired three
shots at the President. One of the shots hit and
killed the President’s body guard. The appellant
contended that his sole desire was to take away
the life of the President and that he did not at
anytime form any intention to kill the deceased.
Therefore, it would be illogical to hold that he
intended to kill the deceased. In the words of the
appellant:
On 1January, the President came to the
office. I was on duty but I did not see him
when he came to the office. It was on the
second that I saw him. He entered the office,
and when he was about to go I tried to do
the job. The distance between me and the
President was not far; and if I meant to aim
at him properly I would not miss, but I just
held the gun anyhow and fired. I fired thrice.
I remember running towards the President

126
 and his Aide-de-Camp, Mr. Salifu Dagarti
was then holding the President by the hand.
He was trying drag him into the car. I fired
the third time again but I missed the
President. I was all the time aiming at the
President, so my mind was on nobody else.
But in fact it was not my mind to kill him; if
I meant to kill him only one shot of mine
would have killed him.

Later, the appellant had this to say:

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

The Supreme Court was unimpressed and held

as follows:
It would seem that the appellant was
labouring under a misapprehension that
because his aim was to kill the President, if
his bucket hit and killed the deceased by
mistake “it would be illogical to hold him
responsible for the murder of the deceased.”

127
 Such a contention is wrong and untenable
and cannot be countenanced by our courts.
As Darling J. said in R. v. Gross: “If a
person feloniously fires at another in such
circumstances as would make the killing of
that other person murder, but by accident
hits and kills a third person whom he never
intended to hit at all, that is murder.”

It should be noted that in determining liability

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

This is the effect of section 11(6), which

provides that:
For the purposes of subsection (5), a
ground of defence or extenuation is
admissible on behalf of the accused
person which would have been admissible
if the act had taken effect against the

128
 person in respect of whom, or the thing in
respect of which, the accused person
intended it to take effect

Recklessness as a form of intent

It is not at all easy establishing intent – for as

you may have heard, the Devil himself knows
not the intent of a man

Since the law is not a practice in clairvoyance,

we have established a presumption to aid in the
determination of a person’s intent at the time an
event occurs – that a person intends the natural
and probable consequences of his actions

129
Thus, if what occurred is the natural or probable
consequences of a conduct engaged in, it does
not lie in the mouth of the accused to assert that
he did not intend the ensuing result

Sometimes, the law holds that a person intended

the result of his action if he did not exercise due
care, or that he was heedless (not paying
attention), or even rash (thoughtless or acting on
the spur of the moment without considering the
consequences) while engaged in a serious or
life-threatening endeavour – this is recklessness
as a form of intent
Recklessness has two denotations:

i. doing an act which amounts to the taking of

unjustified risk, i.e. you foresee there is risk
of the consequence following but you
unreasonably decide to take the risk – this is
recklessness as to circumstance – that is – an
act done without regard to whether it would
cause an event – recklessness as to
circumstances refers to aims or objects or
purposes of an act

130
 ii.engaging in conduct which involves the
taking of unjustified risk even though the
actor does not know of the risk – this is
recklessness as to consequence –
recklessness as to consequence refers to
collateral risk - you are engaged in an
activity to achieve a specific result, but due
to lack of care, the activity results in an
undesired but foreseeable consequence – for
e.g. suppose a person is throwing stones in
the hope of breaking a window. He knows
perfectly well that people are standing near
and that he is in danger of hitting one of
them instead. He is reckless as to hitting a
person if he does actually hit one of them

Some activities are dangerous in themselves –

such activities clearly should put a person
engaged in same on high caution – some
activities are not necessarily dangerous in
themselves – they may become dangerous
depending on how a person conducts himself
while engaged in same

131
For a person to be held as intending an event due
to his reckless conduct, section 11(3) provides
that:
A person who does an act of a kind or in a
manner that, if reasonable caution and
observation had been used, it would
appear to that person
a) that the act would probably cause or
contribute to cause an event, or
b) that there would be great risk of the
act causing or contributing to cause an
event,

intends, for the purposes of this section, to

cause that event until it is shown that that
person believed that the act would
probably not cause or contribute to cause
the event, or that there was not an
intention to cause or contribute to it

Thus, for a person to be held for intending an

event out of recklessness, it must be shown that
if he had used reasonable caution and
observation, it would appear to him –

132
 a) that the act would probably cause or
contribute to cause the ensuing
event - that is to say, even though
the accused foresaw the
consequence of his conduct as
probable or likely, he pursued his
conduct with the knowledge of the
risks involved, or
b) that there would be great risk of the
act causing or contributing to cause
the ensuing event

So in Serechi, AGC employees were conveying

firewood trucks on a locomotive train from
Obuasi to a village. Some non-employees
jumped unto the trucks as the train started
moving, obviously to hitch a free ride.
The accused did not take kindly to this mode of
“lift”. So they pushed some of the non-
employees off the train. Unfortunately, at the
time they pushed the deceased off, the train was
moving very fast. He fell and he was run over by
a falling truck. The accused flatly denied their
involvement in the incident. They were
convicted for murder.

133
On appeal, the Supreme Court held that there
was sufficient evidence of an intention to cause
death and the infliction of the unlawful harm.

It is not enough to show that had the accused

used reasonable caution and observation it
would appear to him that the act would probably
cause or contribute to cause an event or that
there would be great risk of the act causing or
contributing to cause an event – this
presumption of intent is not absolute – it is
rebuttable
Therefore, the accused would not be held to
have intended the ensuing result out of
recklessness if it is shown that he believed that
the act would probably not cause or contribute to
cause the event, or that there was not an
intention to cause or contribute to cause the
event

Therefore, it appears that by the formulation of

section 11(3), the test applicable in Ghana, with
respect to recklessness as form of intent, is at
once both objective and subjective

134
The statement of the presumption in the first part
of section 11(3) appears to be based on an
objective test – reasonable caution and
observation

On the other hand, the second part of section

11(3) that deals with setting aside the
presumption appears to be based on a subjective
test – the belief of the accused

In Akorful, the appellant heard someone trying

to force open his window at about 1 am. He got
up, took his gun and went out to investigate. He
did not see anybody. A few moments later, he
saw someone walking in the dark. He shouted at
the person, but there was no answer. Thinking
that the person was a thief, he fired his gun
toward the direction where the person was
coming from in order to scare him away. His
shots hit and killed one Kofi Buabeng.
In his summing up to the jury, the trial judge
adopted the test of the reasonable man,
apparently applying the much criticized English
case of DPP v. Smith – he said

135
 Intention as far as the courts are concerned
is inferred from one's conduct ... if A. takes
a gun which is loaded and shoots towards B.
the reasonable man standing will infer that
A. intends to shoot at B. and it does not
matter what B. says or thinks if the ordinary
reasonable thinking man will infer from A.'s
conduct the intention to shoot."

In DPP v. Smith itself, the respondent was

driving a car in the back of which were stolen
sacks of scaffolding chips. A police constable,
noticing the sacks, asked him to stop, but instead
the respondent accelerated. The constable clung
on to the side of the car, which pursued an
erratic course, and he was finally shaken off and
fell in front of another car, receiving fatal
injuries. The respondent contended that he did
not intend to kill the constable but merely
wanted to shake him off the car.
In upholding his conviction for murder, the
House of Lords outlined the objective test as
follows:

136
 It is immaterial what the accused in fact
contemplated as the probable result of his
actions, provided he is in law responsible for
them in that he is capable of forming an
intent…On that assumption, the sole
question is whether the unlawful and
voluntary act was of such a kind that
grievous bodily harm was the natural and
probable result and the only test of this is
what the ordinary responsible man would, in
all the circumstances, have contemplated as
the natural and probable result…
Once the accused’s knowledge of the
circumstances and nature of his acts has
been ascertained, the only thing that can
rebut the presumption that he intends the
natural and probable consequences of those
acts is proof of incapacity to form an intent,
insanity or diminished responsibility.

When Akorful got to the Supreme Court on

appeal, the court disapproved the test of the
standard of the reasonable man set by the House
of Lords in DPP v. Smith. It held:

137
 In our view DPP v. Smith is not an authority
on the law of murder for this country, and by
directing the jury to apply an objective test
the learned trial judge seriously misdirected
the jury on the only issue before him. What
the learned trial judge in effect told the jury
was that once they were satisfied that a
reasonable man in the circumstances of the
appellant would appreciate the consequences
of his act they should pay no attention to
what the appellant said about the state of his
own mind. That of course is not our law. It
would indeed be monstrous that the idiot or
stupid man should hang simply because he
had not the intelligence or the foresight of
the reasonable man…The proper criterion is
what the prisoner himself had in his mind.

The test, it would appear, is both objective and

subjective.

Motive

Now let’s contrast intention with motive

138
Intention is very different from motive

Intention is the will to engage in an act, while

motive is the feeling that prompts the desire to
engage in the act

For instance, if a person kills another, the motive

may be for revenge or to attain some economic
benefit from the death of the victim

So if a woman shoots and kills her husband to

benefit under his will, the intent, which makes
the act murder, is the desire to kill, while the
motive, which forms no part of criminal liability
in Ghana, is the desire to benefit under the will

Unlike the situation in some jurisdictions in the

United States, in Ghana there is no obligation on
the part of the prosecution to prove the motive
behind a person’s action

So also, motive is not a defence for engaging in

a criminal conduct, however innocent it is – in
other words, one who breaks the law with a

139
good motive or in aid of a religious belief still
breaks the law

This ends our discussion of intent as form of

mens rea – now we turn to another form of mens
rea

Negligence

Some text writers do not consider negligence as

a state of mind and therefore not a form of mens
rea

They argue that whereas recklessness is a frame

of mind in which we behave or are likely to
behave, negligence is a lack of attention (an
activity), not a state of mind

140
Section 12 provides that:

A person causes an act negligently, where,

without intending to cause the event, that
person causes it by a voluntary act, done
without the skill and care that are
reasonably necessary under the
circumstances

This definition of negligence tends to lend

credence to the text writers who argue that it is
not a state of mind, that is – doing an act without
the requisite skill and care is not a state of mind
but an activity, without the necessary
professional competence

However, as Mensa-Bonsu argues, negligence

looks to engaging in an activity without
adverting one’s mind to the dangers that
particular activity presents – therefore, not
taking care when doing an act is a prohibited
state of mind

Negligence is constituted by one of two factors:

141
 i. inadvertence
ii. engaging in an act without the necessary
professional competence

See illustrations under sec 12

There are degrees of negligence, depending on

the offence in question

Knowledge

Act 29 does not define knowledge – however,

there are criminal offences for which knowledge
is the requisite mens rea – e.g. sec 25 on
harboring a criminal

Knowledge is an acquaintance with facts or truth

or a state of knowing or understanding
information

There are various kinds of knowledge:

142
  Actual knowledge
 Constructive knowledge
 Imputed knowledge

Actual Knowledge – where the accused factually

knows of the situation or has express
information as to the factual state of affairs

Constructive Knowledge – where the accused

ought to have known the factual state of affairs

Imputed Knowledge – where an ordinary person

would have known of the situation if he had
taken the trouble to make inquiries

143
 CAPACITY/EXEMPTION

The criminal law is backed by punitive sanctions

– the offender therefore faces, upon conviction,
the prospect of punishment, unless pardoned by
the President

As a result of the infliction of punishment for the

breach of criminal prohibitions, the law
recognizes that, upon several considerations, it is
not every member of our society that is
amenable to punishment

144
Thus, certain persons are exempted from the
operation of the criminal law, due to say,
infancy, congenital defects or some other
incapacity or exemption
– a curious example in the UK, for instance, is
that the Crown cannot be prosecuted because
that would be Regina v. Reginam, or Rex v. Rex,
which is thought to be impossible – that is to
say, criminal prosecutions are done in the name
of the Crown – thus, the Crown cannot prosecute
itself, especially against the backdrop that the
courts belong to the Crown – hence, she/he
cannot be prosecuted before them

We have a similar exemption for our President

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

Therefore, as long as he remains in office, the

President is insulated from the operation of the
criminal law

145
Infants as exempted from the Operation of
the Criminal Law

We have established that the requirements of

criminal liability are a guilty act and a prohibited
state of mind – actus non facit reum nisi mens sit
rea

The prohibited mental state requirement in

criminal liability supposes that the offender is
capable of making moral choices – in the sense
that he is able to appreciate the difference
between right and wrong - this in turn
presupposes that the offender’s mind is mature
and sound enough to appreciate the nature of the
choice he makes

As the mens rea speaks to responsibility in the

sense of moral or legal accountability, a person
is morally responsible if he can justly be blamed
and punished for wrongdoing

Infancy raises problems of criminal

responsibility

146
A child may engage in a prohibited act but her
mind may not be mature or sound enough to
appreciate the difference between right and
wrong – and to appreciate the nature of the
choice (if it is a choice) she makes

A child below a certain age may not be capable

of making moral choices – in the sense of
distinguishing between right and wrong – thus,
real policy and legal issues arise were she to be
held morally and legally accountable for her
actions
Therefore, an act done by such an infant, which
would otherwise constitute a crime if done by
some other person, is excused, on the ground
that the child lacks the capacity to form a mens
rea

The policy question is: at what age should

criminal liability attach a child?

The answer to this question is a function of each

society – thus, the age at which a person should
be held responsible for her actions depends on
the conviction of the society in question

147
At common law, the age of criminal
responsibility was 7yrs – then, it was raised to
10yrs

In the US, for instance, the age of criminal

responsibility varies among states – in most
states it is 18yrs – in Georgia, Illinois,
Louisiana, Massachusetts, Michigan, Missouri,
South Carolina and Texas, it is 16 – in
Connecticut, New York and North Carolina, it is
15
In France it is 13

In Canada and the Netherlands, it is 12

In Germany, Russia, Italy, Austria and Japan, it

is 14

In Ghana, the age of criminal responsibility is

12yrs – it was formerly 10 yrs – it was raised to
12yrs in 1998 by sec 4 of the Criminal Code
(Amendment) Act, 1998 (Act 554), which
amended sec 26 of Act 29

148
Sec. 26 provides that:
For the purposes of the criminal law a
person under twelve years of age is
incapable of committing a criminal
offence

Thus:
If A, aged eleven years administers poison
to B., A is not criminally responsible and
is considered incapable of understanding
the consequences of those actions from a
legal perspective
Mind you, the law is not saying that what a child
below 12 does is criminal but since he is below
12 he is excused from punishment – rather, the
law is saying that that child cannot commit a
crime

Thus, the point is that in Ghana a child under 12

yrs is deemed to be incapable of committing a
crime due to an undeveloped capacity to
appreciate the difference between right and
wrong

149
Therefore, we say that a child who has not
attained his 12th birthday is doli incapax – that
is, he has no capacity for mischief – as opposed
to doli capax – capacity for mischief

At common law, as illustrated in Gorrie, there

was what was termed mischievous discretion –
where, in respect of a child between ages 7-14, a
rebuttable presumption of innocence was
established, which could be rebutted by evidence
that the child knew that what he was doing was
wrong

Under the concept of mischievous discretion

under the old common law, the presumption of
innocence could be rebutted by evidence of the
child’s state of mental development

Thus, at common law, the law took the position

that since some infants develop faster than
others, those whose mental faculties developed
faster and were able to appreciate right from
wrong, were held liable for their actions,
although children of the same age were
exculpated from liability for engaging in the

150
same prohibited act, if they were said not to be
able to appreciate the difference between right
and wrong

Thus, a subjective test was applied on a case by

case basis to ascertain whether the moral sense
of the child in question was sufficiently
developed to make moral choices – which then
invoked the operation of the criminal law

The concept of mischievous discretion with

respect to infants is NOT APPLICABLE in
Ghana – the presumption of innocence until
proven guilty only applies to persons who are
12yrs and above

The law conclusively presumes a child under 12

yrs to be incapable of committing a crime,
period

However, there appears to be an unsettled issue

in the area of sexual offences with respect to
children between ages 12-16

151
In Ghana, the age of sexual consent is 16yrs –
that is to say, a child below 16yrs is incapable of
giving his/her consent to sexual acts

Therefore, under sec. 101, a person who engages

in sexual conduct with a child under 16yrs is
guilty of defilement – it does not matter whether
the child consented to the act

Thus, where the child is below 16yrs, his or her

of lack of consent puts the perpetrator in
jeopardy of being convicted for defilement

But what if the child is the perpetrator of that

sexual offence?

Two scenarios

1. A boy of 14yrs has sex with a girl of 13yrs

with her consent – has any of them
committed defilement, since neither partner
is of the age of consent?

2.A boy of 15 forcibly has sex with a girl of

17 – is the boy liable although by the

152
 operation of law he cannot consent to a
sexual act?

The problem is this:

Under sec. 26 both boys in scenarios 1 & 2 are
doli capax, that is, they are legally accountable
for their actions, because they are above 12 yrs –
however, under sec. 101, the law is that both
boys cannot consent to sexual acts – so it seems
that although on the face of it they have
committed a criminal offence, yet the law in the
same breadth is saying they cannot consent to
sexual acts – so wherein lies their liability, if any

Is it the case that where the child is the victim

then the law holds that he/she cannot consent but
that where he is the perpetrator the law assumes
that he should be held liable for violating
another’s sexual privacy?

In the case of scenario 2, it may sound plausible

to suggest that since the 15yr old boy applied
force to have a sexual connection with the girl,
the law should hold him liable since to hold
otherwise would lead to the incongruous

153
situation of excusing an offender who is clearly
doli capax merely on the thin ice ground that he
cannot consent to a sexual act

Scenario 1 presents an even more difficult

hurdle – this is because there was no force
applied in the sexual connection – both parties
were willing participants – both are doli capax –
both cannot consent to sexual acts – their act
was fully consensual – can each be held liable
for defiling the other?

An attempt is made at common law to address

this problem by the institution of an irrebuttable
or a conclusive presumption that a child under
14 yrs is incapable of committing rape – that is,
he is malita non supplet aetatem – physical
incapacity to commit the offence

There appears to be no concept of malita non

supplet aetatem on this point under the Criminal
Offences Act

Thus, the Ghanaian situation appears to be a

case of being between a rock and a hard place,

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or as they say, between the devil and the deep
blue sea –

Would a Ghanaian court adopt the malita non

supplet aetatem principle to hold that since a
child under 16yrs is legally incapable of granting
his/her consent to sexual acts, the 15yr old boy
in scenario 2 is to be conclusively presumed to
be incapable of committing a sexual offence
because he is not yet 16yrs and so should be
exculpated from liability?

What is your take on this issue?

It seems to me that with respect to sexual

offences, criminal liability may be functionally
determined – in the sense that as a victim, a
child between ages 12-16 is held incapable of
consenting, but as a perpetrator, the same child
may be held malita supplet aetatem – physically
capable of committing rape – but this view may
hold sway in scenario 2, but what of scenario 1,
since there appears to be no perpetrator therein,
or since both participants are victims and at the

155
same time perpetrators because of the absence of
the application of force

Is it reasonable to hold the child to such double

standards?

DEFENCES

Defences are excuses or extenuating

circumstances (i.e. factors that make an accused
person’s actions excusable or less blameworthy)
– that is defences operate to either excuse an
accused from liability or limit his liability

Therefore, defences are either partial or

complete

156
A complete defence operates to totally exculpate
the accused from liability

While a partial defence does not entirely excuse

from criminal liability – it goes either to reduce
a charge to a lesser offence or to reduce
punishment to a lesser sentence

We will be discussing defences from now till the

end of the semester

Ignorance or Mistake of Fact

Ignorance or Mistake of Law

Ignorance or mistake of fact can excuse from

criminal responsibility

However, ignorance or mistake of the law

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

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These two propositions are captured in sec. 29
which provides:

(1) A person shall not be punished for an

act which, by reason of ignorance or
mistake of fact in good faith, that
person believes to be lawful.
(2) A person shall not…be exempt from
liability to punishment for an act on
the grounds of ignorance that the act
is prohibited by law.

It is said that a person who acts in ignorance of a

fact has no intention of engaging in a forbidden
conduct

However, a person who acts in ignorance of the

law but not in ignorance of fact, intends to
engage in the prohibited conduct, although he
does not know that that conduct is prohibited by
law

158
So in Tolson, the accused was charged with
bigamy for marrying another man while her
husband was still alive and their marriage was
still subsisting. It appeared that she was led to
believe that her first husband was dead.
In acquitting her, it was held that a bona fide
belief by the accused in the death of her husband
at the time she contracted a second marriage
afforded her a good defence on the charge of
bigamy
Cave J. remarked that:
At common law an honest and reasonable
belief in the existence of circumstances
which, if true, would make the act for which
a prisoner is indicted an innocent act, has
always been a good defence. This doctrine is
embodied in the somewhat uncouth maxim
Actus non facit reum, nisi mens sit rea.
Honest and reasonable mistake stands, in
fact, on the same footing as absence of
reasoning faculty, as in infancy, or
perversion of the faculty, as in lunacy.

The locus classicus for ignorance/mistake of fact

in Ghana is Nyameneba

159
The appellants were members of a religious sect
at Princess Town in the Western Region. For
four years or more prior to their arrest they had
been using certain herbs and been using them for
all sorts of things – they had been burning the
herbs as incense for invocation at their worship,
making soup out of it, boiling and using it
themselves or administering it to other people as
medicine for all kinds of ailments with success.
They alleged that the father of one of them, upon
spiritual inspiration, discovered these herbs and
the sect had ever since used them publicly to the
good of all the members and their associates.
They called the herbs, “The herbs of life.”

One of them testified in the following terms:

I am a farmer. I live at Princess. My leaves
are leaves of life. I smoke the leaves which
give me wisdom, understanding and strength
so that I don’t do after some other people
live. I don’t steal, I don’t lead a bad life. I
don’t give false evidence against others. I
am able to conform to the ten
Commandments. When I smoke, I preach
the Gospel to others so that they lead good

160
 lives. When I smoke the leaves, I don’t
drink. In Genesis Chapter 2 verse 9 the
leaves are referred to.

Continually the appellants had, at their public

worship, condemned the chief and his elders,
and particularly the youth of the town, for
indulging in alcoholic and spirituous drinks, and
for smoking cigarettes; these practices they
alleged led the people to bad lives which shut
the gates of heaven against them; on the contrary
they preached that if the youth would abandon
drinks, cigarettes and the consequent bad life
and would use the herbs of life, they would
surely go to heaven when they died.
The appellants, as it would appear, had made
themselves a nuisance to all persons outside
their sect, and on Christmas Day, 1963, some of
the elders complained to the chief about their
conduct and requested him to take steps to stop
this molestation.
The chief thereupon sent some of his elders to
the first, second, third and fifth appellants to
remonstrate with them. The appellants, on the
contrary, tried to convince the representatives of

161
the chief about the alleged herbs of life,
produced and showed some to them, and
smoked some in their presence.
The representatives suspected that the herbs
might be Indian hemp, and took the appellants to
the ahenfie. There the appellants insisted that
theirs were herbs of life, and not Indian hemp,
whatever Indian hemp might be. The evidence
of the chief and his elders suggested that none of
the villagers really knew what the stuff was;
they merely suspected, from what they had
heard of Indian hemp, that it may be Indian
hemp.

A chemical analysis carried on the herbs proved

them to be Indian hemp, and they were charged
for cultivating, possessing, and smoking Indian
hemp. However, the appellants insisted that the
herbs could not be Indian hemp, whatever Indian
hemp was, and that it was because of religious
jealousy that the chief of Princess Town, his
elders and some of the villagers were alleging
that the herbs were Indian hemp and not herbs of
life.

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In allowing their appeal against their conviction
the Supreme Court held that the appellants
appeared to be genuinely ignorant of the nature
and quality of the drugs. They were, therefore,
entitled to a defense of mistake of fact under
section 29
Ollennu JSC, who delivered the judgment of the
Court observed:
The appellants admit cultivating, possessing
and smoking the stuff produced in court. In
fact it was they themselves who voluntarily
showed this stuff to the public of Princess
Town, and later voluntarily showed and
handed the stuff to the police. There is no
question at all upon the evidence that the
appellants honestly though erroneously,
believed that the stuff is herbs of life and
nothing else…[W]hile ignorance of the law
is no defence, ignorance of fact is a
complete defence. The question is, to which
class of ignorance does the ignorance of the
appellants in this case belong; the class of
law, or the class of fact?...
If the case of the appellants had been that
they knew that the stuff is Indian hemp, but

163
 did not know that there is [a] law prohibiting
its possession etc., their plea would be a plea
of ignorance of the law… But their case
which is so obvious and convincing…is that
they are honestly ignorant of the fact that the
herbs in question are Indian hemp. Theirs is
therefore a plea of ignorance of fact which
under section 29 (1) of Act 29 is a good
defence.

It should be noted that is not a reliance on

religious, customary or other beliefs that operate
to afford a person the defence of mistake or
ignorance of fact, but rather, an honest mistake
or ignorance of fact

Therefore, one cannot rely on his religious,

customary or other belief as an excuse to break
the law

164
So in Foli VIII, the appellants were charged with
causing harm to a corpse they had cremated
without lawful authority. One of the appellants’
ground of defence was that it was an established
and long-standing custom in their area that any
person, such as the deceased, who had violated
custom but was not purified before dying,
should not be accorded a decent burial but
should be cremated.
In rejecting this defence, it was held that a
custom could not be validated merely because it
was an established and long-standing one within
a particular locality when that custom was
contrary to statute.

The rule that ignorance of the law is no excuse

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

Certainly, the rule in sec. 29 must, of necessity,

work injustice in numerous situations

165
For how can a person reasonably be expected to
know of the content of every law?

If this can be achieved by city dwellers, what

about rural dwellers? How do we expect my
illiterate grandmother in the Kwahu-South
District, for instane, to know of the contents of
the Criminal Offences Act?

Then there is ever present fact that it is for the

courts to say what the law is – therefore,
invariably, it is eventually how the courts
interpret the provisions of the Criminal Offences
Act that is most instructive and not merely the
black letter of the Act

So even where a person apprises herself of the

content of the law, are we being fair to her by
presuming her to know the law when she cannot
predict how the judges would resolve an
ambiguity?

The predicament does not end there, for it is not

only knowing how the judges may resolve an
ambiguity on a particular occasion, for we know

166
that in deciding cases judges consult precedents
to come to a decision – the implication of this is
immense – it implies that perhaps a person needs
something more than a copy of Act 29 to know
the state of the criminal law, but that she needs a
whole law library before she can reasonably be
abreast with the state of the law

Then again, even if she acquires this whole law

library, will this be enough since she may not
understand the intricacies of legal principles?

However, two reasons are advanced in support

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

167
Consent

Consent is a common law defence and it is not

expressly stated as a general defence under Act
29

However, there are several offences in Act 29

that are defined with the requirement of the lack
of consent – for instance, the offence of rape is
made out when the lack of consent to sex is
established – another such offence is stealing –

168
so a person who takes another person’s property
without that person’s consent is guilty of
stealing

The nature of offences like rape and stealing

implies that the existence of consent will operate
in the inability of the prosecution to make out
the offence – hence proof, by the defence, of the
giving of consent by the victim operates as a
defence to entirely exculpate the accused from
liability

It must be noted that in whatever form it takes,

consent must be voluntarily given – that is,
freely given and the person giving the consent
must be of full age and capacity

Retrospective consent will not do

On another score, consenting to something is

very different from liking the thing or finding
the thing disagreeable – for instance, if a woman
consents to sex, she would not be held later to

169
complain that the act was disagreeable or that
the sex was lousy – the law is not interested in
that fact

Consent validly obtained and sanctioned by law

excuses from criminal responsibility

Consent is treated under sections 14 and 42 of

Act 29

Sec. 14 sets the specific rules on consent is void

or negatived – while sec. 42 sets the limits to the
giving of consent

The opening paragraph of sec. 14 sets the tone

clearly that the defence of consent arises where
it is required that an act be done with or intended
to be done without a person’s consent or where
it is required for a matter of justification or
exemption that an act be done with a person’s
consent

The sec indicates who can give consent and the

circumstances under which an apparent consent
would be void in law, thus making that apparent

170
consent inoperational in respect of the offence in
question

By sec. 14(a) the following persons cannot

consent to the infliction of any criminal act:
 A child under 12 yrs
 An insane person
 A person who is unable to understand the
nature or consequences of his action by
reason of immaturity
 A permanently incapacitated person
 A temporarily incapacitated person like
an intoxicated person, or drugged person
or a comatose person

So a purported consent obtained from any such

person is void and incurably bad – it is deemed
as if they never consented at all, because the law
regards them as incapable of consenting

This flows from the consideration that an infant

is not matured enough to consent and also that
an unconscious person cannot consent

171
It also flows from the consideration that a person
of subnormal intelligence cannot give consent

So as the illustration goes,

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

Still under sec 14(a), a person who is less than

16yrs cannot give a valid consent in respect of a
sexual act

On another score, the circumstances under

which consent is given or obtained may operate
to void that consent if though the consent is, on
its face, apparent

Therefore, if even the consent in question seems

apparent, it is void if the victim had no real
opportunity for choice

That is to say, consent is void, if given or

obtained under circumstances in which the
consent would have been refused had the victim

172
been aware of the real intentions of the accused,
or obtained only because some form of coercion
was brought to bear on the victim, or that a
person authorized to consent on behalf of the
victim did so in bad faith

So, by sec 14(b), consent is void if it is obtained

by deceit or fraud

Consent is obtained by deceit or fraud if it would

have been refused but for deceit or fraud – sec.
14(f)

This is because the person giving the consent

must be fully informed of the circumstances
surrounding the transaction in order to make a
fully informed choice

Thus, half-truths will not do

Whole falsehoods are even worse

So if a person pretends to have the consent of a

child’s father or under pretence of medical

173
treatment, induces the child to consent to
sexual intercourse, the consent is void

And if a man induces a woman to consent to

having carnal knowledge of her by personating
her husband. Her consent is void

So in Williams, the appellant, a Presbyterian

choirmaster, arranged with the parents of two
girls to give them lessons in singing and voice
production.
He had sexual intercourse with one under the
pretext of creating a passage in her vagina with
his penis to make her sing better by easing her
breathing since she was not getting her notes
right. It was held that the summing up of the trial
judge in the following terms was accurately
stated:
The law has laid it down that where a girl’s
consent is procured by the means which the
girl says this prisoner adopted, that is to say,
where she is persuaded that what is being
done to her is not the ordinary act of sexual
intercourse but is some medical or surgical
operation in order to give her relief from

174
 which she is suffering, then that is rape
although the actual thing that was done was
done with her consent, because she never
consented to the act of sexual intercourse.
She was persuaded to consent to what he did
because she thought it was a surgical
operation

The lesson here is that it is immaterial whether

perhaps the victim found the supposed operation
unexpectedly pleasant

Contrast this case with the Canadian case of

Bolduc & Bird
In that case, the first appellant was a doctor who,
about to conduct a vaginal examination of a
patient, invited his lay friend, the second
appellant to be present and watch the procedure.
The doctor introduced the friend as a medical
intern and in consequence the woman consented
to his presence.
The two friends were convicted of indecent
assault on the woman. On appeal, the
convictions were quashed because although her

175
consent had been procured by fraud, it did not
affect the nature and quality of the act, that is,
the medical examination, to which she
consented. Also that the second appellant’s act
did not amount to indecent assault as he merely
stood and looked on

Consent is also void if it is obtained by or given

under duress – sec. 14(b)

Consent is obtained by duress, if it would have

been refused but for the duress – sec. 14(f)

Duress is an act done with force, harm,

constraint, or threat, with intent to cause a
person, against that person’s will, to do or
abstain from doing an act

So as the illustration goes,

If a person induces a child to have sexual
intercourse by threats of imprisonment, the
consent is void

176
For consent to be voided by duress, the act
inducing consent need not be one of extreme
violence

Therefore, if a person submits to an act only

because he is made to believe that without
submitting he will be overpowered and have the
act done to him anyway, or that some unpleasant
consequence would be visited on him, then that
is no consent – for instance, an armed robber
ordering a female occupier of a house he is
robbing to submit to sexual intercourse would
not be heard to say that he did not apply any
force so the female occupier willingly consented
to the act

What if a debtor threatens not to pay back

money owed unless the creditor submits to
sexual intercourse – is consent thereby vitiated?

Consent is also voided by the exercise of

undue influence

177
Undue influence involves one person taking
advantage of a position of power or infleunce
over another person

The law, as a matter of policy, guards jealously

the interests of weaker parties in the following
relationships:
 Parent/child
 Guardian/ward
 Priest/member of parish
 Solicitor/client
 Doctor/patient
 Employer/employee

In all these relationships, if it appears that some

pressure was brought to bear on the less
powerful party by the more powerful for the
former to consent to an act, that consent may be
tainted with undue influence

So section 14(c) provides that:

A consent is void if it is obtained by or
under the exercise of an official, a
parental or any other authority; and the
authority which is exercised otherwise
178
 than in good faith for the purposes for
which it is allowed by law, is for the
purposes of this section, a power unduly
exercised

In this regard, the exercise of authority is not

limited only to the exercise of authority by way
of command (as in the case of men of uniform),
but includes influence or advice purporting to be
used or given by virtue of an authority
– sec. 14(g)

Consent is obtained by the undue exercise of

authority if it would have been refused but for
the exercise of that authority
- sec 14(f)

Under sec. 14(c), one of two situations may void

consent for amounting to undue influence:

1. consent that is obtained by or under the

exercise of any kind of authority; and

179
 2. consent that is obtained by the exercise of
authority by operation of law but which is
exercised in bad faith

Under the second form, since the consent is

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

If the consent is obtained by the exercise of

authority in good faith, it may not be invalidated

So as the illustration goes:

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

180
Under the first form, as long as it is shown that
the consent was obtained by or under the
exercise of authority, it is void without any
consideration of whether or not there was good
or bad faith

Now let’s consider the cases under the obtaining

of consent by the exercise of undue influence

In Nichol, it appeared from the evidence of the

victim, Ann Eliot, a girl of 13, that she was a
student at a school managed by the wife of the
accused. The wife was absent for a few days and
the accused assumed his wife’s position.
On one occasion while he was sitting in a chair
and the girls, numbering seven, standing around
him, he put his hand up the petticoat of Ann
Elliot, unbuttoned his breeches, took her hand,
and, pulling her toward him, put it into his
breeches, so as to touch his private parts; and
she continued in that situation for the space of
half an hour while she was reading.
On another occasion, two or three days
afterward, when Ann Elliot was alone in the
classroom, the accused sitting in a chair took her

181
between his legs, put his hand up her petticoat,
unbuttoned his breeches, pulled up her petticoat,
put his private part in her’s, and continued in
that pose for a considerable space of time. He
then instructed her not to tell anyone. Ann Elliot
maintained that the acts of the accused were
against her will.
In giving the accused to the charge of the jury,
the trial judge observed that the girl was of
tender years, and the authority and influence of
the accused were likely to have put her more off
her guard than she would naturally have been
from her age and experience, and that a fear and
awe of the accused might check her resistance
and lessen her natural sense of modesty and
decency; and that under such circumstances, less
resistance was to be expected than in ordinary
cases. The jury found the accused guilty.

The principle to be gleaned from this case is that

if a person in a position of authority or
influence, like a school master in this case, takes
indecent liberties with a person subject to his
authority or influence without the person’s
consent, though the person does not resist, he is

182
liable to be punished as for an assault, and it
does not lie in his mouth to assert that the victim
consented to the act

Another case is Re T.
Miss T was separately raised by her parents who
had separated when she was only 3yrs old. A
custody order awarded custody of Miss T to her
mother. The custody order specifically stated
that Miss T should not be brought up according
to the faith of Jehovah’s Witnesses – a faith her
mother subscribed to.
Miss T was never baptized into the faith and the
sect issued a press statement that Miss T is not
and has never been one of Jehovah’s Witnesses.
But Mrs. T clearly sought in all other respects to
bring up Miss T with the view to her becoming a
Jehovah’s Witness.
Miss T was involved in a road traffic accident
when she was 34 weeks pregnant. She was
diagnosed of pleurisy or pneumonia. She filled a
patient assessment form at the hospital and in
response to an entry which asked for the
religious beliefs and relevant practices she filled:

183
Jehovah’s Witness (Ex), but still has certain
beliefs and relevant practices.
Her condition became worse and it was decided
that a caesarian was necessary to deliver her.
Before the operation, Miss T signed a refusal of
consent for blood transfusion if it became
necessary. The form was countersigned by the
midwife.
The form contemplated that it was to be signed
by an obstetrician, but it was not so signed. Then
again, contrary to what was stated on the form, it
was not explained to her that it may be necessary
to give her blood transfusion so as to prevent
injury to her health, or even to preserve her life.
Indeed, the form was read and explained to her.
She simply signed blindly. However, before she
signed the form, she had been put on pethidine, a
narcotic drug. The doctor who observed her
testified that she was drowsy and was not
compos mentis. Her condition deteriorated after
the caesarian that produced a stillborn baby. She
was put on a ventilator and paralyzing drugs
were administered.
At the first court hearing, Ward J. decided that in
the circumstances, it would not be unlawful for

184
her to be given a blood transfusion. Thereupon
she was given a blood transfusion or plasma.
However, at the second hearing before the same
judge, the doctor who observed her changed his
evidence completely. Ward J. therefore found
that although Miss T was under the influence of
the painkilling pethidine, she had not lost her
mental faculties and was sufficiently capable of
understanding the questions put to her
concerning blood transfusion.
Ward J. also found that Miss T reached her
decision to refuse blood transfusion under the
undue influence of her mother, but concluded
that the decision was a voluntary one and was
not vitiated by any undue influence. The Court
of Appeal took the view that Miss T's refusal of
consent was vitiated by her mother's undue
influence. The Master of the Rolls, Lord
Donaldson of Lymington, observed:
A special problem may arise if at the time
the decision is made the patient has been
subjected to the influence of some third
party…The real question in each such case
is: does the patient really mean what he says
or he is merely saying it for a quiet life, to

185
 satisfy someone else or because the advice
and persuasion to which he has been
subjected is such that he can no longer think
and decide for himself? In other words, is it
a decision expressed in form only, not in
reality?

Consent is also void if it is obtained or given

under a fundamental mistake of fact

Consent is obtained under a mistake of fact if the

consent would have been refused but for the
mistake – sec. 14(f)

The mistake may be as to

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

However, it is not every form of mistake of fact

that will operate to invalidate consent – it must
be a fundamental mistake

For as sec. 14(e) provides:

186
 A consent does not have effect if it is given
by reason of a fundamental mistake of
fact

A fundamental mistake is one that goes to the

root or the heart of a consent given

Now let’s consider consent by third parties on

behalf of another

Sometimes, a person may consent on behalf of

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

In law, such consent, when given, must be for

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

For as sec. 14(d) provides:

A consent given on behalf of a person by
the parent, guardian of that person, or

187
 any other person authorized by law to
give or refuse consent on behalf of that
person is void if it is not given in good
faith for the benefit of the person on
whose behalf it was given

More than 10yrs after the interesting case of

Miss T, another interesting but sad case cropped
across the Atlantic in the United States involving
Terri Schiavo – discuss

A case in point is Re A

188
189
190
Jodie and Mary were conjoined twins (Siamese
twins). They each had their own brain, heart and
lungs and other vital organs and they each had
arms and legs.
They were joined at the lower abdomen. They
could be successfully separated. But the
operation will kill the weaker twin, Mary.
That was because her lungs and heart were too
deficient to oxygenate and pump blood through
her body. Had she been born a singleton, she
would not have been viable and resuscitation
would have been abandoned. She would have
died shortly after her birth.
She was alive only because a common artery
enabled her sister, Jodie, who was stronger, to
circulate life sustaining oxygenated blood for
both of them.
Separation required the clamping and severing
of that common artery. Within minutes of doing
so Mary would die. Yet if the operation did not
take place, both would die within three to six
months, or perhaps a little longer, because
Jodie’s heart would eventually fail.
The parents could not bring themselves to
consent to the operation. The twins were equal

191
in their eyes and they could not agree to kill one
even to save the other. As devout Roman
Catholics they sincerely believed that it was
God’s will that their children were afflicted as
they were and they should be left in God’s
hands.
The doctors were convinced they could carry out
the operation so as to give Jodie a life which
would be worthwhile. So the hospital sought a
declaration that the operation may be lawfully
carried out. The High Court granted the
declaration, but the parents appealed.
The Court of Appeal held that:
Given the conflict of interests between Jodie
and Mary, and the conflict inherent in the
court’s duty to give paramount consideration
to the welfare of each twin, it had to choose
the lesser of the two evils and so find the
least detrimental alternative. It was therefore
necessary to carry out a balancing exercise,
with the right of each of the twins to life
going into the balance, alongside the
worthwhileness of the treatment. When
considering the latter, it was legitimate to
have regard to the actual condition of each

192
twin and hence the actual balance sheet of
advantage and disadvantage which flowed
from the performance or non-performance
of the proposed treatment. At that point, it
was legitimate to bear in mind the actual
quality of life that each child enjoyed or
might be able to enjoy.
In that respect, the balance came down
heavily in favour of Jodie. The operation
would give her the prospect of the
expectation of a relatively normal life. It
would shorten the life of Mary, but she was
doomed for death in any event. Moreover, it
was impossible not to put into the scales the
manner in which the twins were able
individually to exercise their right to life.
Although Mary had the right to life, she had
little right to be alive. She was alive only
because she was sucking the lifeblood out of
Jodie, and would survive only as long as
Jodie would survive.
As for Jodie, she would not survive long
because constitutionally she would not be
able to cope. If Jodie could speak, she would
surely protest and tell Mary to stop killing

193
her. Thus the fact that only the doctors could
help Jodie, while Mary was beyond help,
went into the scales of fairness and justice
between the children.
There was therefore no doubt that the scales
came down heavily in Jodie’s favour. The
best interests of the twins were to give the
chance of life to the child whose actual
bodily condition was capable of accepting
the chance to her advantage, even if that had
to be at the cost of sacrificing the life which
was so unnaturally supported.
Thus the least detrimental choice, balancing
the interest of the twins against each other,
was to permit the operation to be performed.
The court would therefore grant permission
to perform the operation, provided that such
an operation would be lawful
…

As regards the question of lawfulness, the

first important feature was that the doctors
could not be denied a right of choice if they
were under a duty to choose. Although they
were under a duty to Mary not to operate

194
because it would kill her, they were also
under a duty to Jodie to operate because not
to do so would kill her. In those
circumstances, the law had to allow an
escape route through choosing the lesser of
two evils. Faced as they were with an
apparently irreconcilable conflict, the
doctors should be in no different position
from that in which the court itself was
placed in the performance of its duty to give
paramount consideration to the welfare of
each child.
The doctors had to be given the same
freedom of choice as the court had given
itself and they had to make that choice along
the same lines as the court had done, giving
the sanctity of life principle its place in the
balancing exercise that had to be
undertaken. For the same reasons that led to
the conclusion that consent should be given
to operate, the performance of the operation
would be justified as the lesser evil.

195
Limitation on the Right to Consent

Owing to the seemingly inseparable link

between the criminal law and morality, the
question often arises whether the law should
interfere where acts between two consenting
adults do not affect other persons

The question boils down to this: should we

allow individuals autonomy of action or choice
or should we limit this by insisting that nothing
should be done to a man if it is antisocial or to
his disadvantage, even if he consents? – that is,
should we allow people the right to do what they
desire with their own bodies, so long as they do
no harm to others? – this has been the debate
between libertarians and authoritarians

In general, the law defers to individual

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

196
However, there are limits to the right to consent
– the law seeks to deprive us of the legal ability
to consent to certain acts that are regarded as
immoral or socially injurious

In Ghana, the limits placed on the right to

consent are mainly operable in the context of the
application of force under sec 42

The general rule is that the application of force

against a person may be justified on the ground
of his consent – chapeau of sec 42

However, a person cannot consent to his own

death, as sec. 42(a) provides:
…the killing of a person cannot be
justified on the ground of consent

So in Cato it was established that although the

victim had consented to the injection of heroin,
his consent to the injection was not a defense to
a charge of manslaughter

197
Then again, in Pike, the accused caused his
mistress to be anaesthesized by the application
of Carbon Tetrachloride (CTC) soaked on a rag
for inhalation, so that he could satisfy his sexual
passion of copulating with an unconscious
woman. The mistress died as a result of the
dangerous anesthetic and he was convicted of
manslaughter although there was evidence that
she consented to the act

Based on sec 42(a), the practice of euthanasia or

assisted killing is frowned upon in Ghana

Then again, a person cannot consent to the

infliction of a wound or a grievous harm on him
– sec. 42(b)

It was explained by Stephen J in Coney, that:

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

198
 infliction is injurious to the public as well as
to the person

Clearly, with this principle, individual autonomy

as to what to do with one’s body was limited as
long as that choice involved some injury

So in Donovan, the appellant, for the purpose of

gratifying a perverted sexual passion,
administered to a girl of 17 a fairly severe
beating with a cane, which left seven or eight
red marks on her body.
According to the evidence of one of the
witnesses, she overheard a telephone
conversation between the victim and the
appellant wherein they were discussing the girl’s
desire to experience this sexual passion.
When they met, the first remark the appellant
made to the victim was: “Where would you like
to have your spanking, in Hyde Park, or in my
garage.” While, the victim contended that she
did not take this remark serious, the appellant
contended that the victim consented to the
spanking.

199
The issue was whether the existence or lack of
consent was essential to the guilt of the
appellant. Although the appellant was
discharged for a misdirection of the jury, the
Court of Criminal Appeal stated the position of
the law, the essence of which is captured in sec.
42(b) that:
If the act is unlawful in the sense of being in
itself a criminal act, it is plain that it cannot
be rendered lawful because the person to
whose detriment it is done consents to it. No
person can licence another to commit a
crime. So far as the criminal law is
concerned, therefore, where the act charged
is itself unlawful, it can never be necessary
to prove absence of consent on the part of
the person wronged in order to obtain the
conviction of the wrongdoer…As a general
rule, although it is a rule to which there are
well-established exceptions, it is an unlawful
act to beat another person with such degree
of violence that the infliction of bodily harm
is a probable consequence, and when it is
proved, consent is immaterial

200
Then in Brown, a case which generated great
media attention in the U.K., the appellants
belonged to a group of sadomasochistic
homosexuals who willingly and enthusiastically
participated in the commission of acts of
violence against each other for the sexual
pleasure which it engendered in the giving and
receiving of pain. The activities took place at a
number of different locations, including rooms
equipped as torture chambers.
The activities included:
 branding with a wire heated with blow lamp
 setting alight the nipples and navel and
dousing them
 hitting the penis with a ruler and holding the
scrotum with spiked gloves
 inserting map pins into the buttocks
 hitting the body with stinging nettles etc

It was held that:

Consensual sado-masochistic homosexual
encounters which occasioned actual bodily
harm to the victim were assaults occasioning
actual bodily harm, and unlawful wounding,

201
 notwithstanding the victim’s consent to the
acts inflicted on him, because public policy
required that society be protected by
criminal sanctions against a cult of violence
which contained the danger of the
proselytisation and corruption of young men
and the potential for the infliction of serious
injury.

However, consent by a person for the infliction

of a wound or a grievous harm may be justified
if the wound or harm is caused, in good faith, for
the purposes or in the course of medical or
surgical treatment
– sec 42(b)

However, consent to the use of force for the

purpose of medical treatment does not extend to
improper treatment or negligent mistreatment
– sec 42(c)

Still on medical treatment, consent may be given

by a parent or guardian on behalf of a child
under 18yrs against the will of the child for the

202
medical or surgical treatment or for the benefit
of the child – in such a situation, the child
cannot revoke the consent
– sec. 42(d)
- W (A Minor)

Along the same lines, consent may be given by a

prison authority on behalf of prisoner or by a
medical authority on behalf of an insane person
for the use of force against that person for the
purposes of medical or surgical treatment or for
his benefit
– sec. 42(d)

In the case of an insane person, this provision

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

Still on medical treatment, force may, in good

faith, be justifiably used on a person for the
purpose of medical or surgical treatment or for
his benefit if that person is unable to give or
withhold consent by reason of

203
  intoxication, or
 insensibility – for instance Persistent
Vegetative State or Coma
- sec 42(e)

However, such consent may be revoked or given

by a person authorized by the intoxicated or
insensible person or by a person authorized by
law

What about harm caused in the course of a fight?

Does a person who engages in a fight consent to
being harmed?

Flowing from the rationale underlying the

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

This is so whether the fight was lawful or

unlawful

204
Does this apply to boxing organized according
to the Queensbury Rules?

It would be difficult to establish that a blow

delivered in a boxing bout was intended to cause
harm, unless perhaps one boxer head butts the
other or kicks him

205
Revocation of consent

Consent, once given, may be revoked, and when

it is revoked, it ceases to have effect or justify
force
– sec. 42(g)

What is the consequence for relying on

invalid consent?
- sec. 14(h)

206
Provocation

The law recognizes human frailty in the context

of temperament – so that a person who is
incensed to the point of losing his self control to
commit a prohibited act is, under some
circumstances, excused from full criminal
responsibility

Where a crime is committed in circumstances of

extreme anger, the law takes the view that
responsibility of the person angered is not total
due to the extraordinary emotional state of anger
in which he was put

This is the province of provocation – which

looks to what the victim did to the accused, or to
what some other person did to the accused, to
invite the response of the accused

Devlin gave the classic definition of provocation

in Duffy [1949] 1 All ER 932, as:
…some act, or series of acts, done…which
would cause in any reasonable person, and
actually causes in the accused, a sudden and

207
 temporary loss of self-control, rendering the
accused subject to passion as to make him or
her for the moment not master of his mind

The philosophy behind the defence is that a

person who kills in a rage or fit of anger
intended clearly to kill – however, the killing
was the product of extreme anger in the face of
an intolerable situation – thus, the killer was not
a calculating cold-blooded murderer because he
did not have time to reflect on his action – his
was a crime of passion or a hot-blooded crime –
so he should be excused to some degree

Thus, if a person kills another intentionally it is

murder – however, if a person kills intentionally
but as a result of provocation, the killer will not
be held responsible for murder but for the lesser
offence of manslaughter

Therefore, provocation is a partial defence – and

it operates only in cases of homicide – that is,
the defence of provocation can only be raised by
an accused who is under a charge of a crime of
homicide

208
So if death has not occurred, the defence of
provocation is inapplicable

So sec 52(a) provides:

A person who intentionally causes the
death of another person by unlawful
harm commits manslaughter and not
murder or attempted murder, if that
person was deprived of the power of self-
control by an extreme provocation given
by the other person as is mentioned in
sections 53, 54, 55 and 56

Flowing from this, it is not every kind of

provocation that will suffice

To be considered, it must be provocation of an

extreme kind that causes the accused to lose his
power of self-control

Yet, it is not every extreme provocation that will

suffice

209
To be considered, that extreme provocation, that
causes the killer to lose his power of self-
control, must be prescribed by law

There are 4 prescribed situations under our law

that amount to provocation of an extreme kind
that operate to limit the responsibility of a
murderer to manslaughter – a person cannot rely
on any other matter of provocation except one or
more of the 4 prescribed situations

The prescribed situations are contained in sec 53

By the chapeau of sec 53, each of the 4

prescribed situations may amount to extreme
provocation

The first situation or kind of extreme

provocation is prescribed under sec 53(a)
…an unlawful assault and batter
committed on the accused person by the
other person, in an unlawful fight or
otherwise, which is of a kind, in respect of
its violence or by reason of accompanying
words, gestures, or other circumstances of

210
 insult or aggravation, that is likely to
deprive a person of ordinary character
and in the circumstances in which the
accused person was, of the power of self-
control

Under this, the provocation may be one of two

types:
i. unlawful assault and battery which is violent
in itself, and
ii. unlawful assault and battery accompanied by
words, gestures, insults or aggravation

Flowing from this, there is no requirement that

the accused must have anticipated death from
the assault and battery

So it is wrong in law for a court to hold that this

type of provocation is available to the accused if
it is shown that he anticipated death from the
assault and battery

So in Ayi Grunshie, at the trial of the appellant

for murder, the trial judge gave the following
direction to the jury on the issue of provocation:

211
 Gentlemen, if you believe the accused that
he was struck by a pellet from a gun of the
deceased, that would be an assault upon. It is
entirely for you to say whether this assault
made the accused act from such terror of
immediate death or grievous harm, as to
deprive an ordinary person in the
community to which he belongs of his
power of self control

The accused was convicted for murder and he

appealed on the ground that the jury had been
misdirected because it was not necessary that the
assault should put the accused in terror of death
or grievous harm for his act in killing the victim

The Supreme Court, in agreeing with the

appellant, held that:
It is not correct that an assault must put the
prisoner in such terror of immediate death or
of grievous harm, before the prisoner’s
retaliatory act in killing the person who
committed the assault on him, can be
reduced to manslaughter…In the terms in
which the learned judge directed the jury he

212
 directed them to look for a much more
serious result of an assault (i.e. a result
whereby the prisoner is in terror of
immediate death or grievous bodily harm)
than is in fact prescribed by law…

All that is required under sec 53(a) was a

positive response to two questions:

i. was the assault and battery committed on the

accused likely to deprive a person of
ordinary character the power of self-control?
ii.was the accused, in fact, deprived of his
power of self-control?

So in Thornton, the appellant, who began to

suffer from a personality disorder while at
school, met her husband in May 1987 and
realised from the start of their relationship that
he was a heavy drinker and was jealous and
possessive.
In August 1988 they were married. There was a
history of domestic violence and assaults by the
husband on the appellant and in May 1989 he

213
committed a serious assault on her which led to
charges being laid.
In June the appellant told a woman with whom
she worked that she was going to kill her
husband. Later that month the appellant and the
husband had a series of rows over the husband’s
drinking. After one such row, during which the
husband called the appellant a whore, the
appellant went to the kitchen to calm down.
While in the kitchen she looked for something to
provide protection in case she was attacked and
picked up a carving knife, sharpened it and went
back to where the husband was lying on a sofa
and asked him to come to bed.
The husband refused and said that he would kill
her when she was asleep. She replied that she
would kill him before he ever got the chance to
kill her. He then suggested sarcastically that she
should go ahead. The appellant brought the knife
down slowly towards the deceased as he lay on
the sofa.
She thought he would ward it off and did not
mean to kill or harm him, her object being only
to frighten him. The knife entered his stomach,
killing him. At the scene of the crime the

214
appellant told a police officer that she wanted to
kill her husband and that she had sharpened the
knife to kill him because of what he had done to
her.
In a later statement to the police she said that his
death was accidental and that she did not mean
to kill him. She was charged with murder. The
judge directed the jury on provocation to the
effect that in relation to a charge of murder
provocation consisted of some act or series of
acts done or words spoken, or a continuation of
words and acts, which caused in the particular
defendant a sudden and temporary loss of self-
control and which would have caused a
reasonable, sober person to lose his self-control
and to behave as the defendant had behaved. The
appellant was convicted. She appealed on the
ground, inter alia, that the judge had wrongly
directed the jury on provocation.
It was held that in order to reduce a charge of
murder to manslaughter on the ground of
provocation it had to be shown that the
provocative conduct relied on had suddenly and
temporarily deprived the accused of the power
of self-control. Provocative acts in the course of

215
domestic violence over a period of time which
did not cause sudden and temporary loss of self-
control did not amount to provocation in law,
but might be considered by a jury as part of the
context or background against which the
accused’s reaction to provocative conduct had to
be judged. On the appellant’s own statements
and evidence, her action in stabbing the
deceased had not been the result of sudden loss
of self-control induced by the deceased’s
provocative statements. Accordingly, the judge
had not misdirected the jury.

But do mere words or insults amount to

provocation?

Sec 53(a) suggests that mere words do not

amount to provocation – to amount to
provocation, the words must accompany an
assault and battery

Thus, for instance, if a man is taunted and

insulted without being assaulted and battered,
his killing of the victim will not be reduced to
manslaughter on the basis of provocation

216
So in Bedder, an impotent youth visited a
prostitute in a bid to establish his virility. He
failed in the proof, and the prostitute taunted
him. Whereupon he killed. His appeal against
conviction was dismissed

Then in Oduro, the appellant invited his

estranged wife to the farm. A quarrel ensued
between them over the refusal of the wife to
resume cohabitation
He claimed that the woman slapped and insulted
him, therefore, he was provoked and he killed
her
On appeal, it was suggested that the trial judge
misdirected the jury by failing to direct them on
the effect of the insults by themselves, as distinct
from the effect of the slap
It was held that abusive or insulting words by
themselves, however violent, cannot amount to
provocation

Mensa-Bonsu argues that this position of the

law is problematic since it is based on English
notions of the effect of or significance of insults
– mere words do not break bones

217
In her view, this anglo-centric rationale is not
helpful in our situation since our cultural
incidents attach significance to insults in respect
of a person’s honour than even an assault and
battery – what is your take?

It should be noted that the test under sec 53(a) is

that of a person of ordinary character

This suggests that provocation is a defence for

“normal” persons – thus, the law is not
interested in the personal characteristics of the
accused
- Lesbini

That is to say, the defence of provocation cannot

be called in just because the accused is easily
irritable or is irascible, that is, goes berserk at
the least invitation,or does not sleep well like
me, or is under stress like a good number of you,
or had a quarrel with his/her spouse (before the
event), as some of you did this morning, or is
drunk, like some of you plan to do today

218
In other words, the law is not interested in the
personal proclivities of the accused – so if the
accused is unusually excitable or pugnacious –
i.e. aggressive or belligerent, the defence will
fail

The rational is that one must have the power of

self-control – so from the on-set, one must
possess self-control to be able to lose it – a
person cannot lose what he doe not have – in the
same way, a person cannot lose what he has
already lost – an irascible person does not
possess the power of self-control – a drunk
person has already lost the power of self-control

So the test rests on that of person with ordinary

character

Yet, the law considers that cultural differences

dictate that what one society may find offensive
may not be offensive to members of another
society – for instance, what a Dagarti man may
consider offensive may not be offensive to a
Asante

219
Thus, although the law is not interested in the
idiosyncrasies of the accused, yet his race or
cultural background or socialization become
very instructive

For this reason, sec 54(2) provides that “an

ordinary person” means an ordinary person of
the community to which the accused belongs

So the judge has to consider whether the cultural

background of the accused makes him more
susceptible to particular kind of affront – since
that particular kind of affront may be a point of
departure to deeply ingrained honour which
might cause the accused to react strongly than if
he were not of that extraction

Yet there is an interesting twist to all these: if

the test is that of an ordinary person, do ordinary
persons kill out of anger ?

220
The second kind of extreme provocation
permitted under our law is described in sec 53(b)
as:
the assumption by the other person, at the
commencement of an unlawful fight, of an
attitude manifesting an intention of
instantly attacking the accused person
with deadly or dangerous means or in a
deadly manner

Under this situation, if upon the commencement

of an unlawful fight the victim puts the accused
under an apprehension of a deadly attack, by his
actions, then if the accused proceeds to kill the
victim in pre-emptive defence, his liability will
be reduced from murder to manslaughter

Thus, an apprehended deadly attack may

constitute provocation, even though the accused
has yet to sustain the blow

221
The third form of provocation relates to adultery
committed by the spouse of the accused in the
view of accused – or sodomy committed on the
spouse of the accused or a child of the accused
in the view of the accused

Sec 53(c)
an act of adultery committed in the view
of the accused person with or by the wife
or husband, or the criminal offence of
unnatural carnal knowledge committed in
the husband’s or wife’s view on the wife,
or the husband, or child

Thus, a person who causes death upon seeing the

spouse commit adultery or upon seeing a person
perform sodomy on their spouse or child, may
be deemed to have acted under extreme
provocation

It is said that there can be no greater provocation

than this

222
For the defence to avail the accused under this
circumstance, he/she must catch the spouse in
the adulterous act in flagrante delicto – red
handed

Similarly, the spouse or the parent must catch

the person performing sodomy on their spouse
or child in flagrante delicto

The expression, “in the view of”, means exactly

that – the spouse and the adulterer must be
caught in the actual act of sexual intercourse –
the expression does not extend to circumstances
in which immediately recent sexual intercourse
may be inferred
- See Tekyi 7 WACA 122

After the fact knowledge of the adultery or

sodomy will not do

Therefore, mere suspicion will not do

So in Agyemang, the appellant had 3 wives, and

he suspected one of them, Akosua Tawiah, of
having an affair with Yaw Yeboah, an ex-

223
policeman. This brought about a strain in their
relationship and the wife threatened to divorce
him.
The appellant attended a funeral at Droboso and
so did the wife and Yaw Yeboah. According to
the appellant, he watched in anger as his wife
danced with Yaw Yeboah to the tune of adowa,
and the wife used her handkerchief to wipe Yaw
Yeboah’s face.
At some point, Akosua Tawiah and Yaw
Yeboah disappeared from the funeral grounds,
arousing the suspicions of the appellant, who,
from his own account, thereupon took in some
drink, grabbed a cutlass and headed straight for
Yaw Yeboah’s house.
According to the appellant, as he stood behind
the Yeboah’s door, he heard the voice of his
wife for some time. Then there was silence, at
which point he suspected the wife to be engaged
in a sexual encounter with Yeboah.
He waited, and when Yeboah subsequently
emerged from his room to relax, he dealt him
one deadly blow with the cutlass. Yeboah fell in
agony and died later.

224
On his appeal against conviction for murder, it
was held that the defence of provocation was not
available to him since he did not see his wife
actually engaging in a sexual connection with
Yeboah.

Then in Kekey, the appellant, a visually impaired

old man, suspected his wife of infidelity. On the
day in question, he claimed that he overhead his
wife holding friendly conversation with a man in
their room.
He armed himself with a knife, entered the room
and demanded to know from the wife the
identity of the man with whom she was
conversing.
The wife gave him no reply. Instead, she
maneuvered to hold the appellant in such a
manner that the unknown man managed to
escape.
This infuriated the appellant, whereupon he
stabbed the wife 3 times time to death. He was
convicted for murder.
On appeal, it was held that there was no
allegation of adultery and there was no evidence

225
of adultery, but only a suspicion, which was not
enough to ground the defence.

It was also explained in the case, by way of

obiter, that in the case of a visually challenged
person, the expression “in the view of”, under
sec 53(c) should be interpreted as “to the hearing
of” – in the words of the court:
We think if a blind man caught his wife in
the act of adultery and he, on the spur of the
moment inflicted the fatal injury, it would be
wrong to deny him the defence of
provocation for the only reason that he could
not see the act of adultery with his own eyes.
In those circumstances, it would seem to us
reasonable to say that for a blind man the
expression “in the view of” reasonably
means “to the hearing of”.

But what if is the accused is both visually and

hearing impaired?

Then again, a confession of adultery, without

more, will not do
- See Kwadwo Ofori

226
Then in Grunshie, The appellant had two wives,
Kamuri and Ebori; and as he later gave it in
evidence, he killed both of them on June 6,
1959.
His account of the circumstances was that Kofi
Grunshie, a Tigare priest, arrived on a visit to
him and stayed with him for about a month in
the room which he occupied with his wives. The
appellant daily went to work, leaving Grunshie
and his two wives behind.
Returning from work, one day, appellant
discovered that Grunshie had enticed both of his
wives away. He made enquiries, and later
recovered the two wives from another village.
He brought them back, and continued to live
with them peaceably at home.
About three weeks later, as he was returning
from the lavatory he overheard Grunshie
conversing with both of his wives in the room.
When appellant entered the room, Grunshie
climbed to the top of the wall of the room and
jumped through a hole into the yard. Appellant
then picked up a cutlass from a corner of the

227
room and ran out through the door but Grunshie
had already escaped.
The appellant continued that when he returned to
the room his wife Kamuri began to abuse him by
referring to him as “hopeless man, foolish man,
like you,” and she told him that whether he liked
it or not she would go and marry Grunshie. He
concluded his evidence-in-chief as follows:
I then killed her with a cutlass. Immediately
afterwards I went to Dunkwa Police Station
and made a report.
When cross-examined, he said:
I killed my wife because Kofi made me a
fool. I had maintained him for a whole
month; in addition I gave him 6s., and when
he went away there was no need for him to
bolt with my wives and daughter. He was
not satisfied, he came back to speak with my
wives. When I complained, my wife abused
me and said she would marry him.

In his cautioned statement, he said:

I had no alternative than to take my
cutlass,… and cut the two wives, who both
died at the spot. As for my daughter

228
 Abukama, it was by accident that the knife
touched her head and hand, and luckily she
did not die.
On appeal against his conviction for murder, it
was held that:
There was no evidence that the deceased (or
the other wife of the prisoner) was seen in
the act of adultery with Kofi Grunshie on the
fatal night. It was not even suggested that
Kofi Grunshie was found in any
compromising situation with regard to the
wives, from which adultery could be
inferred. We find ourselves utterly unable to
discover any fact from which provocation
could legally be drawn, so as to reduce such
intentional homicide to manslaughter…a
sudden confession of adultery by either
spouse, without more, can never constitute
provocation of a sort which might reduce
murder to manslaughter…

Then again, a statement by a spouse that he/she

intends to commit adultery will not do
- Ellor

229
The fourth situation that may amount to an
extreme provocation relates to a violent assault
and battery committed on the spouse, child,
ward, or parent of the accused in his view or
presence

Sec 53(d) provides:

…a violent assault and battery committed
in the view or presence of the accused
person on the wife, husband, or child, or
parent, or any other person who is in the
presence and in the care or charge of the
accused person

- Rose
- Frafra

This formulation seems to be different from the

that of the adultery and sodomy situation in one
major respect – whereas the adultery and
sodomy situation requires that the act must have
occurred in the view of the accused, the assault
and battery situation suffices if it occurs in the
presence of the accused – presumably, in the

230
assault and battery situation, the accused need
not have actually seen the act

So in Kokomba, Tordo Konkomba and Kwabina

Basare went out hunting. Basare returned to the
village to report that he had shot Tordo
Konkomba in the bush during the hunt. The next
day, Tordo’s father and uncle and some other
people pounced on Basare and beat him to death.
They claimed that by seeing their son and
nephew wailing in agony, they were provoked to
kill Basare. Justice Ollennu observed that:
[sec 53(d)] can apply only where the assault
and battery were committed “in the view or
presence of” the [accused]. There is no
evidence that the appellants (or either of
them) witnessed the act of the shooting of
Tordo Konkomba, or were anywhere within
the precincts where Tordo was shot, so that
they could have seen it done. Seeing the
unfortunate Tordo in agony some time after
he had been shot cannot relate back to the
moment of shooting.

231
It should be noted that the assault and battery
situation is also relationship based – in this case,
wife, husband, child, parent, ward – this
suggests that a violent assault and battery
committed on say, an aunt, uncle, grandparent,
cousin, niece, nephew etc. of the accused will
not do, as long as that person is not in the care or
charge of the accused

Any of the four discussed situations may operate

to avail the accused of the defence of
provocation

However, merely fixing oneself under one or

more of the four recognized situations of
extreme provocation does not automatically
assure a successful plea of provocation – this is
because there are some circumstances the
existence of which may deprive the accused of
the defence of provocation, even if it is shown
that he labored under an extreme provocation

These exclusionary circumstances are provided

for in sec 54, the opening paragraph of which
reads:

232
 Despite proof on behalf of the accused
person of a matter of extreme
provocation, the criminal offence shall not
be reduced to manslaughter if it
appears…

The first exclusionary circumstance is contained

in sec 54(1)(a) – where the accused was not in
fact deprived of the power of self-control by the
provocation

Thus, if it is shown that the accused did not, in

fact, lose his power of self-control, the defence
will not be available to him

So in Atta, the appellant caught his wife and his

brother having sex. Later on he discussed the
issue with the wife as to why she went in for his
brother. He was not satisfied with his wife’s
explanation, so he invited her to the latrine and
slashed her to death with a cutlass.
He then returned to his room, took his gun and
proceeded to his brother’s shop. He had a short
discussion with the brother and shot him to
death.

233
It was held that at the time he killed his wife and
brother, he was not in a state of passion as to
make him no longer master of his mind. And
that in the circumstances, he was not deprived of
the power of self-control.

The second exclusionary circumstance relates to

time lapse or the recovery of self-control under
sec 54(1)(c), which provides:
…that, after the provocation was given,
and before the accused did the act which
caused the harm, a time elapsed or
circumstances occurred that an ordinary
person might have recovered self-control

The rationale is that if time elapses, or the

accused recovers his self-control in the sense of
regaining his composure after the provocation,
and he proceeds to kill the provocateur, suck
killing only speaks to revenge

However, the driving consideration for the

institution of the defence of provocation is not to
create an avenue for revenge

234
Admittedly, killing another when provoked, in a
sense, amounts to revenge – but it is revenge of
a special kind since it is not planned or thought
through – it is a spontaneous reaction in the heat
of the moment brought about by intolerable
circumstances – so it is different from pure
revenge in the case of a cold-blooded killer, who
deliberates and weighs the options before
proceeding to the kill

Under the defence of provocation, we are

concerned with an impulsive killer, who had no
time to engage in detached reflection

Thus, for a successful plea of provocation, the

reaction of the accused must be spontaneous,
leaving no room for reflection

Therefore, if there is a cooling down period –

that is, if the accused had room and time to
reflect and to regain his composure, then his
killing of the provocateur thereafter is pure
revenge – which the law gravely frowns upon

235
In other words, lapse of time or the recovery of
one’s composure, negatives the element of
spontaneity and the requirement that the accused
must have lost his power of self-control

So in Konkomba, it was held that the killing

could not be reduced to manslaughter on the
ground of provocation because such a time had
elapsed between the assault complained of and
the their killing of the alleged provocateur that
an ordinary person would have recovered his
self-control.
Ollennu opined that:
…the incident as related by the appellants
themselves shows that the act of killing
Basare took place a long time after the
shooting. The appellants therefore, could not
in law have still been deprived of the power
of self-control by provocation; indeed, on
their own showing they acted wholly from
the preconceived purpose of causing the
death of Kwabena Basare, in order to avenge
the death of Tordo Konkomba.

236
It should be noted that the cooling down period
depends on the circumstances of each case – so
each case should be decided on its own merits

The third exclusionary circumstance relates to

the accused forming a previous intention to harm
or kill the provocateur or to engage him in an
unlawful fight before the provocation was given
- sec 54(1)(b)

So as the illustration goes:

A, who has long been seeking an occasion to
fight in a deadly manner with B, kills B. here,
if the jury think that A engineered a situation
of being in B’s way for the purpose of taking
an opportunity which might occur to fight
with B, the criminal offence of A is not
reduced to manslaughter by reason of the
blow which A received from B.

- see Appianing

The accused will be deemed to have formed a

previous intention to cause death where, in the
course of a fight, he uses deadly or dangerous

237
means, when the victim has not used or
commenced to use deadly or dangerous means

This is so, although before the accused used the

deadly or dangerous means, the victim had dealt
him a blow or harm that amounts to extreme
provocation
- sec 54(3)

This position applies where the accused intended

or prepared to use deadly or dangerous means
way before he was provoked
- sec 54(4)

The fourth exclusionary circumstance relates to

the instruments or means employed by the
accused or the cruel or other manner in which he
used the instruments or means
- sec 54(1)(b)

The rationale is that great cruelty, excessive or

overwhelming force, or ruthlessness speak of
pre-meditated mens rea

As the illustration goes:

238
 A receives a slight blow from a weaker
man, B, and he beats and kicks B to
death. A’s criminal offence is not reduced
to manslaughter

So in Donkor, the deceased, Akua Nsiah, found

the appellant on her farm apparently stealing her
palm nuts. She accosted him and according to
the appellant, she rained insults on him and hit
him twice with a palm branch the size of his
wrist, whereupon he lost his self-control and
killed.
In this statement to the police, the appellant
indicated that he did not initially intend to kill
her. But sensing danger of her reporting him, he
decided to kill her. In his words, “As I hit her
with my cutlass, she was wounded. She then
raised an outcry. As she continued shouting, I
decided to kill her if not she would go and report
me. I slashed her so many times with my cutlass
and eventually she died.” The killing appeared
to be savage indeed.
It was held that the defence of provocation was
not available to the appellant because his
actions, from his own words, indicated that he

239
had formed an intention to kill. That if truly the
appellant had not formed an intention to kill, he
would have stayed his stand and stopped any
further attacks the moment he realized that the
deceased had been wounded by his first cutlass
blow.

- see also Larti

So in all these situations, the accused will be

excluded from the benefit of provocation even if
its shown that he was extremely provoked

But what if the accused is provoked by a person

and he mistakenly kills another person? – this is
the province of mistake as to person giving
provocation or the phenomenon of displacement

The rule is that provocation by a person is not

provocation to kill a third party

However, where the accused is provoked by a

person and he ends up killing another person, he
will be entitled to the defence of provocation if it
is shown that he killed the other person under

240
the mistaken belief, on reasonable grounds, that
that other person was the provocateur
- sec 56

The question also arises as to whether a lawful

act or a lawful blow can amount to provocation

Here the law is that a lawful act may amount to

provocation, notwithstanding its lawfulness, if
the accused did not believe or had no reasonable
means at the time of knowing or had reasonable
ground for supposing that the act was lawful
- sec 55

241
 SECOND SEMESTER

SPECIFIC OFFENCES

Inchoate Offences

The ordinary meaning of the word “inchoate”

refers to something that is beginning to develop
or only partly formed

In law, an inchoate offence is one that is began

but not completed (i.e. being at a point between
its inception and its penultimate state in time) or
an act that is, to all intents and purposes, fully
complete but does not achieve the result desired
by the perpetrator

So where a person sets out to commit an offence

and he is halted or defeated before he is able to
commit the last in the sequence of the series of
acts that would complete the offence, we say he
has committed an inchoate offence

242
Then also, where a person fully completes the
series of acts that would ground the offence, but
does not achieve the desired result, we say he
has committed an inchoate offence

We may analyze it this way – a crime first

occurs in the mind – it is then considered and
brooded upon – preparations are then made in
furtherance of the achievement – it is then
carried into execution – it may be successful or
unsuccessful

The steps up until the actual execution of the

deed are inchoate in nature

Then also, if the deed is complete but is

unsuccessful (i.e. the desired result is not
obtained), then the unsuccessful deed is also
inchoate in nature

Some writers argue that the term ‘inchoate

offences’ is misleading and erroneous because it
gives the impression that it is something which
is not yet complete – counter argument

243
There are 4 types of inchoate offences known
under our criminal jurisprudence, namely:

 conspiracy
 abetment
 attempt
 preparation

Though, we also have crimes that may be termed

as double inchoate offences – e.g.
 conspiracy to abet
 abetment of a conspiracy
 abetment of attempt

244
Conspiracy

Conspiracy, under our law, is any of the

following permutations:
 agreement by two or more persons to
commit a crime
 agreement by two or more persons to abet a
crime
 two or more persons acting together to
commit a crime
 two or more persons acting together to abet
the commission of a crime

The main determinant is the element of

agreement

If one harbors criminal intentions in one’s mind,

it is not punishable

If one communicates his criminal intentions to

another, without more, it is not punishable

However, if you communicate your criminal

intentions to another – and you suggest to the
other that you desire to carry your intention to

245
fruition, and that other agrees to go along with
your designs to commit the crime, the agreement
itself is criminal even if neither of you has lifted
a finger or never lifts a finger in furtherance of
the agreement

One mind intending to commit a crime is of no

moment – but two minds agreeing to commit a
crime is criminal

Here, a legal fiction is instituted that the very

plot or plan or agreement to commit a crime is
not merely an intention lying in the mind, but an
actus reus and a mens rea in itself, hence a
crime

Conspiracy is treated under sections 23 & 24 of

Act 29

Section 23(1) provides that:

Where two or more persons agree to act
together with a common purpose for or in
committing or abetting a criminal offence,
whether with or without previous concert or
deliberation, each of them commits a

246
conspiracy to commit or abet the criminal
offence

From this, there must be:

 plurality of minds – i.e. at least two persons
 agreement to act together with a common
purpose to commit a crime or abet the
commission of a crime
o in terms of the agreement, there must be
an intention to agree, which agreement
is in respect of a common design to
commit a criminal offence

Plurality of Minds

From the formulation in section 23(1), there

must be at least two conspirators for the charge
to suffice

That is, the offence of conspiracy contemplates

the involvement of at least two persons since a
person cannot agree with himself

It used to be the rule that a man could not

conspire with his wife since they two become

247
one upon marriage – thus, the husband and wife
had become one, and the husband was that one

This legal fiction is no longer good law today

A person can only be held for conspiracy if he

conspires with another person – that is to say,
the other party to the agreement must be a
person

Thus, a charge of conspiracy will not hold if the

other party to the supposed agreement is alleged
to be a non-person, say a spirit.

So in Blay, the appellant represented to the

complainant that if the complainant could
produce ¢4,800, he would invoke a spirit which
could multiply that sum. After some persuasion
from the appellant, the complainant paid the
sum.
The appellant then took the complainant about
midnight to mile 12 on the Accra-Winneba road
and the Teshie beach on three occasions. On
two of these occasions, the appellant spoke and a
voice replied to the hearing of the accused.

248
The complainant was finally given a pillow case
containing some items with instructions not to
open it till three days had elapsed. When he
opened the pillow case, it contained stones and
bundles of newspapers cut into the size of
currency notes. The appellant was found liable
for conspiracy to defraud.
On appeal, Justice Archer held that the
conspiracy count not be sustained because
conspiracy involved an agreement between two
or more human beings and not between one
human being and an unknown voice or spirit.

Justice Archer was right on the peculiar facts of

that case, however, his dictum appears to
suggest, mistakenly, that one can only be held
liable if he conspires with a human being.

The operative word in sec 23(1) is person, which

implies that one may be held liable with
conspiring with a legal person – which in law
and by definition under sec 1, may be a natural
person or a corporate person – thus, the other
party to the agreement need not necessarily be a
natural person – it may be a corporate person,

249
like a company – see Mensa-Bonsu, “Conspiracy
in Two Common law Jurisdictions”

Since one person cannot be guilty of conspiracy,

on a charge of conspiracy, if all the accused are
acquitted except one, that one must also
acquitted, unless it is proved that he conspired
with some other person not named in the charge
or at large

So in Bossman, as a result of adverse findings

made against the accused persons at the Ollennu
Commission of Inquiry into irregularities and
malpractices in the issue of import licences, the
first and the second accused were charged with
conspiring with the Minister of Trade to extort
money, and the first and the third accused were
also charged with conspiring with the Minister
of Trade to commit wilful oppression.
The issue arose as to the effect of acquittal of
one conspirator on the remaining conspirator.
It was held that in that case, the remaining
conspirator should also be acquitted on the
charge.

250
However, this rule only applies where all the
accused are tried together – where the accused
are tried separately, it is possible for one person
only to be found guilty of conspiracy and the
others acquitted on the charge in their various
trials – this is because several factors affect a
trial, and what occurs in one trial may not
necessarily occur in another trial – for instance,
an accused may be acquitted on a charge for
reasons that has nothing to do with his/her
innocence – for example, the accused may be
acquitted on a technicality and this technicality
may not be present in the separate trial of the
other conspirators

Indeed, one person can be held guilty of

conspiracy where the co-conspirators are
unknown or are on the run or where the co-
conspirators are not amenable to justice, like
diplomats

For a detailed discussion on these points, see

Mensa-Bonsu, “Conspiracy in Two Common
Law Jurisdictions”

251
The question arises whether a person can be held
liable for conspiracy where the co-conspirator is
an undercover police officer on a mission to nail
the other for a crime – the difficulty here is that
in reality the officer was not in agreement with
the other person – he was in agreement only on
the surface – thus bringing up the question
whether the plurality requirement has been
satisfied

There are two schools of thought on this point,

namely:
 the unilateral school, and
 the bilateral school

The unilateral approach posits that the

requirement for liability is simply that there
must be an agreement between two or more
persons – the law does not require that the
agreement must be genuine – if the individual in
question intends to join with others to commit a
crime and he believes he has so joined, this
should be sufficient to found liability regardless
of the actual fact of agreement – and if the
individual in question misapprehends the true

252
intent of other persons with whom he sought to
join, it may have a negative effect on the
successful accomplishment of committing the
crime, but it does not detract from the culpable
state of mind of that individual

The bilateral approach, on the other hand, is

based on what is termed the “defence of
impossibility” – which is to the effect that the
two minds must both be culpable for any one of
them to be guilty of conspiracy – this is because
the thrust of the offence is the agreement – so if
one is in fact agreeing to the proposition, but the
other is indeed pretending to be agreeing, the
two minds are seemingly ad idem but factually
at cross purposes – thus, the mind that was in
fact agreeing to the proposal should not be held
liable, because the other mind was in fact not
agreeing and never intended to carry out the
purported agreement

What is your take on the two schools – which

one would you advocate?

Mensa-Bonsu prefers the unilateral approach

253
In Canada, it seems that the bilateral school is
the preferred approach – the Supreme Court of
Canada held in Dynar [1997] 2 SCR 462 that
when one member of a so-called conspiracy is a
police informant who never intended to carry out
the common design, there can be no conspiracy
involving that person

The idea is that to be part of the agreement, you

must have an intention to carry out the common
design

The Agreement

The crime of conspiracy is complete as soon as

the words of the agreement are spoken

So the actual commission of the crime is merely

an icing on the cake for the prosecution – it is
not a requirement for the establishment of
culpability for conspiracy

The detailed means of carrying out the crime

need not have been settled

254
The conspirators will be liable even if the crime
plotted is to be committed in the future and even
if the plot has started to fall apart

The requisite mens rea here is that of intent – so

the two minds must agree on the criminal object
– therefore, knowledge of the existence of the
agreement must be proved against each alleged
participant

That is to say, a person cannot accidentally

stumble into a conspiracy with no knowledge of
its existence

Therefore, merely being informed of the

conspiracy or merely listening in on a discussion
of a criminal adventure does not render one
liable

Liability arises only where the person assents to

or approves of the criminal scheme

Therefore, a person will be exculpated on a

charge of conspiracy, if he dissociates himself

255
from the agreement even if he was present when
the agreement was procured

And a person becomes a member of a

conspiracy only by his own acts or declarations

Thus far, we have established the point that the

agreement is crucial to found liability –
however, proving the fact of agreement is an
uphill task because it is rare in conspiracy cases
to find direct evidence of the agreement, which
is the gist of the crime.

Thus, the SC has held that the fact of agreement

may be proved by evidence of subsequent acts,
done in concert, and so indicating a previous
agreement – this was in Commissioner of Police
v. Afari, where the appellants were charged with
conspiracy to defraud by false pretences. It was
argued that there was no evidence of an
agreement between the appellants and that since
the only evidence adduced was in respect of the
substantive charge of fraud by false pretences, it
was irregular to include in the charge a count of
conspiracy.

256
The SC held that the law of conspiracy as
contained in section 23 (1) of Act 29 is wider in
scope and in content than the English law on that
subject. That in Ghana, the offence of
conspiracy consists not only in the criminal
agreement between two minds, but also acting
together in furtherance of a common criminal
objective.

This decision suggests that often-times where

two or more persons act together, it presupposes
that there was an agreement of their minds
contemporaneous to their act, unless it can be
shown that their acting together was merely by
chance or plainly fortuitous

On this authority, the agreement may be inferred

from the conduct or statements of the accused,
as for instance where a meeting is held to design
the criminal adventure and the agreement is
carried further with the actual commission of the
crime

So in Azametsi, all the appellants and the

deceased, Kumade Mensah Zormelo, lived at

257
Kedzi, a fishing village in the Volta Region.
They all belonged to one fishing group of which
the first appellant was the head. The first
appellant was the owner of the fishing nets and
he employed the members of the group.
In accordance with their usual practice, the
group met at the house of the first appellant on
29 September 1967 to examine their accounts
for the day, and it came out at this meeting that
the time for their yearly sacrifice was at hand.
This sacrifice was one of offering to their fetish
or god a human-being, so that the fetish might
usher them into a bumper fishing season.
The deceased, Kumade Mensah Zormelo, was
present at the meeting. It would appear that at
this meeting a decision was secretly reached by
some of the members of the group that the
deceased was the one who ought to be offered
for the sacrifice.
The meeting ended at about 10 p.m., and as the
deceased was walking home in the company of
the Michael Kwasi Agbelinawo, and some of the
appellants, he was suddenly gripped by the fifth
appellant. Michael Kwasi Agbelinawo ran away
in fright.

258
The fifth and sixth appellants took the deceased
to the house of the first appellant, and there he
was killed and buried in a bathroom in that
house. The killing was witnessed by the wife of
the first appellant, who testified against her
husband and the role of the other appellants in
what was described by the court as a wicked and
gruesome murder.
In her words:
I knew one Mensah Zormelo. He is now
dead. I know how he died. I remember one
night when I was in bed, I cannot tell the
time, I was lying down in the compound of
our house. I saw Ayi,the second accused. I
also saw Kwame Hine, the fourth accused,
Mensah Hukpe, the third accused and
Tosine, the sixth accused and also Amuzu
Kporku the first accused. They came into the
house and sat down in the bathroom in the
house.
Ayi, the second accused, got hold of
Zormelo. He was killing him and he asked
me to come and act as a fetish priestess in
shouting Hoo woo.’ It is a fetish cry. I did as
I was told. By then I was standing at the

259
entrance of the bathroom when the incident
was taking place. He said I should cry like a
fetish to enable him to kill Zormelo with a
knife. When Ayi was cutting the throat of
Zormelo, my husband, the first accused, was
sitting down in the bathroom near them. The
third accused dissected the stomach of the
deceased. After Ayi had killed him the third
accused took the knife from the second
accused and took out the intestines of
Zormelo. The fourth accused was the one
who dug the grave into which the deceased
was buried in the bathroom. It was the
fourth accused who got hold of the deceased
before the second accused killed him. He got
hold of the deceased by the waist. When the
fourth accused held Zormelo by the waist
the second accused was holding the head of
the deceased. The deceased was lying down
at that time.
The fifth accused was holding the arms of
the deceased at the back of the deceased.
The sixth accused was holding the feet of
the deceased Zormelo. After the killing and
removal of the intestines, Ayi the second

260
 accused took the enamel pan containing the
intestines to make sacrifice. He Ayi, the
second accused, said that to me. After Ayi
had left, they dug the grave and buried the
body. The fourth accused dug the grave and
the third accused and the sixth accused and
the fifth accused buried the deceased.
Ayi, the second accused, was having the
enamel pan by the time they came into the
house and into the bathroom. At the time
Ayi was killing Zormelo, the enamel pan
was under Zormelo to receive the blood of
the deceased. After the body had been
buried Ayi, the second accused ordered me
not to tell anybody of what had happened. I
obeyed what he had said and I did not tell
anybody. I could not tell all that was in the
enamel pan at the time Ayi took it away.

Three days after the burial, all the appellants

came to exhume the body and subsequently
dumped it into the sea, with the help of other
members of the group. The body was however
washed ashore at Lome, where a post-mortem
examination was performed by a specialist

261
pathologist who was of the opinion that the
deceased was murdered before being put into the
sea. The appellants were charged with the
offences of conspiracy to commit murder and
murder.
On appeal, the question arose whether there was
evidence of conspiracy against the first
appellant.
It was held that the crime of conspiracy consists
in an agreement or acting together by two or
more persons with a common purpose for or in
committing or abetting a crime whether with or
without any previous concert or deliberation.
That it is not always easy to prove agreement by
evidence, but it can be inferred from the conduct
of and statements made by the accused persons.
In the present case if the evidence of the first
appellant's wife that the first appellant was
present during the killing of the deceased and
later procured other persons to dump the dead
body in the sea was accepted then the presence
of the first appellant in the bathroom where the
killing took place, could not be accidental but
was in furtherance of the common purpose.

262
The question also arises whether conspirators
can adhere to the pact at different times?

The answer is YES – agreement may be reached

with different people at different times and
places

For this purpose, the agreement may take one of

two forms:
 chain conspiracy, or
 wheel or umbrella spokes conspiracy

Chain Conspiracy

Here, the conspirators are joined together as in a

chain link – all the individuals are involved in
one conspiracy and linked by a common purpose
although they may have been recruited at
various times or places

In a chain conspiracy, the conspirators may not

even be acquainted with one another – each
member may only know the one who enrolled
him or the one he enrolled – thus the
conspirators may never have seen each other and

263
may never have corresponded, yet they are liable
as long as they are linked by a common criminal
enterprise

In line with this, a person who joins a conspiracy

does so at his own peril – this is because, in law,
a person who joins or participates in the
execution of a conspiracy which was previously
planned before his admission, is equally as
guilty as the planners even if that person did not
take part in the formulation of the plan or did not
know when or who originated the conspiracy

Case in point is Otchere. This case was the trial

of five accused persons who were alleged, as
members of the United Party in exile, among
whom were the first two accused and Obetsebi-
Lamptey, to have held meetings in 1961 and 62
in Lomé in the Republic of Togo where it was
agreed to overthrow the Government of Ghana
by unlawful means and also that the last three
accused persons subsequently joined in the said
conspiracy. The prosecution maintained that in
furtherance of the said agreement Obetsebi
Lamptey came to Accra in May 1962, and that

264
the attempted assassination of the President at
Kulungugu on the 1st August, 1962, and the
series of bomb outrages perpetrated in various
parts of Accra thereafter were in furtherance of
the objects of the agreement.
It was held that a person who joins or
participates in the execution of a conspiracy
which had been previously planned would be
equally as guilty as the planners even though he
did not take part in the formulation of the plan or
did not know when or who originated the
conspiracy. So that if the prosecution proved
that the third, fourth and fifth accused persons
joined Obetsebi Lamptey in Accra and
participated in the execution of the plans agreed
to at Lomé, they would be just as guilty as the
original planners of the conspiracy.

Flowing from this, the general rule is that in a

chain conspiracy the participants are liable for
the whole and not just the part they played

Wheel or Umbrella Spoke Conspiracy

265
Here, a single person at the center enrolls all the
other members who remain unknown to each
other

All the other members are unrelated except that

they are linked to a common co-conspirator who
is the hub connecting the others who are like the
spokes, much like a bicycle wheel or umbrella
frame

In such a case, each conspiracy is treated as a

separate count and is thus severable or separable
from the others

Scope of Liability for Conspiracy

The general rule is that the acts of a co-

conspirator in furtherance of the conspiracy are
binding on the others

Thus, all persons engaged in a conspiracy are

deemed to have approved all actions thereunder

266
This is the effect of sec 24(1) read together with
sec 23(1), especially the phrase “whether
without a previous concert or deliberation”

For a conspirator to be held liable for the acts of

a co-conspirator, the acts of the co-conspirator
must be in furtherance of the conspiracy

That is, where two or more persons embark upon

a conspiracy, each of the participants is
answerable for the acts done in pursuance of the
joint adventure including such acts as were
incidental to and necessary for the achievement
of the adventure and were in the contemplation
or ought to have been in the contemplation of
the participants at the time the adventure was
embarked upon

Thus, it is not every act or declaration by a

conspirator that will bind his co-conspirators

Therefore, where one of the participants takes a

different course and goes beyond what has
agreed upon or what was in the contemplation of
the parties, he alone would be liable for those

267
acts – the other participants will not be liable for
his unauthorized acts or for acts that go beyond
the scope the adventure

Thus, for a conspirator to be held liable for the

acts of his co-conspirator, the law looks to the
contemplated purpose of the conspiracy and the
context of the furtherance of the conspiracy from
a mere agreement to a substantive crime

So in Teye alias Bardjo, the first, second and

third appellants together with two other persons,
agreed on a joint enterprise to break into and
enter the deceased's house to steal therefrom. In
the course of the execution of the joint
enterprise, the third appellant went beyond what
had been agreed upon, by killing the deceased
because the deceased had recognised him and
mentioned his name.
It was held that he alone should be responsible
for the death of the deceased.

Defences to a Charge of Conspiracy

268
It appears that there is no defence to a charge of
conspiracy

Therefore, a conspirator cannot countermand –

countermand is to revoke, cancel or rescind a
decision – the law holds the view that
countermand only avails an accused with respect
to offences to be committed in the future

However, conspiracy is an offence that is

committed the moment two or more people
agree to act together or act together to commit or
abet a crime, so even if you countermand, it is
too late because the agreement has been reached
before you countermanded – therefore, your
liability was well grounded before you
countermanded – thus, your countermand has no
effect in law – you are still liable

Thus, though you may recant by changing your

mind and abandoning the acts necessary in
carrying out the proposed criminal venture, yet
you cannot undo the act of your previous
agreement, so you are still liable for the
conspiracy

269
 - see is Boahene [1965] GLR 279

The frightful conclusion is that in Ghana an ill-

advised agreement to commit a crime is
irreversible

Punishment for Conspiracy

Conspiracy does not merge in the actual or

substantive offence, so a conspirator is liable to
be punished for the substantive offense where
the offence is actually committed – and where
the substantive offence is not committed, the
conspirator is liable to be punished as if he
abetted the commission of the offence
 sec 24(1)

It should be noted that punishment for abetment

is the same as punishment for the substantive
offence, except in the case of murder
 sec 21

Therefore, in effect, a conspirator is punished in

the same way as the perpetrator of the

270
substantive offence, whether or not the offence
is actually committed

The advantage here is that if the prosecution is

not able to prove the crime itself, it may be able
to prove the conspiracy

On another score, the offence of conspiracy can

be committed in respect of all substantive
offences

Therefore by sec 24(2), a court having

jurisdiction to try the substantive offender also
has jurisdiction to try the inchoate offender –
cujus juris est principale, ejusdem juris erit
accessorium

Therefore, where a new offence is created, there

could be liability for a conspiracy to commit that
offence although the statute creating the offence
does not specifically say so
 see Ex parte Ofosu-Amaah (No.2)

271
Sections 23(1) and 24(2) are of general
application – thus the prosecution can add a
conspiracy charge to any offence

Jurisdiction

Ordinarily, jurisdiction in criminal matters is

territorial – i.e. a court may only try an offence
committed within the jurisdiction

However, where conspiracy is alleged, our law

vests jurisdiction in our courts to try a
conspirator where the person is within the
jurisdiction and he agrees with another person
who is outside the jurisdiction for the
commission of or abetment of a crime in the
jurisdiction or outside the jurisdiction
 Sec 23(2)
 Otchere

For this purpose, “criminal offence” means an

act which, if committed within the jurisdiction,
would be a criminal offence
 Sec 23(3)

272
Attempts

Ordinarily, an attempt is an act that is began but

not completed

However, in criminal law, an attempt also refers

to an act that is completed but does not achieve
the desired result or object

Thus, in criminal law, attempt includes both:

 an act which if completed will amount to a
criminal offence, or
 a complete act which does not achieve the
desired result or object

The prosecution can only charge an attempt to

commit a specific crime – it cannot charge
attempt in a vacuum – so where it is unclear the
offence the accused was attempting to commit,
he cannot be charged with attempt

Attempt requires the doing of an overt act –

thus, an omission cannot be an attempt

273
It should be borne in mind that merely
reconnoitering, that is, looking for an
opportunity to commit a crime may not be
enough to fix one with culpability for attempt –
as for example, where a man drifts along a road
and knocks on houses to see if anyone is at
home and when challenged he fails to give a
convincing explanation of his behavior, it would
be difficult to convict him for attempting to
commit a crime

The point is that an act does not become an

attempt merely because the mens rea is obvious
– there must be something more

In all cases of attempts, the actus reus is an overt

act, while the requisite mens rea is intent

For instance, with respect to attempted murder,

the requisite mens rea is intent to kill, which is
the mens rea for the substantive offence of
murder

So in Dua, the appellant and his wife lived in the

same house at Berekum. On New Year's Day

274
1962, and just before midnight they had a
quarrel about a sum of £G20 which the
appellant had given to his wife to buy certain
clothing materials in Kumasi for her customers.
The appellant appeared drunk and insisted on a
repayment of this amount to him by the wife.
During the altercation that followed the
appellant was alleged to have said to the wife:
"Whether I get the money or not, today I will
kill you." Just as the clock struck midnight and
the New Year was being ushered in the appellant
attacked his wife with a knife and inflicted on
her several injuries.
At the trial the appellant said repeatedly that it
was not his intention to kill his wife, and the
only reason he gave for this murderous attack on
her was that she was the first to stab him on the
wrist (be it noted, only once).
In his direction to the jury the learned trial judge
stated: "For the prosecution to prove that the
accused is guilty of attempted murder, it is
incumbent on the state attorney to prove all the
elements of the crime of murder, except that in
this case instead of proving that the victim is
dead, it will only have to be proved that she

275
nearly died. I am satisfied that the prosecution
had proved that Abena Bio suffered harm that
should have caused her death. I am satisfied that
that harm was caused by the accused. I am also
satisfied that the accused intentionally caused
the harm; he said it was necessary for him to
cause that harm in defence of himself. What is
in dispute is whether the harm he caused was
unlawful."
On appeal, the SC disagreed with the trial judge
and Crabbe JSC who delivered the judgment of
the Court stated:
“With all due respect to the learned trial judge
this court is satisfied that he wrongly directed
himself on the law with regard to attempted
murder. It is not necessary that in a charge of
attempted murder the prosecution should prove
all the elements of the principal crime of murder,
except that the victim did not die. Thus harm is
not always a necessary ingredient in the offence
of attempted murder. A person who fires a
loaded pistol at his intended victim but misses
him is no less guilty of attempted murder than
the one whose victim is seriously wounded in
the head and is only saved on the operation table

276
by the skill of the doctor. Consequently it is
palpably wrong to hold that the unlawfulness of
the harm inflicted ipso facto raises a
presumption of guilty intent on a charge of
attempted murder. It is only evidence of an
intention to kill, for where there is evidence of
what the accused actually did and the degree of
force used by him the jury are entitled to
presume, unless there is evidence to the
contrary, that the accused intended the
consequences that would naturally follow from
the exercise of the degree of force proved by the
prosecution…The principal ingredient of the
offence of attempted murder is the intent to kill.”

It seems that where the requisite mens rea is

recklessness, recklessness as to consequence
may not suffice but recklessness as to
circumstance may suffice

Recklessness as to consequence refers to

collateral risk - you are engaged in an activity to
achieve a specific result, but due to lack of care,
the activity results in an undesired but
foreseeable consequence – for e.g. suppose a

277
person is throwing stones in the hope of
breaking a window. He knows perfectly well
that people are standing near and that he is in
danger of hitting one of them instead. He is
reckless as to hitting a person if he does actually
hit one of them, but if he succeeds in breaking
the window without hitting any of the
bystanders, we cannot not say that he attempted
to hit any of the bystanders – this is because
attempts go with aims and purposes, not
collateral risk

Recklessness as to circumstance refers to aims

or objects or purposes of an act – so if a man
tries unsuccesfully to have sexual intercourse
with a woman without knowing or without
caring whether the woman is consenting, and in
fact she does not consent, we would say that he
has attempted to rape her since no consequence
is necessary in rape
 Khan

Attempts are dealt with under sec 18 of Act 29

278
There is no definition of what constitutes an
attempt – what we have merely tells of the
circumstances under which a person shall not be
acquitted where he/she attempts to commit a
crime

So sec 18(1) states:

A person who attempts to commit a criminal

offence shall not be acquitted on the ground
that the criminal offence could not be
committed according to the intent
(a) by reason of the imperfection or other
condition of the means, or
(b) by reason of the circumstances under
which they are used, or
(c) by reason of the circumstances affecting
the person against whom, or the thing in
respect of which the criminal offence is
intended to be committed, or
(d) by reason of the absence of that person or
thing

Thus our concern is on:

 the means

279
  circumstances of use
 circumstances affecting the object of
the crime
 absence of the object of the crime

If any or all of these factors work against you to

thwart your efforts at committing a crime, you
will not be heard to say that since the crime was
not committed according to your intent, you
should be exculpated

The question as to whether there should be

liability for impossible attempts endangered
quite a debate in jurisprudence – that is – should
a person be liable if he attempts to commit a
crime in a manner in which success is physically
impossible? – as for instance if he shoots at a
dummy believing it to be a man

In some jurisdictions, such an attemptor would

not be held liable upon the theory that the act
done merely suggests an intention to commit a
crime, and not an attempt because the thing he
ended up doing was in no way connected to
what he set out to achieve

280
This debate is settled in Ghana under the
formulations under sec 18(1)

So in Ghana, you take the facts as the accused

believed them to be

If, on the supposed facts, he would have been

guilty of an attempt, then he is guilty of it

Thus, a person may be guilty of attempting to

commit an offence even if the facts are such that
the commission of the offence is impossible –
that is what he/she is proposing to do is
impossible not because of insufficiency or
inefficiency of means, but because it is for some
reason physically not possible, whatever means
one adopts

For instance, the accused will be liable if

unknown to him/her, the substance he believed
to be a narcotic was in fact harmless powder
 Shipvuri

281
Or that the amount of poison he administered to
his intended victim with the view of killing him
is not sufficient enough to kill a human being
 White

Or that he gives another a glass of water to

drink, believing it to be poison

Or that the intended victim’s constitution is too

strong to be killed by the dose of poison
administered

Or that the intended victim was so strong that he

overpowered the thugs sent to murder him

Or a safebreaker who finds, when he gets to the

safe, that it is too difficult to open

Or that the liquid he has carried believing it to

be gasoline with the intention of burning down a
house, is in fact, water

However, if a person does something believing

he/she is committing a crime, but what he does
is in law not a crime, he/she is not guilty of an

282
attempt, because even though he thinks he is
committing a crime, that supposed crime does
not exist – he/she is attempting an imaginary
crime and not a crime that is impossible of
performance owing to the circumstances

On another score, ineptitude or inefficiency does

not inure to the benefit of the accused

Thus, if A points a gun, believing it to be loaded,

and meaning immediately to discharge it at B. A
has committed the criminal offence of an
attempt, although the gun is not in fact loaded

Then again, merely because the subject of the

crime, be it a person or a thing, is absent from
the intended crime scene does not inure to the
benefit of the accused

So for instance, if the accused shoots into a

room with the intention of killing another but
that other is in fact absent from the room, the
accused is still liable

283
Then also, if a pickpocket puts his hand in a
man’s pocket only to find it empty, he is still
liable

We pointed out previously, that what we have

just discussed are merely circumstances under
which a person shall not be acquitted when
he/she has attempted to commit a crime

What, then, in law amounts to an attempt?

There is no attempt to define attempt under Act

29

At common law, it is often said that the act

constituting attempt must be proximate to the
actus reus of the offence – or that it must be
closely connected to the actual commission of
the offence

In Haughton v. Smith a common sense approach

was proposed – it was remarked therein that
…normally, when a person commits a
deliberate crime he begins by making any
necessary preparations and then he sets out

284
 to take the various steps which culminate in
the final act which accomplishes the crime.
But he may stop or be interrupted at some
stage. Then the question will be whether he
has gone so far that he can be said to have
attempted to commit the crime…Any
attempted definition would, I am sure, do
more harm than good. It must be left to
common sense to determine in each case
whether the accused has gone beyond mere
preparation.

In Ghana, it appears that to amount to an

attempt, the act done must have been such as
may be regarded as an irrevocable step
toward the commission of the offence that
lends itself to no other interpretation – that is
to say – the point of no return

So in Obeng, Amissah JA laid it out thus:

Where the accused voluntarily abandons the

venture, any test based on the last act
dependent on himself breaks down.
Admittedly where the accused has done

285
 everything dependent upon himself and the
commission of the full offence is frustrated
by some intervention beyond his control, the
act must amount to an attempt. That,
however, does not mean that every act
should reach this stage before it qualifies as
an attempt…not every act towards
committing a full offence amounts to the
crime of attempt…Acts amounting merely
to preparation have to be distinguished from
those which amount to attempts. I think a
useful test to apply is to ask whether the
conduct of the accused, looked at
objectively, without regard to any
subsequent confessions or admissions which
the accused may have made, can be
considered as aimed only at the commission
of the particular offence.

See also Button

Punishment of Attempt

The question has been posed as to why we

should punish for a mere attempt

286
On the one hand, the argument runs like - the
attemptor thinks he will succeed – if we fail to
punish the attemptor but punish the person who
actually succeeds in committing the crime, it
would lead to the incongruous situation of
punishing success and rewarding failure

Not punishing the attemptor amounts to

suggestion that he is welcome to try to commit
the crime again and while at it, he should apply
more skill to ensure success

On the other hand, some scholars argue that

there is no point in punishing the attemptor in
the same degree as the person who actually
commits the offence, since, for crying out loud,
the offence has not been committed

 See Michael Davis, “Why Attempts

Deserve Less Punishment than
Completed Crimes”

In Ghana, like in most jurisdictions, we have

opted to punish attemptors – and in line with this

287
policy, except in the case of attempted murder, a
person convicted of an attempt is liable to be
punished to the same degree as if he committed
the substantive crime
 Sec 18(2)

However, a person under imprisonment for 3 yrs

or more who attempts to commit murder is liable
to suffer death
 sec 49

Sometimes an act which amounts to an attempt

to commit one crime is at the same time the
actus reus of another crime – for instance,
attempted murder may at the same time be
causing grievous bodily harm – attempted rape
may be indecent assault – attempted robbery
may be unlawful entry – attempted arson may be
being on premises for unlawful purpose etc.

In such situations, the convict is liable to be

punished either for the attempted offence or for
the completed offence
 Sec 18(3)

288
Unlike conspiracy which does not merge in the
substantive offence, attempts merge in the
substantive offence – so where the substantive
offence is actually committed, the accused
cannot be charged with attempting to commit the
offence

That is to say, if the intended offence is actually

committed, the preliminary offence of attempt
disappears

In terms of defences, any defence available in

respect of the substantive offence is also open to
the attemptor
 Sec 18(4)

289
Preparation

At common law, preparing to commit a crime is

not a crime – so it is said that mere preparatory
acts to commit a crime is not punishable – to be
punishable, the act complained of must be
proximate to the actus reus of the offence in
question – so at common law, the task was
establishing whether the act complained of was
an attempt or merely preparatory

However, in Ghana, preparation is a criminal

offence on its own by virtue of sec 19

Our criminal law seeks to punish persons for the

mere reason of preparing to commit a crime

Therefore, unlike the common law situation

where a person must take further steps leading to
the commission of the act in order to be
punishable, in Ghana, merely preparing to
embark on the commission of a crime is
punishable, although no conclusive steps have
been taken toward the commission of any
offence

290
In terms of sec 19, it is an offence to:
 prepare or supply
 or have in one’s possession
 or custody or control
 or in the possession, custody or
control of another person on behalf of
the accused
 any instrument, materials or means
 if the intention is that the instruments,
materials or means are to be used by
the accused or another person to
commit
o a criminal offence by which life is
likely to be endangered, or
o to commit a forgery, or
o to commit a felony

It should be noted that the mens rea requirement

of intent is very important

Therefore, merely having in your possession or

in the possession of another person on your
behalf, such instruments, materials or means

291
without the requisite mens rea will not fix one
with culpability

The focus of the law is on instruments, materials

or means that cannot innocently be possessed
except with the intention of committing a crime

A person who prepares to commit a crime is

liable to be punished as though he he attempted
to commit a crime

292
Accessorial Liability – Secondary Parties to a
Crime – Abetment

A person who actually commits a crime is

termed as the principal

If the principal receives help from another, who

does not commit the crime himself, that other is
the accessory

Thus, an accessory, sometimes called a

secondary party, may be either an inciter or a
helper – i.e. he is the one who incites or helps
with the commission of the crime by the
perpetrator, though he does not in fact commit
the crime himself

At common law, a person may be a principal in

two degrees – either principal in the first degree
or principal in the second degree

A principal in the first degree is one by whose

act the offence is committed – that is, the one
who actually commits the crime

293
A principal in the second degree is the one who
is present at the commission of the crime and
lends some assistance to the one who actually
commits the crime – the presence need not be an
actual presence as in standing by or watching
while lending assistance – the presence may be
constructive – as in a person who keeps watch or
guard at some convenient distance while a
robbery is in progress – that is the look out man

An accessory is not the person who actually

commits the offence – and he is not present
(whether actual or constructive) at the crime
scene when the offence is committed – but he is,
in some way, connected to the crime before or
after the commission of the crime

So we have accessories before the fact and

accessories after the fact

An accessory before the fact is one, who though

absent at the actual commission of the crime,
procures, advises, commands, instigates etc. the
principal to commit the crime – thus if A advises
B to kill his wife and B does it in the absence of

294
A, B is the principal, and A is the accessory
before the fact

An accessory after the fact is one, who knowing

that a crime has been committed, renders some
assistance to the principal

At common law, in respect of the crime of

abetment, we are concerned with the activities of
the principal in the second degree and the
activities of the accessory (whether before or
after the fact)

In Ghana, these distinctions between principal in

the second degree and accessory before or after
the fact have been rendered of no import under
Act 29 – under the Act, we have just the
principal and the abettor – the abettor being the
subject of the offence of abetment

Indeed, the category of accessory after the fact

has been relegated from the crime of abetment to
that of harbouring a criminal under section 25

295
For a charge of abetment to succeed, the act
complained of must precede or be
contemporaneous with the commission of the
offence
- Sarpey

In that case, a police constable, allowed a

vehicle carrying stolen goods to pass him
without checking the contents. He was charged
with and convicted for abetment
On appeal, the SC held that an act constituting
abetment of a crime must precede it or must be
done at the very time when the offence is
committed and that abetment must be
contemporaneous in place, time and
circumstance with the commission of the
offence. In this case, Sarpey's conduct although
suspicious, did not amount to abetment.

Sec 20 (1) of the Act describes what constitutes

abetment. It states:
A person who, directly or indirectly,
instigates, commands, counsels, procures,
solicits, or in any manner purposely aids,
facilitates, encourages, or promotes, whether

296
by a personal act or presence or otherwise,
and a person who does an act for the
purposes of aiding, facilitating, encouraging,
or promoting the commission of a criminal
offence by any other person, whether known
or unknown, certain, or uncertain, commits
the criminal offence of abetting that criminal
offence, and of abetting the other person in
respect of that criminal offence

As the illustrations go –

A encourages B to commit murder. Here A

commits the criminal offence of abetting murder

A offers B money to assault C. Here A commits

the criminal offence of abetting an assault on C

A and B are fighting unlawfully. C and others

hinder a peace officer from stopping the fight.
Here C and the others have committed the
criminal offence of abetting the fight

297
Pay attention to the several verbs used therein –
instigate, command, counsel, procure, solicit,
aid, facilitate, encourage, promote

There is no requirement that the verbs be

specified in a charge – so the charge could
simply read “Abetment of a specified crime” –
this is safer because the shades of difference
among the verbs are far from clear

However, we will attempt an examination of the

several verbs

Instigate

Instigation speaks of incitement – it involves

sowing criminal ideas in the mind of another –
i.e. words or conduct suggested to another
person intended to persuade him to adopt a line
of criminal conduct

In other words, instigation involves reaching and

seeking to influence the mind of another to the
commission of a crime – or urging the person on
to commit a crime

298
It may take various forms, such as, suggestion,
proposal, request, exhortation, gesture,
argument, persuasion, inducement, goading,
arousal of interest etc.
- Nkosiyana

There is no requirement for the prosecution to

prove that the instigation or incitement actually
influenced the mind of the intended person –
that is, the effect of the act of instigation or
incitement on the mind of the intended target is
of no importance

Therefore, merely instigating another is enough

to ground liability – it matters not whether the
instigation had any effect on the intended person
- R v. Assistant Recorder of Kingston-
Upon-Hull; Ex parte Morgan

On this same authority, the prosecution need not

prove that the principal would not have
committed the crime but for the incitement

299
Command

Command involves giving instructions to

another for that other to commit a crime – it
often occurs in the context of service men –
army, police etc.

Counsel

Counsel connotes advising, admonishing etc a

person to commit a crime

Mensa-Bonsu is of the view that with respect to

counseling, unlike instigating, liability is
incurred only when the crime is actually
committed according to the given advice –
therefore, in the case of counseling, there is no
liability unless the crime is actually committed
She finds support for this proposition in R v.
Calheam [1985] 2 WLR 826 – wherein it was
observed that unlike the offence of incitement at
common law, in the case of counseling, the
actual offence must have been committed, and
committed by the person counseled

300
However, it seems to me that this view is not
supported by the Act – there is no indication in
the Act of such a distinction as to when liability
arises – more important, under sec 20(3), a
person is still liable to be punished for abetment,
whether it be counseling or otherwise, even if
the offence is not actually committed – this is
especially so, as all acts of accessoryship have
been subsumed under the umbrella term of
abetment

There is no indication that one act of abetment

exposes the abettor to liability only where the
offence is actually committed but the others
expose to liability even if the offence is not
actually committed

It seems to me that under Act 29, all acts of

abetment found liability whether the offence is
actually committed or the offence is not
committed

301
Procure

To procure is to get another to commit a crime –

procurement may take the form of making
arrangements for equipment for the commission
of the crime or of hiring or getting an expert,
like a professional assassin, to do the job –
contract killing

The act of procurement must have been done

with the intention of securing a crime – thus,
where one is asserting a legal right or charting a
legal course, he is within his rights, and liability
does not arise even if it was foreseeable that
others would take advantage of the situation to
commit a crime

So, where in installing a rival chief, there is the

possibility that a rival faction would oppose the
installation and in the process violence could
erupt, and violence indeed erupts, that cannot
ground a conviction for abetment
- Rep v. Tema District Magistrate
Grade I; Ex parte Akotia

302
And where by going on a lawful procession or a
lawful march, there is the possibility that an
opposing group may meet up with you and
violence could erupt, that does not ground
liability for abetment
- Beatty v. Gillbanks

Aiding

Aiding used to be paired with abetment – so

traditionally, you would hear the expression
“aiding and abetting” – however, since all acts
of accessoryship have been subsumed under
abetment, the expression “aiding and abetting” is
no longer accurate

Aiding involves lending assistance or help to

another to commit a crime

At common law, the aider was required to be

physically present at the crime scene to lend
assistance to the commission of the crime before
liability could arise

303
However, technological advancement in today’s
world renders the requirement of physical
presence obsolete – this is because, now, one
can lend assistance to the commission of a crime
without being physically present at the crime
scene

So where a man opened a bank account under a

false name and description, which account was
used to dispose of forged checks, he was held
liable for abetment
- Thambiah

In the opinion of their Lordships in that case, the

man’s actions in opening and maintaining the
account showed an intention that it should be
used as a vehicle for presenting forged checks,
and that that intention was implemented when
the check came to be presented. At that time, the
man became guilty of abetting its presentation

The principle here is that if a man helps another

in preparation for crimes of a certain nature with
the intention that the other shall commit crimes

304
of that nature, he abets those crimes when they
come to be committed

This is a clear indication of the banishment of

the traditional requirement of physical presence
at the crime scene with respect to aiding

It has been held that a person who supplies an

instrument which is essential to the commission
of a crime is held to be liable as an abettor
- National Coal Board v. Gamble

In that case, the NCB sold a bulk of quantity of

coal. A carrier’s lorry was sent to fetch part of it.
The lorry was loaded with a quantity of coal and
the NCB’s weighbridge clerk (whose task was
simply to find how much coal had been loaded
in order to charge for it) then discovered that the
load was in excess of what was allowed to be
carried in the lorry on the highway.
At that point, he could have insisted that the
lorry be relieved of sufficient coal to make it
law-abiding. But all he did was to call the
attention of the driver to the overload.

305
The driver said he would risk it, and the clerk
handed him the weighbridge ticket (which
passed ownership of the coal to the buyer) and
allowed him to drive away with his load.
It was held that the weighbridge operator, and
through the NCB as his employer, became a
party to the offence of driving the lorry when
overweight.

The decision in Gamble has been criticized

especially by Glanville Williams, who maintains
that the decision proceeded solely on the fact
that the clerk knew of the intended offence and
could have prevented it. Therefore, the court did
not consider the wider scope of the law of
complicity

There is much force in the criticism – this is

because by not considering the wider scope of
the law of abetment, the decision in Gamble has
very far reaching consequences – for as pointed
out by Glanville Williams, it means that a fuel
station attendant who fills up a car that he sees
has worn out tyres or is otherwise not

306
roadworthy, becomes a party to the offence of
using an unfit car when the customer drives off –

also if the attendant knows that the driver has no

licence or insurance, he becomes a party to the
offence of driving without a licence or insurance

– it also means that a barman who supplies a

customer till he goes over the limit, knowing
that he intends to drive home, becomes an
accessory to driving with excess alcohol – it also
means that a host at a party who supplies his
guests with alcohol till they go over the limit,
knowing that his guests intend to drive home,
becomes an abettor to driving under the
influence of alcohol

To curb the wide effect of the rule in Gamble, it

is suggested that liability should not arise where
the assistance is minor or where it is a matter of
social practice or of ordinary business supply

Indeed, their Lordships in Gamble appear to

have based their decision on the fact that the

307
NCB failed to call evidence concerning the real
intention of the weighbridge operator

Presumably, had the NCB called such evidence

their Lordships may have held otherwise. Devlin
J. (as he then was) was at pains to explain that:

…counsel submits that the furnishing of an

article essential to the crime with knowledge
of the use to which it is put does not of itself
constitute aiding and abetting; there must be
proved in addition a purpose or motive of
the defendant to further the crime or
encourage the criminal. Otherwise, he
submits, there is no mens rea. I have already
said that in my judgment there must be proof
of intent to aid. I would agree that proof that
the article was supplied is not conclusive
evidence of intent to aid…It is always open
to the defendant…to give evidence of his
real intention; but in this case the defence
called no evidence. The prima facie
presumption is therefore enough to justify
the verdict, unless it is the law that some

308
 other mental element besides intent is
necessary to the offence.

On another score, it should be noted that the

abettor’s help may be given before or during the
commission of the crime, – examples of help
given before the crime include supplying the
tools or materials for the crime; imparting know-
how; opening a bank account in a false name for
the facilitation of the crime etc.
- See Bainbridge

Help includes co-operation – e.g. acting as look-

out – the look-out gives warning to the
perpetrator if necessary and his presence is a
comfort to the perpetrator – another example of
help is manning a get-away car

The abettor need not share the mens rea of the

principal – it is enough if the abettor knows of
the principal’s intentions – that is, the abettor
must know that he is helping with a crime –

309
Encourage

This connotes moral and psychological support

to the principal that fortifies his resolve to
commit the crime

In this light, a person may be held as an abettor

by being present at the crime scene and
applauding the efforts of the principal without
actually rendering assistance
- Coney

However, a person does not become an abettor

merely by failing to prevent an offence – that is
to say, it is no criminal offence to standby, a
mere passive spectator of a crime
- Clarkson

This is because non-accidental presence is not of

itself conclusive of abetment – that is, a
spectator does not become an accomplice merely
by being present with knowledge of what is
proceeding –

310
That is the mere presence of a person at the
scene of crime does not render him guilty of the
crime or make him an accomplice
- Amoah
- Coney

In Coney, Hawkins J explained:

In my opinion, to constitute an aider and
abettor some active steps must be taken by
word, or action, with the intent to instigate
the principal, or principals. Encouragement
does not of necessity amount to aiding and
abetting, it may be intentional or
unintentional, a man may unwittingly
encourage another in fact by his presence,
by misinterpreted words, or gestures, or by
his silence, or non-interference, or he may
encourage intentionally by expressions,
gestures, or actions intended to signify
approval. In the latter case he aids and abets,
in the former he does not. It is no criminal
offence to stand by, a mere passive spectator
of a crime, even of a murder. Non-
interference to prevent a crime is not itself a
crime. But the fact that a person was

311
 voluntarily and purposely present witnessing
the commission of a crime, and offered no
opposition to it, though he might reasonably
be expected to prevent and had the power so
to do, or at least to express his dissent, might
under some circumstances, afford cogent
evidence upon which a jury would be
justified in finding that he wilfully
encouraged and so aided and abetted. But it
would be purely a question for the jury
whether he did so or not.

Presence at the time of the commission of the

offence would render a person culpable if it is
shown –
i. that the presence was non-coincidental
or accidental – that is, the presence was
on purpose, and
ii. the presence was intended to lend
support to the principal
- Clarkson

In that case, all the appellants were gunners in

the British Royal Artillery stationed in Germany.
On May 9, 1970, an 18 yr old girl came out of

312
hospital where she had undergone an operation
to her womb and went to a party at the barracks
where the appellants were stationed.
At about midnight, she left the party to go see a
soldier friend in his room. He was not in the
room but other soldiers were there. She was
raped by 3 of the soldiers from midnight to
about 3.15 am. They injured her and tore her
clothes to shreds.
Megaw LJ was so disgusted by the incident that
he remarked that to say that those who attacked
her behaved like animals would be unjust to
animals.
At some time after the raping began and when
she had been screaming and moaning, there
were clustered outside the door a number of
men, including the appellants, no doubt listening
to what was going on. They remained there for a
considerable time and some of the soldiers
pinned her down to facilitate the raping. But it
did not appear that the appellants did any
positive act to assist the rape apart from standing
and watching.
There was no evidence that either man had
touched the victim, helped to hold her down,

313
done anything to her, done anything to prevent
others from assisting her or to prevent her from
escaping, or from trying to ward off her
attackers, or that they had said anything which
gave encouragement to the others to commit the
crime or to participate in committing the crime.
It was held that it was not enough that the
presence of the appellants had, in fact, given
encouragement - it must be proved that they
intended to give encouragement, that they
willfully encouraged in fact
In the words of Megaw LJ:
It is not enough, then, that the presence of
the accused has, in fact, given
encouragement. It must be proved that the
accused intended to give encouragement;
that he wilfully encouraged. In a case such
as the present, more than in many other
cases where aiding and abetting is alleged, it
was essential that that element should be
stressed; for there was here at least the
possibility that a drunken man with his self-
discipline loosened by drink, being aware
that a woman was being raped, might be
attracted to the scene and might stay on the

314
 scene in the capacity of what is known as a
voyeur; and, while his presence and the
presence of others might in fact encourage
the rapers or discourage the victim, he
himself, enjoying the scene or at least
standing by assenting, might not intend that
his presence should offer encouragement to
rapers and would-be rapers or
discouragement to the victim; he might not
realise that he was giving encouragement; so
that, while encouragement there might be, it
would not be a case in which, to use the
words of Hawkins J, the accused person
‘wilfully encouraged’.

So it would appear that the appellants were cast

in the context of voyeurs and not active
participants in the sordid affair

The point is clear then that mere intention to

encourage is not in itself enough. There must be
an intention to encourage; and there must also be
encouragement in fact

See also our old friend, Azametsi

315
Facilitate

This connotes easing or making easy the

commission of a crime – for instance, a security
guard who purposely absents himself from post
to make it easy for thieves to raid the premises

For liability to arise, it must be shown that the

person knew that a crime was going to be
committed and he eased the circumstances for
the principal by his act or omission

Promote

You promote the commission of a crime by

knowingly providing the financial or material
resources to the principal to commit the offence

In all acts of abetment, the abettor must do the

act complained of purposely or for the purpose
of securing the commission of the act of the
principal – that is, the abettor must intentionally
do the act – therefore, unintentional or negligent
acts that tend to render assistance to the
principal would not do

316
 - sec 20(1)

Consequences of Abetment

Where the offence abetted is actually committed,

the abettor is deemed to have committed the
offence
- sec 20(2)

Where the offence is not actually committed, it

follows that the abettor is not deemed to have
committed the offence – but this does not mean
that the abettor escapes liability

In the case of abetment of murder, a superior

officer who commands a subordinate to kill
unlawfully knowing that the killing will be
unlawful, is held in a special light

By sec 65 such a superior officer is held liable as

if the subordinate officer had not personally
believed to be under a legal duty to obey the
command

317
This is so even if the subordinate officer’s
liability is reduced to manslaughter or of an
attempt to commit manslaughter by reason of the
belief of being under a legal duty to obey the
command

Where one offence is abetted and another

committed

A person charged as an abettor is responsible

only for crimes within the contemplated purpose
of the crime he abetted

The accessory is not held to have handed the

principal a blank check – but this does not imply
that the abettor is totally exculpated from
liability

The abettor is punishable for abetting the

offence he/she intended to abet
- sec 21(1)(a)

So if A instructs B to assault C and B kills C, A

will not be guilty of abetment of murder but
abetment of assault

318
And if – A incites B to commit robbery by
threats, without violence on C. B in attempting
to commit the robbery, is resisted, and murders
C. Here A commits the criminal offence of
abetting robbery, and not of murder

So where a person abets a particular crime or

abets a crime against or in respect of a particular
person or thing and the principal actually
commits a different criminal offence, or
commits the criminal offence against or in
respect of a different person or thing (i.e.
transferred intent), or in a manner different from
that which was intended by the abettor, the
abettor will not be liable for abetting the offence
that was actually committed except where –

 the offence actually committed was a

probable consequence of the endeavour to
commit the crime intended, or

 the offence actually committed was

substantially the same as the offence the
abettor intended to abet, or

319
  the offence actually committed was within
the scope of the abetment
- sec 21 (1)(a)&(b)

Thus –
A incites B to steal a horse. B, in pursuance of
the incitement, gets the horse by false pretences.
Here A commits the criminal offence of abetting
the offence which B has committed

Or if A instructs B to kill C by poisoning him

and B chooses instead to strangle C, A will be
inculpated for abetment of murder

Under sec 21(1), if the abettor knew that the

principal was carrying a weapon, the inference is
irresistible that the use of the weapon was
contemplated by the abettor

It is a common sense rule that criminals who

carry weapons do so for a purpose and that an
accomplice who knows that a weapon is carried
by the principal also knows the purpose

320
However, this presumption may not hold in all
instances – for e.g. if the abettor is able to
establish that the weapon carried by the principal
was meant merely to frighten and not to kill or
that it was just a status insignia of the
underground world and not necessarily meant
for killing

In the case of rioting and unlawful assembly, the

consequences of abetting are far reaching

By sec 21(2) a person, who abets a riot or

unlawful assembly with the knowledge that the
rioters or unlawful assemblers intend to use or
are likely to use violence, is liable for any
offence committed by any of the rioters or
unlawful assemblers in executing the riot or
unlawful assembly, although the abettor did not
intend to abet the particular offence that was
committed aside of the riot or the unlawful
assembly
- Kofi Antwi

So as the illustration goes:

321
A number of persons assemble together for the
purpose of breaking open a prison and releasing
a prisoner by force. Some of them are armed. If
murder is committed by one of these in breaking
open the prison, all of the persons, whether
armed or not, who took part in or otherwise
abetted the breaking open of the prison, have
committed the criminal offence of abetting
murder, if they knew that arms were carried and
were intended or likely to be used

Punishment for Abetment

It would appear that an accessory cannot be

guilty of a more serious offence than the
principal – the maxim is – accesssorius sequitor
– one who is an accessory to the crime
cannot be guilty of a more serious crime
than the principal offender

Under ancient Gothic law, the accessory was

made to suffer the same punishment as the
principal

322
This rule was borrowed by the old common law
and it runs through our jurisprudence

Thus, an abettor is liable to be punished in the

same way as the principal where the offence is
actually committed
- Sec 20(2)

So as the illustration goes:

A encourages B to commit unlawful entry. B
attempts to commit the unlawful entry, but is
discovered and arrested. Here A is punishable
as if A had committed the unlawful entry

Where the offence is not actually committed, the

abettor is also punishable in the same manner as
if the offence had actually been committed
- sec 20(3)(b)

However, where the offence is not actually

committed and the offence abetted carries the
death penalty, the abettor is liable to suffer
imprisonment for life
- sec 20(3)(a)

323
Then, if a person, who is within the jurisdiction,
abets the doing of an act beyond the jurisdiction,
which act if done in the jurisdiction would be a
criminal offence, that person is punishable as if
he/she had abetted the criminal offence
- sec 20(7)

So as the illustration goes:

A who is in Accra, incites B to carry a ship to

sea and scuttle it with intent to defraud the
underwriters. A is liable.

Defences to Abetment

An abettor is entitled to a defence under the Act,

although his co-abettors or the principal is not
entitled to that defence
- sec 20(6)

In line with this, where the act of the principal

amounts to no crime, the abettor would be
entitled to an acquittal

324
There are two possible defences to abetment –
countermand and withdrawal
- Croft

However, a secret decision to withdraw will not

do
- Rook

Trial for Abetment

An abettor may be tried before, with, or after the

trial of principal

Also, an abettor may be tried even if the

principal is dead or is otherwise not amenable to
justice
- sec 20(4)

Then also, an abettor may be tried before, with,

or after any other abettor, whether the abettor
and any other abettor abetted each other in
respect of the criminal offence or not, and
whether they abetted the same or different parts
of the criminal offence

325
- sec 20(5)

326
SUBSTANTITVE OFFENCES

OFFENCES AGAINST THE PERSON

These are made of crimes involving physical

harm to the body of a person

They range from attempting to make

unpermitted physical contact with a person,
through the slightest of contacts, through contact
of a sexual nature, up to extinguishing the life of
a person

FATAL OFFENCES AGAINST THE PERSON

A fatal offence against a person is one that leads

to the death of the person

These offences are grouped under the genre of

Homicide

327
The killing of a person may be lawful or
unlawful

It is lawful if it is justifiable or excusable in law

or if it is authorized by law

Justifiable killing arises where for instance, a

police officer kills to prevent the commission of
a crime

Authorized killing arises in the situation where

an officer kills in the execution of a death
sentence imposed by a court

Unlawful killing arises where it is actuated by an

intention so to kill or it is done recklessly or
through gross negligence

Unlawful homicide are of two (2) types:

i. murder, and
ii. manslaughter

328
Murder

Section 46 criminalizes murder and the offender

is liable to suffer death

What, then, constitutes murder under our law?

Section 47 defines murder in these terms:

A person who intentionally causes the

death of another person by any unlawful
harm commits murder, unless the murder
is reduced to manslaughter by reason of
an extreme provocation, or any other
matter of partial excuse, as mentioned in
section 52.

In simple terms, murder is intentional killing

through unlawful harm

To succeed on a charge of murder, the

prosecution needs to prove the following
essential requirements

i. the death of a person

329
 ii. the death was occasioned by harm
iii. the harm was inflicted by the accused
iv. the infliction of the harm was unlawful
v. the accused inflicted the unlawful harm on
the deceased with the intention of killing
him

The mens rea requirement here of intention is

very important because it is the main element
that distinguishes the offence of murder from
most forms of the offence of manslaughter
- see Serechi for a discussion on
intentional killing

The actus reus of murder – the infliction of

unlawful harm resulting in death – on the face of
it appears a simple requirement, but in practice it
presents real evidential difficulties

Where the body of the victim is available, then it

is somewhat easier to establish a causal
connection between the unlawful harm inflicted
by the accused and the resulting death of the
victim

330
But what if, the body of the victim cannot be
found – can the accused be convicted in the
absence of a dead body?

Unlawful Harm

Harm is defined by sec1 as bodily hurt, disease,

or disorder, whether permanent or temporary

Unlawful harm is defined by 76 as harm which

is caused intentionally or negligently, and
without any lawful justification or excuse

Intention to Cause Death

Consult your notes on intention and revisit sec

11

Note that we are here dealing with intention and

not motive – that is, the prosecution is not
required to establish the reason for the killing

There may be a reason or several reasons why

the accused killed the victim – that is the story
behind the story

331
But that is not the business of the prosecution –
its job is to establish that the killing was
intentional – if it goes ahead to prove the reason
for the killing that is merely an icing on the cake

The reason for the killing does not equate to the

requirement of intention

Humans have been known to kill without a

reason – thus, even if the killing appears to be
senseless, the accused will be convicted as long
as it is proved that he had the intention to kill

The intention to kill may have been formed for

minutes, hours, days or even years before the
accused made contact with the victim – this is
what is unhappily described at common law as
malice aforethought

The intention to kill may also be a

spontaneously conceived one

Both forms of intention – previously conceived

and spontaneously conceived are enough to fix
the accused with liability

332
On another score, the mere fact that the killing
was violent in nature does not mean the accused
had the intention to kill

So it is not murder merely because the accused

employed violent means in killing the victim

The resort to extreme violence is a pointer to

intention – in other words, it is a probable
symptom of intention – but it is not itself
intention

In all cases, the element of intention must be

established

However, see Boakye wherein the majority of

the judges of the SC appeared to base their
decision on implied or constructive malice to
dismiss the appeal – this is a case in which it
seems to me that the majority got it wrong –
read the dissenting decision of Sophia Akufo
JSC, which I believe to be sounder in law than
the various majority opinions

333
It was noted in Serechi, that in the particular
circumstances of the case the learned judge
should have directed the jury that under section
11(3) they should presume, from the nature of
the harm, that the appellants intended that it
should cause the death of the deceased, unless
there was evidence from the appellants which
showed that they believed that the said harm
would not cause or contribute to cause his death.
Since no such evidence was led by or for the
appellants which could rebut that presumption,
the proper direction the judge should have given
is that the jury should presume intent to kill as a
matter of law from the nature, manner and
circumstances of the harm.

This goes to buttress the point that an intention

to kill may be inferred from the ferocity or
brutality of the attack or act

An intention to kill may also be inferred from

the nature of the instrument or weapon
employed in the killing
- Sene

334
Still on the question of intent, where a person
does an act in good faith, for the purposes of
medical or surgical treatment, an intent to cause
death shall not be presumed from the fact that
the act was or appeared likely to cause death
- sec 67(1)

The discussion on murder is a pointer to the

proposition that not all killings by unlawful
harm is murder – therefore, upon a charge of
murder, which is the ultimate, the trial judge
should direct the jury also on manslaughter
- Serechi
- Iddrisu Gonja

This point arose in Akom in which the trial

judge, in directing the jury, did what a trial judge
shouldn’t do, in the following terms:

… if you cause the death of another person

by unlawful harm, you are guilty of murder.
Unlawful harm means an injury or hurt
caused to a person against the law of the
land.”

335
This direction was clearly wrong because it
assumes that one is guilty of murder as long as
he kills another by unlawful harm, ignoring
totally the very important mens rea requirement
of intent

So on appeal, the SC set the issue in its right

perspective by explaining that:

…not every unlawful act of an accused

which results in death is murder, unless there
is clear evidence which shows that the
accused also intended death to result from the
unlawful harm or the circumstances are such
that a reasonable man would realise that his
act might cause serious and fatal bodily hurt,
and the degree of the probability or
possibility of that type of harm resulting in
death was apparent to him but he is
indifferent or reckless as to the result. Where
the harm, though unlawful, was not done
negligently or intentionally but resulted in
death at least it can be manslaughter only. In
so far as the summing-up appears to have
ignored this vital distinction between what is

336
 in law murder and what is ordinary homicide
we feel that the judge was wrong, and
throughout the summing-up the judge used
similar expressions which ignored this vital
distinction between murder and
manslaughter. For example, where in the
summing-up he stated, "If you are in a crowd
and youfire a gun at A. and hit and kill B., a
human being, in the first instance it is
murder, unless there is some excusable
ground." Surely, this is a wrong statement of
the law.

This brings us to our next fatal offence against

the person

337
Manslaughter

Manslaughter is a first degree felony and does

not carry the death sentence
- sec 50

The sentence ranges from life imprisonment to

any lesser term, depending on the circumstances
- sec 296(1) of Act 30

Manslaughter is various kinds of unlawful

killing (including intentional killing which
would have been murder but for some
extenuating circumstance)

The various types of manslaughter include:

 intentional unlawful killing reduced to

manslaughter by extenuating circumstances
or excuse – for instance, where a person,
under extreme provocation, intentionally
kills another

 unintentional unlawful killing

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  killing resulting from gross negligence – i.e.
negligence that amounts to a reckless
disregard for human life – otherwise known
as involuntary manslaughter

Unlawful Intentional killing Reduced to

Manslaughter

Recap section 47

The circumstances in which unlawful intentional

killing is reduced to manslaughter are dealt with
under section 52

These are:
- i) deprivation of the power of self-
control by extreme provocation given
by the deceased – sec 52(a)

- ii) justifiable causing of excess harm

resulting from such terror of
immediate death or grievous harm as
in fact deprived the accused of the

339
 power of self-control – that is –
manslaughter as a result of excessive
use of otherwise justified force

The principle is that a person who is

permitted to use force cannot exceed the
bounds of such force without incurring
liability – e.g. where a person under
attack responds to that attack with more
ferocity than the situation demands –
except in the situation just described
- see Kontor

 iii) acting in the belief, in good faith

and on reasonable grounds, that one is
under a legal duty to cause death or to
do the act – sec 52(c)

This is normally in the case of service

men

As the illustration goes:

A Soldier is ordered by his commanding

officer to fire upon a mob, there being

340
no necessity for such an order to be
given. Here, if the soldier in good faith
personally believed to be bound to obey
the order, he is not guilty of murder, but
of manslaughter

 iv) killing in circumstances induced

by the effects of childbirth or
lactational psychosis – a woman,
causing the death of her child of less
than 12 months old, at a time when the
balance of her mind was disturbed by
reason of her not having fully
recovered from the effect of giving
birth to the child or by reason of the
effect of lactation consequent upon the
birth of the child
- sec 52(d)

The time limitation of 12 mths is based

on the presumption that within 12 mths
of delivery, any such psychosis would
have manifested itself
- Chima

341
Killing resulting from negligence that amounts
to a reckless disregard for human life –
involuntary manslaughter

There are degrees of negligence in our criminal

jurisprudence – so it is not every form of
negligence that results in a death that would be
considered as manslaughter

As the Supreme Court explained in Tsiba:

Negligence, whether it be a ground for a

claim in a civil court for compensation or an
essential ingredient in the constitution of a
crime, is the omission to take care where
there is a duty to take care, with this
difference that whereas in a civil claim there
are no degrees of negligence, such degrees
exist in a criminal court.

It was also explained in Bateman that:

…for purposes of the criminal law there are

degrees of negligence: and a very high
degree of negligence is required to be

342
 proved before the felony [i.e. of
manslaughter] is established. Probably of all
the epithets that can be applied ‘reckless’
most nearly covers the case…but it is
probably not all-embracing, for ‘reckless’
suggests an indifference to risk whereas the
accused may have appreciated the risk and
intended to avoid it and yet shown a high
degree of negligence in the means adopted
to avoid the risk as would justify a
conviction

Thus, in criminal law, we have, at least, two

forms of negligence:

i. negligence simpliciter, which is the

province of section 12, which provides:

A person causes an event negligently,

where, without intending to cause the
event, he causes it by a voluntary act,
done without the skill and care that are
reasonably necessary under the
circumstances

343
 And then we have

ii. negligence amounting to a reckless

disregard for human life, which is the
province of sec 51 and which is our focus
here

For negligent killing to amount to manslaughter,

it must be of a higher degree than the sec 12
form of negligence

It must amount to a reckless disregard for human

life
– sec 51

This may be constituted in one of two ways:

i. gross inadvertence that causes injury; and

ii. acts done by professionals without the
necessary skill required under those
particular circumstances

And recklessness here is one of two denotations:

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  either doing an act which amounts to
the taking of unjustified risk, i.e. you
foresee there is risk of the
consequence following but you
unreasonably decide to take the risk,
or
 you engage in conduct which involves
the taking of unjustified risk even
though the actor does not know of the
risk

In order to inculpate the accused, the

prosecution must show:

 that even though the accused foresaw

the consequence of his conduct as
probable or likely, he pursued his
conduct with the knowledge of the
risks involved though without the
desire that that consequence should
ensue, and
 that a reasonable man having foresight
would not have taken the risks of such
consequence

345
The test is – what was the foreseeable
consequence of the act and not what the
actual result turned out to be

Therefore, conduct that appears harmless but

which subsequently results in death, would not
be held to be reckless merely because death has
resulted therefrom
 Akerele

All in all, it must be negligence connoting a

scant respect for the value of human life, and not
merely carelessness

So in Kwaku Nkyi, the accused was reported as

being a good and well-behaved student nurse at
the Central Hospital in Kumasi. He was called
by a desperate parent to treat a sick child and he
agreed to do so. He took with him a syringe and
a drug, which he thought was mepacrine, but
was in fact, arsenic (which was identical in
colour to mepacrine).
The accused injected the child with the arsenic.
The child’s condition took a turn for the worse

346
and he died not long after. The cause of death
was established to be acute arsenic poisoning.
He was acquitted on a charge of manslaughter.
This is what Apaloo J. (as he then was) said:

The prosecution’s case if I understand it

alright is that the [child’s] death was caused
by harm, which harm resulted from the
accused’s negligence. The negligence
consisted in the fact that the accused who is
not a qualified medical man took it upon
himself to treat a sick child. In doing so, he
used a dangerous drug without skill with the
result that the patient died.
Although I feel no doubt that the accused
mistook arsenic for mepacrine due to their
similarity in colour, had he been more
skilful than he in fact is, he could have
distinguished between the two. In my
opinion, his voluntary assumption of the
treatment of [the child] without necessary
skill, as he well knew, is itself evidence of
negligence.
As I have said, the fact that the accused was
negligent is plain enough but I cannot find

347
 on the evidence that such negligence was
gross or amounts to a reckless disregard for
human life. At least in one sense at any rate,
the accused in responding to…the invitation
and proceeding [to the house where the child
was] with a view to attending to [him]
showed anxious regard for human life.
In my judgment, it would not be right to
hold that the accused’s negligence amounts
to a reckless disregard for human life simply
because possibly out of inadvertence or want
of care, he mistook the drug that he intended
to administer to the sick child.

Do you think the judge was right in so

holidng?

See also the interesting case of Adomako

Adomako is part of a combined case of 3 appeals

before the English Court of Appeal, intituled R
v. Prentice. One of the cases involved 2 young
doctors – one case involved an electrician and
the other case involved an anaesthetist

348
The English Court of Appeal grappled with the
test to apply in cases of involuntary
manslaughter by breach of duty – since there
appeared to be conflicting authorities

The Court settled on the test of gross negligence

that is – negligence amounting to reckless
disregard for human life or negligence that
amounts to criminality – akin to our test in
section 51

Adomako was in the context of an eye operation.

In this context, the patient is injected with
vecuronium – which paralyses the body and
renders the patient unconscious

Vecuronium is injected via a butterfly needle

inserted in the left arm

Oxygen is supplied through an endotracheal tube

inserted through the mouth and connected to a
ventilator

349
From the mouth the tube runs down the body to
the chest where it is attached to an inverted Y-
shaped Malindrot connector

From the two lower ends of the Malindrot

connector are attached two tubes which go to the
ventilator

At the foot of the operating table is an array of

machines to monitor the patient’s condition

One such machine is the ventilator, which has

two warning systems – an alarm which can be
turned off with a key, and a light which comes
on and off

There is also an electrocardiogram (E.C.G.)

which shows a graph on a video screen of the
electrical activity in the brain

Then there is a Dynamap machine, which

measures the patient’s pulse and blood pressure
– this also has an audible alarm and lights which
go on and off

350
There is also a Manley Pullman machine with
two dials which record the inhalation and
exhalation of breadth

In an eye operation the patient is completely

draped, with only the area around the eye and
the left arm which contains the butterfly needle
visible above it

The two doctors who carry out the operation

work at the head of the patient and they may
need to lean across the chest of the patient. In
the process, the tube from the Malindrot
connector may get disconnected

The anaesthetist sits at the side of the patient – it

is his duty to ensure the safety of the patient –
and he does so by observing him throughout the
operation and by paying careful attention to the
different monitoring devices

A patient was diagnosed as suffering from a

detached retina in his right eye, and an
emergency operation was scheduled – he was

351
injected with vecuronium and two doctors
carried out the operation

In the course of the operation, the anaesthetic

had to attend to an emergency and handed over
to John Asare Adomako, who was said to have
slept for about just 4hrs before the operation
because he did jobs back-to-back

The Operating Department Assistant (O.D.A.)

also left and his replacement did not arrive until
after the incident – this was not proper

About 35 minutes after Adomako took over, the

tube which ran from the patient’s mouth to the
connector became disconnected probably due to
the surgeon’s leaning across the patient’s body

Once the tube becomes disconnected, the patient

has a few minutes to live – ranging between 6
and 11 minutes

Since there is then no oxygen coming into his

body from the ventilator, and since the patient is

352
already paralyzed from the vecuronium, he is
totally unable to breathe

On disconnection of the tubes, the patient’s

chest would immediately cease to rise and fall.
This can be seen or felt

And the fact that he had ceased to breathe would

be indicated on the pressure gauge of the
Manley Pullman machine – the respirator on that
machine would also cease to rotate – and the
alarm on the ventilator should sound after 30
seconds and the amber light on it stops flashing

In this case, Adomako failed to realize that there

had been a disconnection

A cardiac arrest occurred, which caused

irreversible brain damage. As a result, the
patient died of lack of oxygen to the brain

It was established that the ventilator alarm failed

to go – but that alarm can be turned off with a
key – and the prosecution suggested that
Adomako had turned it off

353
Adomako did not appreciate that there had been
a disconnection until after the cardiac arrest took
place – he was aware of the possibility of a
disconnection but he had never experienced one
himself – probably because it was his practice to
tape the tubes to the connector – but in this case,
the tube was not connected by him but by the
anaesthetist he took over from

When Adomako took over he satisfied himself

that everything was fine

At some point, Adomako detected something

was wrong, but he did not think there was an
emergency

He thought the Dynamap machine was

overheating (which sometimes occurs) – so
Adomako injected the patient with Atropine,
thinking he had suffered oculo-cardiac reflex
(this was the right treatment if that was what he
suffered)

354
Adomako then observed that the E.C.G. was
showing a straight line which indicated that the
patient had suffered a cardiac arrest

One of the doctors stopped the operation and

pulled the drape from the patient’s body and saw
that the tube was disconnected – it was re-
connected but it was too late

Adomako was convicted for manslaughter, and

in dismissing the appeal, the Court of Appeal
observed that the jury were within the law to
find him guilty because

 he gave no consideration at any

relevant stage to the possibility that
the Malindrot connector may have
come off
 thus, when he became aware that
something was wrong, his response
was grossly negligent, and
 his failure to perform his essential
and in effect sole duty to see that his
patient was breathing satisfactorily
and to cope with the breathing

355
 emergency which should have been
obvious to him, justified a verdict that
his action was more than mere
inadvertence and constituted gross
negligence of the degree necessary for
manslaughter

Do you agree with Adomako’s conviction?

In the case of manslaughter in connection with

driving of an automobile, the driving must not
only be reckless – it must be of a nature or
manner so gross and outrageous as to
demonstrate reckless and complete disregard for
human life
 Mahama
 Essel

In Mahama, the appellant, a bus driver, was

manning a Leyland bus from Cape Coast to
Elmina. He had stopped at two bus stops for
passengers to embark and disembark, and started
to drive from the second stop going at a speed of

356
about fifteen miles per hour towards a third stop
which was about 175 yards away.
As he was approaching a curve, an explosion
was heard coming from under the bus; the
steering of the vehicle then became stiff and
could not be controlled; the appellant
immediately applied his brakes, but they failed;
he kept to his seat doing all he could in an
attempt to control the vehicle but without
success.
The bus went off the road, knocked down a
stand-pipe, continued and knocked down and
killed a little girl, and it eventually ran into a pile
of concrete blocks that stopped it.
Mechanical examination of the vehicle after the
accident disclosed that a bearing under the
steering wheel had got broken and also that
something had happened which caused an
escape of air working the brakes, thus making
the brakes ineffective.
The appellate court was of the view of that in the
circumstances the appellate could not have been
said to be negligent, let alone that amounting to
a reckless disregard for human life.

357
However, in Essel, the appellant, who was
driving a five ton Bedford truck along the
Accra-Winneba Road in the direction of
Winneba did not slow down at a “T” junction
where people were standing but maintained the
same speed and attempted to overtake the
vehicle in front, causing a collision and resulting
in the death of a bystander
The appellant’s explanation was that the driver
in front signalled that he was going to slow
down and then swerved to the left and did in fact
slow down, “so I speeded on to overtake him,
and immediately I came abreast with his front
wheel, the driver of the truck then stretched out
his hand indicating that he was turning right.”
It was held that the appellant’s conduct
amounted to a reckless disregard for human life
since special care is called for at a “T” junction
even when there are no by-standers.

Manslaughter may also arise in

circumstances where the law imposes a legal
duty on a person to care for another, and he
omits so to do

358
For instance, section 78 imposes a duty on
certain persons to give other persons access to
the necessaries of health and life or of doing any
act for the purpose of averting harm from a
person

We will consider these situations in detail when

we discuss Causing Harm

For our present purposes, it suffices to say that

where a person is under a legal duty to prevent
harm to another person, that other person will be
guilty of manslaughter if the harm which he
failed to prevent results in the death of the other
person, as long as the omission amounts to
reckless disregard for human life
- Instan

359
Genocide

Genocide is a capital punishment offence

– sec 49A(1)

The range of activities considered genocidal in

nature, covers all the possible ways in which the
racial or cultural identity of a group could be
destroyed or diluted

Sec 49A(2) defines the offence of genocide –

read and explain

It appears that the activities engaged in, must be

on such a scale as to leave no doubt that the
intention with which the acts are being done is to
annihilate the group

From the definition, one may be guilty of

genocide without actually killing a person

But would eugenics amount to Genocide?

This is a social philosophy that advocates the

improvement of human hereditary traits through

360
various forms of intervention – to create
healthier, more intelligent people through
selective breeding, prenatal testing and
screening, genetic counseling, birth control, in
vitro fertilization and genetic engineering

361
Suicide

Suicide is taken from the Latin word suicidium,

which is itself derived from sui caedere – which
means to kill oneself

Suicide, is therefore self-murder – that is, a

person deliberately putting an end to his/her own
existence

The State takes an interest in suicide on the

philosophy that no man has the power to destroy
life – not even one’s own life

This is because the malice herein is the person’s

intention to bring to an end his own existence

But the question remains – what punishment

may we inflict on a person who has withdrawn
himself from the reach of the law?

Perhaps, society’s only recourse, as was often

the case a long time ago, is to descend on the
person’s estate or give him an ignominious
burial – atofowuo

362
But whether we attach the person’s estate or
give him some wretched burial, the person is
dead and cannot feel the effect of our supposed
punishment

The idea that he stands to lose his property or

that his remains might be shamed by being
mutilated may deter a person from committing
suicide

But if he’s not deterred and goes ahead to

murder himself, then whatever we do after his
death would be lost on him

Herein lies the futility of punishing suicide

Thus, the offence in respect of suicide has

nothing to do with a person who successfully
kills himself

The focus of the offence of suicide are

i. the one who unsuccessfully attempts to kill
himself (attemptor of suicide), and

363
ii. the one who lends assistance to another in
that other’s unsuccessful or successful
attempt to kill himself (abettor of suicide)

Thus, we have are two offences, namely:

i. abetment of suicide, and
ii. attempted suicide
 sec 57

The abettor of suicide, whether or not the suicide

is actually committed commits a greater offence,
first degree felony, than the attemptor of suicide,
whose crime is a misdemeanor

So the abettor of suicide receives a stiffer

punishment than the attemptor of suicide

The reason for imposing a heavier penalty on the

abettor than on the principal is that it is
considered morally obnoxious to assist another
to take his/her life

364
Child as the Object of Homicide

The offences of murder and manslaughter can

only be committed in respect of a person

A person is one that has been fully brought forth

and not living within the body of another

Thus, if the entity killed is not a person, then we

cannot talk of murder or manslaughter

Thus, in respect of a child victim, the accused

cannot be held for murder or manslaughter if the
child is not a person

If the child victim is not a person at the time of

the killing, then the accused may have probably
committed abortion but not murder or
manslaughter

If the child is killed unlawfully en ventre sa

mere – in the mother’s womb – before it is
brought forth, it is abortion – because the fetus,
although it may have fully formed, is not
considered a person as long as it is still in the

365
mother – so killing it then, does not amount to
manslaughter or murder

But if death occurs after the child is brought

forth from the mother, the accused may be guilty
of murder or manslaughter, as the case may be –

As William Blackstone put it:

To kill a child in its mother’s womb, is
now no murder, but a great misprision:
but if the child be born alive, and dieth by
reason of the potion or bruises it received
in the womb, it seems, by the better
opinion, to be murder in such as
administered or gave them.

The question then is – at what point exactly does

a fetus become a person as to render its killing
murder or manslaughter and not abortion?

For the answer, we turn to sec 66(1)

In order that a child may be considered a
person for the purposes of murder or
manslaughter to cause its death, it is
necessary that, before its death, the child

366
 should have been completely brought
forth alive from the body of the mother

The requirement that the child must be brought

forth alive suggests that a child cannot be the
object of homicide if it is brought forth stillborn
– in that case, if some harm was done to it
before it was brought forth, then we may be
looking at abortion

Now, what does it mean to say that the child

should have been completely brought forth alive
from the body of the mother?

Naturally, it implies passage of the child from

the womb and out of the vagina – or completely
taken out alive by some other means, say a
caesarian session

That is, the child should have completely quitted

the mother – that is – when the last part of the
body is wholly extruded from the body of the
mother

367
This means that even if the child is vagitus
uterinus – crying in the uterus or vagitus
vaginalis – crying with its head still in the
vagina, it cannot be the object of homicide –
because it is still in the body of the mother hence
not a person

However, by section 66(2), the child becomes a

person when it is completely brought forth alive
from the body of the mother even if –

 the child has not breathed, or

 its blood circulation has not
commenced and is still dependent on
the mother’s blood circulation, or
 it is still attached to the mother by the
umbilical cord

The next question is: at what point should the

harm be caused to render the killing of the child
murder or manslaughter?

In other words, should the accused, to be liable,

cause the harm to the child before or after the
child is born?

368
By section 66(3), the accused may be liable for
murder or manslaughter whether the harm was
caused to the child before or after it was brought
forth alive

The law does not concern itself with when the

harm was inflicted – rather, the concern is the
time of death

So if the child dies before it is completely

brought forth alive, it is abortion or miscarriage
– but if the child dies after it has been
completely brought forth alive, then it is murder
or manslaughter, as the case may be

Thus, if you cause unlawful harm to a child

before it is born, you will be guilty of murder or
manslaughter, as the case may be, if the child
dies after it is born

So in Attorney-General’s Reference (No. 3 of

1994), the Respondent stabbed his girlfriend in
the abdomen, knowing her to be 5 months
pregnant with his child. She received medical
attention in hospital where a cut in the wall of

369
the uterus was found and sewn up. The fetus was
mistakenly believed to be uninjured. The stab to
the uterus caused the mother to give birth to a
grossly premature girl, who received exemplary
medical care but survived for only 120 days.
On the death of the child, the Respondent was
charged with the murder of the child. The trial
judged ruled, on a submission of no case, that
even if the facts were established, they could not
in law result in conviction for either murder or
manslaughter.
The A-G referred for the Court of Appeal’s
opinion the questions whether the crimes of
murder or manslaughter could be committed
where unlawful injury was deliberately inflicted
on a child in utero or on a mother carrying a
child in utero where the child was subsequently
born alive but thereafter died and the injuries
inflicted while in utero either caused or made a
substantial contribution to the death; and
whether the fact that the death of the child was
caused solely as a consequence of the injury to
the mother rather than as a consequence of direct
injury to the fetus could negative any liability
for murder.

370
The Court returned the following answers:
i. Murder or manslaughter can be committed
where unlawful injury is deliberately
inflicted either to a child in utero or to a
mother carrying a child in utero in the
circumstances postulated in the question.
The requisite intent to be proved in the
case of murder is an intention to kill or
cause really serious bodily injury to the
mother. Such intention is appropriately
modified in the case of manslaughter; and
ii. The fact that the death of the child is
caused solely in consequence of injury to
the mother rather than as a consequence of
injury to the fetus does not negative any
liability for murder and manslaughter
provided causation is proved.

And in West, where an attempted abortion led to

premature delivery and death of the child, it was
held that if with the intention of causing an
abortion a person does an act which causes the
child to be born earlier than the natural time and
in a state much less capable of living, and it later
dies in consequence of its exposure, the person

371
who put the child in that situation is guilty of
murder, notwithstanding the possibility of
something being done to prevent the death.

We established that to amount to murder or

manslaughter, unlawful harm should have been
visited on the victim – with respect to a newborn
child, then, what amounts to causing harm?

In the case of child as the object of homicide, it

is often difficult to establish whether the child
died from natural causes or whether the child
was killed before or after birth or whether the
harm was inflicted before or after death

The difficulty in determining evidence of

unlawful harm to a newborn has led the law to
presume that in any such case it would be
presumed that the harm was caused to the
newborn before its death
- sec 61(1)

372
The time of birth includes the whole period from
the commencement of labor until the time when
the child so becomes a person that it may be
murder or manslaughter to cause its death
 sec 61(2)

373
Abortion or Miscarriage

The prohibition on abortion is another area

where the state uses its police powers to protect
the unborn

The Act uses abortion and miscarriage

interchangeably

Abortion has and is it still generating a heated

debate – most of it centered on morality and
religiousity – in America, the subject underlines
the fundamental divide between the Supreme
Court judges, typified by the decision in Roe v.
Wade – Indeed, the American society as a whole
is embroiled in this debate – pro-life on one
hand, and pro-choice on the other

As we saw earlier from Blackstone, although the

common law took the position that killing an
unborn child was not murder, yet it was
considered a great misprision

374
In Ghana, abortion used to be completely
prohibited until the advent of PNDCL 102 that
created some exceptions as regards lawful
abortion

So we now have lawful and unlawful abortion

What, then, is abortion or miscarriage?

In medical science abortion is a term used to
describe the event of the expelling of the
developing ovum before the twelfth week of
pregnancy; and miscarriage applies to a situation
where the expulsion takes place between the
twelfth and twenty-eighth week of pregnancy

Abortion or miscarriage may occur

spontaneously – induced by natural causes, in
which case it is not the interest of the criminal
law

Or it may be deliberately induced – then it

becomes of interest to the criminal law

What then, in law, is abortion?

375
In Ghana, abortion or miscarriage is the
premature expulsion or removal of conception
from the uterus or womb before the period of
gestation is completed
 sec 58(4)

Unlawful Abortion

A person who intentionally and unlawfully

causes abortion or miscarriage commits a second
degree felony
– sec 58(3)

Interestingly, the law does not make the actual

abortion alone a crime – the crime also consists
in an act done with intent to procure or cause an
abortion

The offence covers two cases or situations

 first, where a pregnant woman uses
any means with intent to procure her
own miscarriage - sec 58(1)(a) – the
actus reus here consists in 1)
administering a drug, poison, noxious
substance or instrument or any other

376
 means on oneself, or 2) consenting to
the administration by another of a
drug, poison, noxious substance or
instrument or any other means on
oneself
 the mens rea consists in the doing of
any of the prohibited acts with the
intent to cause a premature expulsion
of a fetus from the womb

 the second situation is where anyone

else unlawfully uses means, with
intent to procure an abortion or
miscarriage – sec 58(1)(b)

 inducing a woman to cause an

abortion is an offence

 inducing a woman to consent to

causing an abortion is an
offence

 abetting a woman to cause an

abortion is an offence

377
  attempting to cause abortion is
an offence - Obeng

 supplying or procuring any item

or implement or drug knowing
that it is intended to be used to
cause abortion is an offence

The offence under sec 58(1)(b)(i) is committed

where the effort has been made for that purpose
even if the mother is not pregnant – that is – it is
immaterial that the woman is not in fact
pregnant
- Titley

The drug or noxious substance administered to

cause the abortion or miscarriage need not be
poisonous – it can be any matter that is ingested
or administered for the prohibited purpose
- Hollis

378
Lawful Abortion

For abortion to be lawful, the law specifies who

may commit it, the circumstances under which it
may be committed and the location where it may
be committed

Thus, by section 58(2) abortion is lawful if the

person committing it is a registered medical
practitioner specializing in gyneacology or any
other registered medical practitioner in a
Government Hospital or a registered private
hospital or clinic, or in a place approved by the
Minister under an L.I. under any of the
following circumstances:

 where the pregnancy is the result of a

crime – section 58(2)(a) – the caveat
here is that it must be requested by the
victim or her next of kin or the person
in loco parentis – read together with
section 42(d), this provision suggests
that a girl under 18 may be forced to
undergo an abortion if her parents so
desire

379
 where the continuance of the
pregnancy would result in injury to
the pregnant woman or would involve
risk to her life – section 58(2)(b) – the
consideration here, as Glanville
Williams puts it, appears to be this:
the woman is a developed human
being, sensitive to pain and anxiety.
She is established in the affections of
her family, and upon her the welfare
of other children and of a husband
may depend. Thus, it is far more
important to consider her life and
health than that of a fetus,
representing only a child-to-be, which
has not been fully formed, cannot feel
pain, cannot live outside the womb,
and has not entered the human
community – the caveat here is that
the woman must consent to it, or if she
lacks the capacity to consent, her
guardian or next of kin must consent
to the abortion -
 where there is a substantial risk that if
the child were born, it may suffer

380
 from, or later develop, a serious
physical abnormality or disease – sec
58(2)(c) – is this not suggestive of
eugenics, i.e. that abortion may lead to
the betterment of man’s genetic
inheritance? Or is it a consideration
for the parents of the would be
abnormal child so they would not be
blighted by having to rear a grossly
defective or deformed child? Or is it a
consideration of the tax payer’s
money that would be spent on it in
special health care and educational
institutions? It should be noted that
the mere carrying of undesirable genes
by the would be child will not suffice
– the abnormality or disease must be a
serious one
 it should also be noted that any act
which is done in good faith and
without negligence, for the purposes
of medical or surgical treatment of a
pregnant woman is justifiable,
although it causes or is intended to
cause abortion or miscarriage, or

381
 premature delivery, or the death of the
child – section 67(2)

The question arises as to whether the lawful

abortion should be carried out entirely by the
registered medical practitioner from start to
finish or whether a nurse could carry out the
process under the instructions of the registered
medical practitioner

Where surgical intervention is the method of

termination of pregnancy adopted, no difficulty
arises as to whether or not the termination is by
a registered medical practitioner – because more
likely than not he carries out the entire process

The question is most rife in the context of the

abortion method known as medical induction,
especially in respect of the type known as extra-
amniotic medical induction – here, the registered
medical practitioner initiates the process by
inserting a catheter through which a
postaglandin solution is administered to the
patient, but the subsequent steps in the process
are either in whole or in part carried out by

382
nurses who will sometimes be responsible for
connecting a prostin pump to the catheter so that
the abortifacients can be fed into the patient and
will monitor progress of the process which lasts
on average about 18 hours and can last up to 30
hours – thus, although the medical practitioner is
present at the initial stages, he is absent during
the stages the nurses take over, but he remains
on call and he instructs the nurses accordingly

This was the subject of dispute in Royal College

of Nursing of United Kingdom v. Dep’t of
Health & Social Security – in which the defs
issued a circular to the nursing profession stating
that no offence was committed by nurses who
terminated a pregnancy by medical induction if a
doctor decided on the termination, initiated it
and remained responsible throughout for its
overall conduct and control
The plfs disputed that view, and sought a
declaration as against the department that the
advice in the circular was wrong
The issue was whether the acts of the nurses
could be construed as a lawful abortion carried
by a registered medical practitioner in

383
accordance with a 1967 English Act, which
permits abortion by a registered medical
practitioner under prescribed circumstances
The House of Lords, by a majority decision,
held that the law on abortion should be
construed in the light of the fact that it is
intended to amend and clarify the unsatisfactory
and uncertain state of the law previously existing
and in the light of the policy of the Act, which
was to broaden the grounds on which abortions
might lawfully be obtained and to ensure that
abortions are carried out with proper skill in
hygienic conditions in ordinary hospitals as part
of ordinary medical care and in accordance with
normal hospital practice in which tasks forming
part of the treatment are entrusted as appropriate
to nurses and other members of the staff under
the instructions of the doctor in charge of the
treatment.
Accordingly, provided a doctor prescribed the
treatment for the termination of a pregnancy,
remained in charge and accepted responsibility
throughout, and the treatment was carried out in
accordance with his directions, the pregnancy

384
was ‘terminated by a registered medical
practitioner’

Talk about contraceptives and whether their effect is abortifacient

If these birth control methods are abortifacient,

are their application illegal?

Then there is interesting offence captured as

Concealment of body of child at birth

It is an offence for any person to conceal the

body of a child who has been brought forth,
whether such child was born alive or stillborn,
with the intent to conceal the fact of its birth,
existence, or death, or the manner or cause of its
death
 sec 62(1)

This is not a strict liability offence

The mens rea is the intention to conceal the fact

of birth, existence, or death, or the manner or
cause of the death

385
By sec 62(2) the offence does not apply to:
 a child of less than 6 mths growth
before its birth - This means that one
may only be guilty of the offence if
the child was more than six months
old in the mother’s womb before its
birth

 the case of intent to conceal the birth,

existence or death of the child, or the
manner or cause of its death, from a
particular person – as the illustration
goes – a woman conceals from her
father or mother the body of her child.
She has not committed a concealment
of birth unless she intended to conceal
it from persons generally – There
must be an intention to conceal the
birth, existence, or death of a child
from the whole world, other than the
persons who abetted or consented to
the concealment – so it must be shown
that there was an intention to conceal
the body from persons generally,
except persons who abetted or

386
 consented to the concealment – as the
illustration goes – a woman conceals
the body of her child from all persons
except a nurse who helped in the
concealment. The woman committed a
concealment of birth although she did
not conceal it from her accomplice

Section 62 must be read together with section 63

Therefore, in order to establish an offence under

section 62, section 63 must be fully considered

Section 62 creates the offence of concealment of

body of child while section 63 explains what
may constitute concealment within the language
of section 62, the nature of the concealment and
the kind of child in respect of which the offence
may be committed

For a concealment to amount to an offence

under sec 62, it matters not that the concealment
was intended to be permanent or temporal
 sec 63(1)

387
The abandonment of the body of a child in a
public place is concealment if the purpose of the
abandonment is to conceal the fact of the child’s
birth or existence
 sec 63(2)

Donkor is the locus classicus on this offence

In that case, the Appellant, an 18 year old girl

became pregnant by a man she claimed to be her
boyfriend. There was some interference with the
pregnancy by this boyfriend. As a result, the
baby was expelled and it was found in a public
latrine
The Appellant explained that she went to the
latrine and there, something dropped from her
after which she started bleeding. She became
frightened so she decided to walk to a friend’s
house with a view of informing her of what had
happened. The trial magistrate found her guilty
of the offence of concealment
On appeal, Wiredu J., as he then was, held that
the offence of concealment was not a strict
liability offence.

388
And that to succeed on the facts of the case, the
prosecution needed to prove the following:
i. that the Appellant was delivered of a baby,
ii. that she either secretly deposited it or
abandoned it in the public latrine,
iii. that the fetus was six months old or above
before its birth, and
iv. that she deposited or abandoned the same
with the view to concealing its birth, death
or existence from the whole world other
than those who were accomplices to the
crime

What constitutes secret disposition and

abandonment is a question of fact depending on
the circumstances

389
NON FATAL OFFENCES AGAINST THE
PERSON

SEXUAL OFFENCES

These are offences covering all acts with sexual

connotations, which are either without the
consent of the other party, or with the consent of
the other party but considered inimical to public
health or public morality, engaged in for
pleasure, gratification or to obtain a commercial
benefit

These include: rape, defilement, sodomy,

bestiality, incest, pimping etc.

As Prof. Mensa-Bonsu observes, it is the highly

intrusive nature of sexual acts that calls for their
regulation by the criminal law

390
Rape

Rape is said to be the most reprehensible of all

sexual assaults

The ordinary notions of rape connote violence of

a physical or psychological nature

However, the legal scope is far more extensive

In Ghana the offence of rape is a first degree

felony carrying a sentence of not less than five
years and not more than twenty-five years
 section 97

Although it is a first degree felony it is tried

summarily

So what is rape?

By section 98, “rape is the carnal knowledge of

a female of sixteen years or above without her
consent”

391
Thus, it should be noted from the onset that
unlike in some other jurisdictions, in Ghana the
offence of rape is gender and age specific

The victim of rape can only be a female who is

16 yrs or above

So where the female is less than 16 yrs, legally

she cannot be the victim of rape

Then again, a man cannot be the victim of rape –

indeed, a man cannot even be raped by another
man

And a woman cannot be the perpetrator of rape –

this a function of the legal definition of rape in
terms of the insistence on carnal knowledge –
this formulation excludes women perpetrators
since a woman does not have the natural ability
penetrate an orifice with her genitalia

So how does a man allege that he has been raped

by a woman since the woman did not penetrate
him – indeed, he did the penetration, although
unwillingly

392
However, practically speaking, it seems that it is
entirely possible for a woman to have sexual
connection with a man without his consent

The possibility of a man being raped by a

woman does not lend itself to easy acceptance
because it is largely because as we all know, the
man must be able to maintain an erection before
a sexual connection may be had in any
meaningful way – and the maintenance of an
erection is said to depend on the state of mind of
the man

If this is the case, the argument continues, then

as long as the man maintains an erection he is
signifying his consent to the sexual connection
with the woman

However, the counter argument is that it is

perfectly possible for man to maintain an
erection even though he is not a consenting party
– in the same way it is possible for a woman to
keep herself lubricated although she is not
consenting party – that is to say, a woman, to

393
avoid harm or injury in a sexual attack, may
induce her own lubrication – but this does not
mean that she is a consenting party

Thus, the argument concludes that the

proposition that a man cannot be raped because
the maintenance of an erection is in his power
and dominion, holds no water

Some jurisdictions have acknowledged this

possibility by amending their provisions on rape
to render the offence gender neutral

The gender bias formulation of the Ghanaian

law on rape appears to suggest unhappily that
the lack of consent is always manifested by the
use of force and also that consent once given –
in this case – by the erection of the man’s sexual
organ – cannot be subsequently revoked

But, as we shall see soon, the lack of consent to

a sexual connection does not only arise in the
context of the use of force

394
So should we amend our law to say all
references to penetration includes reception to
make the law gender sensitive in recognition of
the biological physiology of a woman, that her
genitalia cannot penetrate an orifice, but can
receive a penetrant?

On another score, carnal knowledge in the

definition of rape speaks of penile penetration
per vaginam – that is, through or by way of the
vagina

Any other mode of penile penetration does not

amount to rape
 Papadimitropulos

So, on a charge of rape, it is essential for the

prosecution to prove penile penetration of the
vagina in order to succeed – penile penetration
of any other orifice, say the anus or per anum,
does not amount to rape

Thus, the offence of rape is both gender specific

and organ specific

395
The specificity of gender and organ in the
definition of rape was considered by the
Constitutional Court of South Africa in Masiya,
which revealed the undesirebleness of these
specificities – indeed, traced the history of the
offence of rape and concluded that it was a
creation steeped in male dominance over
females – thus, the definition of the offence
appears to need a overhauling

Indeed, in Masiya, the court was prepared to

extend the common law definition of penetration
per vaginam to include penetration per anum –
in the words of Justice Nkabinde:
The consequences caused by non-consensual
anal penetration might be different to those
caused by non-consensual penetration of the
vagina but the trauma associated with the
former is just as humiliating, degrading and
physically hurtful as that associated with the
latter. The inclusion of penetration of the
anus of a female by a penis in the definition
will increase the extent to which the
traditionally vulnerable and disadvantaged
group will be protected by and benefit from

396
 the law. Adopting this approach would
therefore harmonise the common law with
the spirit, purport and objects of the Bill of
Rights.

It should be noted that there is no requirement

that the entire shaft of the penis should have
entered the vagina

The requirement of penetration is merely an

enquiry as to whether any part of the penis went
past the lips of the vagina – so even if only the
small tip of the penis entered the vagina, the
accused would still be guilty of rape

As sec 99 provides, the least degree of

penetration suffices

Then again, the requirement of penetration is not

an enquiry as to whether the man ejaculated

So it does not lie in the mouth of the accused to

assert that he is not guilty of rape because he did
not emit semen
 Marsden

397
Perhaps, the most important element on rape
charge is the lack of consent

A charge of rape cannot succeed if the accused

is able to show that the woman consented to the
sexual connection – that is to say, consent is a
complete defence to a charge of rape

However, the issue of consent in rape cases can

be very problematic – since is so many cases it
is not clear whether the woman consented or not

For instance, an adolescent girl who consents to

intercourse may, to placate her parents, assert
that she did not consent – the parents may then
complain to the police and the girl feels
compelled to keep her lie

There is also the danger of a false allegation

being made out of spite, when the man was in
fact a lover who jilted the woman, or who
slighted her in some way

398
Consent is a complete defense to a charge of
rape – so the prosecution must prove absence of
consent on the part of the female alleged to have
been ravished

Sometimes it is difficult to distinguish between

consent in the ordinary sense on one hand and
mere submission on the other hand

So for instance, when the complainant was

asked in a recent English case, Barbour v. HMA,
whether she consented, she replied: “It depends
what you mean by consent.”

Smith and Hogan note that the distinction

between consent and submission is ‘so vague
that both judges and juries may have quite
different ideas as to its application’

Under Ghanaian law, consent is void if it is

obtained by means of deceit or of duress
 section 14(b)

399
Consent is obtained by deceit or duress if it
would have been refused but for the deceit of
duress
 section 14(f)

In the case of consent obtained by deceit the

overriding question is: “would the victim have
agreed to sexual intercourse if the facts were
truly known to her?”

If the answer is negative, the accused will be

liable
 Williams
 Flattery

In the case of consent obtained by duress, the

overriding question is: “would the victim have
withheld her consent but for the threat”?

If the answer is positive the accused is liable

So, it is rape if the accused induced the victim to

consent to sexual intercourse by threats – that is
– submission by the victim where she is
overpowered or cowed into submission by the

400
accused is no valid consent in law – therefore,
reluctant acquiescence is no consent
– Olugboja

Then again, consent is void if the victim was

under a permanent or temporal incapacity
resulting from intoxication or any other cause, as
to render her incapable of understanding the
nature or consequences of the sexual intercourse
to which she has purportedly consented
 section 14(a)

So, it is rape if the accused obtained the consent

of the victim by administering stupefying drugs
or alcohol to her

So in Camplin, the accused got a girl drunk on

liquor for the purpose of exciting her and having
sexual intercourse with her. She became so
drunk as to be insensible.
It was held that the accused had committed rape
since at the time of the intercourse the girl was
not in a position to give consent

401
It is also rape if the accused knows the victim is
asleep and therefore does not resist because she
is, in that condition, incapable of resisting

So in Young, the victim, a married woman, who

was feeling tipsy after a few drinks, was asleep
with her husband and two kids. The accused
came in through the doorway, which was
unlocked, at about 4 am and proceeded to have
sex with the woman, she being asleep at the
time.
When she awoke, she at first thought the
accused was her husband. But upon hearing him
speak, she looked around, and seeing her
husband by her side, she immediately flung the
prisoner off her, and called out to her husband.
Whereupon the accused ran away but was
apprehended before he could make his escape
certain.
It was held that if a man has or attempts to have
a connection with a woman while she is asleep,
it is no defence that she did not resist

See also Mayers

402
In all these cases, it is immaterial whether the
accused applied force
– Olugboja

A person who has given her consent may also

revoke it – section 42(g)

Therefore, though sexual intercourse is

complete upon penetration, yet it is a continuing
act ending only in withdrawal – therefore, the
accused is guilty of rape if he remains in the
woman after she has stopped consenting

So in Kaitamaki, A New Zealand case that

ended up before the Privy Council, the appellant
broke into and entered a house and had sexual
intercourse with a young woman twice.
He claimed that as to the second sexual bout, it
was after he penetrated the woman that he
became aware that she was not consenting.
However, he proceeded with the intercourse
anyway.
It was argued by the defence that by the criminal
law of New Zealand, if a man penetrates a
woman with her consent, he cannot be guilty of

403
rape by continuing the intercourse after a stage
when he realizes that she is no longer
consenting.
It was held that sexual intercourse is a
continuing act which only ends in withdrawal.
Thus, the conviction of the appellant was well
founded.

Still on the issue of consent, a burning question

that has raged in our criminal jurisprudence is
whether a husband can be convicted of raping
his wife

At common law, male chauvinism is the order –

And the first time we hear of marital rape is

during the time of Oliver Cromwell, when that
great common law lawyer, Sir Matthew Hale
(who lived from 1609 to 1676) posited the
principle in his book Pleas of the Crown that:

…a husband cannot be guilty of rape

upon his wife for their mutual
matrimonial consent and contract the

404
 wife hath given up herself in this kind to
her husband which she cannot retract

From this formulation, it seems that in the days

of Hale a consent to marry was viewed as a
consent to sex at all times and it could not be
revoked

The philosophy was that the marital right of the

husband exists by virtue of the marriage and not
by virtue of the consent given at the time of each
act of intercourse, as in the case of unmarried
persons

This was engendered by the incidents of

marriage at that time, because in those days a
marriage could not be dissolved except by death
– the only way a marriage could be dissolved
then except by death was by a Private Act of
Parliament

After Hale’s highly chauvinistic proposition,

there is no record of any case of a man being
prosecuted for the rape of his wife until in 1949
in R v. Clarke [1949] 2 All ER 448

405
However, before the decision in Clarke the issue
of marital rape was considered in obiter in 1888
in R v. Clarence (1888) 22 QBD 23

Thirteen judges sat on this case and their opinion

on the subject was very divided – a majority of
the judges though appeared to favour Hale’s
proposition

For instance, Baron Pollock remarked that:

The husband’s connexion with his wife is
not only lawful, but it is in accordance
with the ordinary condition of married
life. It is done in pursuance of the marital
contract and of the status which was
created by marriage, and the wife as to
the connexion itself is in a different
position from any other woman, for she
has no right or power to refuse here
consent

So still at this stage, it could be seen that

marriage was considered as an absolute consent

406
to sexual intercourse until the marriage comes to
an end – thus, the rule admitted to no exception

Fast forwarding to 1949 in Clarke, the accused

was charged with the rape of his wife at a time
when a separation order, made by justices on the
ground of persistent cruelty, was in force.
The order contained a clause that the wife was
no longer obliged to cohabit with her husband.
The order amounted to a judicial separation,
which could only be discharged if the wife
committed adultery or if she voluntarily resumed
cohabitation with her husband.
In this case, the wife had not resumed
cohabitation.
It was held that in the circumstances her consent
to marital intercourse was revoked and the
husband was not entitled to have intercourse
with her without her consent

So we see that perhaps for the first time, the

judges were prepared to admit of an exception to
Hale’s formulation albeit in very limited
situations – where it is so revoked by a court
order

407
A few years later, another man was tried for
marital rape – Miller – in that case, the wife left
the husband and filed a petition for divorce on
the ground of adultery
Subsequently, he met his wife and had
intercourse with her against her will
The defence contended that since the woman
was the prisoner’s wife, he could not be guilty of
rape since the consent had not been retracted by
a court
Lynskey J. held that in the circumstances the
man was not guilty of rape since a petition of
divorce brought before a court is not the same as
a court order of separation

Thus, by the time Act 29 was passed, the

common law rule was that a husband is legally
incapable of perpetrating rape on his wife,
unless the parties are judicially separated or
unless the court has issued an injunction
forbidding the husband to interfere with his
wife, or the husband has given an undertaking to
the court in order to avoid the issue of injunction

408
We happily borrowed this formulation under
section 42(g) of Act 29, which, in its original
form, read:

A person may revoke any consent which

he has given to the use of force against
him, and his consent when so revoked
shall have no effect for justifying force;
save that the consent given by a husband
or wife at marriage, for the purposes of
marriage, cannot be revoked until the
parties are divorced or separated by a
judgment or decree of a competent court.

This affirmation of the common law position on

marital rape naturally generated a heated debate
in Ghana in the last decade especially, and there
was a proposal to make marital rape criminal
during the deliberations leading to the passage of
the Domestic Violence Act

The proposal was dropped much to the

annoyance of the feminist movement

409
However, the proposal of the feminist movement
was affirmed through the backdoor by the Law
Reform Commission, which dropped the proviso
in sec 42(g) in the new formulation of Act 29,
which simply reads:

A person may revoke consent which that

party has given to the use of force against
that person, and the consent when so
revoked shall not have effect or justify
force

So, the effect is that, as it stands now, marriage

can no longer be cited as the consent of a
woman to a sexual encounter that will ordinarily
be rape

In short, there is now marital rape in Ghana – so

a husband may be convicted for raping his
wife!!

On another score, as we discussed last semester,

the question arises as to the age of sexual
responsibility for boys – that is, at what age can
a boy be guilty of rape?

410
Defilement

The offence of defilement is known in some

jurisdictions as statutory rape

The ordinary meaning of defilement is to violate

the chastity of a person

Therefore, it would appear that the aim of the

law is to protect the chastity of the object of the
offence from being violated

Thus, at common law, the offence of defilement

was instituted to punish an older male who took
advantage of a young precocious girl – the belief
was that he had corrupted her by introducing her
too early to sex

In effect, the offence of defilement is meant to

protect the victim from herself since even if she
were a willing participant in a sexual act, she is
considered too young and immature to
appreciate the nature and effect of the act

411
Therefore, the consent of the victim is
immaterial since she is deemed not to know the
nature of the act

The offence of defilement is reminiscent of the

old common law action of seduction, which was
meant to protect a father or husband of his
property rights over his daughter or wife,
respectively

In the case of the father, it was thought that his

right to trade-off his daughter to the highest
bidding suitor on the marriage market had been
violated

The driving consideration, in the case of the

husband, was that the honour of his singular
consortium with his wife had been desecrated

Therefore, the father or the husband in question

was entitled to monetary compensation from the
offending uncircumcised Philistine!!!

This was so even when it was the unmarried

daughter or wife who, using her feminine charm,

412
had lured the poor and often meaning-no-harm
defendant to her bed

I do not believe that it was always assumed that

women did not or could not seduce men –
indeed, who among us can deny that sometimes
our unmarried daughters or, our wives (who may
be disenchanted by the spectre of their failing
marriages), having a licentious eye for a man,
whether good looking or otherwise, do employ
their solicitation skills to obtain his sexual
services

In Ghana, by sec 101(1), defilement is the

natural or unnatural carnal knowledge of a child
under sixteen years

And by sec 101(2), the offence is committed

even if the child consented to the sexual act

The minimum penalty for defilement is stiffer

than that of rape – suggesting that sexual assault
on children is considered more serious than
sexual assault on adults

413
Clearly, the aim of the legislature is to
discourage sexual intercourse, be it natural or
unnatural, with children under the age of sixteen
years even if they give their consent to the act

An attempt has been made in sec 101(1) to make

the offence of defilement gender neutral – that is
to say unlike the offence of rape in which the
victim can only be female, under defilement, the
victim may be male or female – because of the
use of the generic word “child”

This means that a woman who has sexual

intercourse with a boy under sixteen years is
guilty of the offence of defilement

However, it appears that the attempt to gender

neutralize the offence is, to some extent, futile
because of the retention of the quaint
formulation of carnal or unnatural carnal
knowledge

As we have seen, a woman does not have the

ability to carnally know a person whether

414
naturally or unnaturally since the female organ
cannot penetrate an orifice

So in the case of a woman facing a charge of

defilement in Ghana, we may find ourselves
faced with the absurd situation in Mason, in
which a married woman had sex with about six
boys aged between 14 and 16 years on various
occasions. She was indicted for indecent assault,
but the prosecution failed because there was no
evidence of her having used force on them, or
even that she made a contact with their person.
Since they had done the penetration with her
consent, no offence had been committed

As Prof. Mensa-Bonsu recommends, we should

amend the definition by removing references to
carnal and unnatural carnal knowledge

On a charge of defilement, the most important

consideration is the age of the victim – he or she
must be under sixteen years of age – so if the
victim is sixteen years or more, the accused
cannot be charged with defilement

415
Therefore, if the victim, being female, is sixteen
years or more, the proper charge to prefer
against the accused is rape, if the sexual
connexion was without her consent

On the other hand, if the victim, being male, is

sixteen years or more, and the accused is male,
the proper charge to prefer against the accused is
unnatural carnal knowledge simpliciter

Defilement arises in one of two circumstances,

namely:
1.where the act is done without the consent of
the victim in circumstances which will
amount to rape if the victim were sixteen
years or more, and
2.where the act is done with the consent of the
victim
- sec 101(2)

Therefore, the element of consent is irrelevant

under a charge of defilement – the accused is
still liable even if the victim consented to the
carnal knowledge or unnatural carnal knowledge

416
This is why the offence of defilement is often
referred to as statutory rape – that is – the
consent of the victim does not inure to the
benefit of the accused – since in law, such
consent is void
– sec 14(a)

All that the prosecution need to prove is that the

victim was under sixteen years when the accused
carnally knew him or her or unnaturally carnally
knew him or her

So in Yeboah, the victim, a nine year old girl,

was alleged to have been defiled by the accused.
In the victim’s own words:

The accused raised me up on to his thighs as

he was seated on a chair…Before the
accused put me on his thighs he took off my
cover cloth and also my drawers or pants.
He put me on his thighs with my face
towards him. My legs were hanging and
could not touch the ground…The accused
then put his penis inside or into my vagina,
and I cried as I was feeling pains.

417
 He pushed his penis into my vagina. [After
that] I just put on my pants and as I was
going home the accused gave me a two and
a half new pesewas piece saying I should
buy some food with it.

The accused flatly denied ever having sexual

intercourse with the child. However, it was
found as a fact that he did
It was held that even though the victim failed to
report or complain to her mother or anyone until
about a week later, it merely showed perhaps
that she was a willing victim; but her consent
was no defense in such a charge

But see C.O.P. v. Sem on a different fact pattern

and the conclusion of the court based on the
peculiar circumstances of that case

The question is, is defilement a strict liability

offence?

Can the accused plead mistake or ignorance of

fact as to the age of the victim?

418
You would recall that by sec 29(1) a person shall
not be punished for an act which, by reason of
ignorance or mistake of fact in good faith, that
person believes to be lawful

Thus, if the accused genuinely believed the

victim to be more than 16 yrs, should that be a
good defence?

Related to the offence of defilement is another

offence that seeks to discourage householders
from permitting defilement of children in their
premises
- sec 106

419
Carnal Knowledge of an Idiot or Imbecile or
Mental Patient

The law seeks to protect persons of subnormal

intelligence from sexual acts whether or not they
consent to such acts
- sec 14(a), and the illustration
thereunder

A mentally handicapped person is deemed a

minor during the continuance of that condition –
therefore, he/she cannot give valid consent to
sexual acts

By sec 102, a person commits an offence if

he/she has a sexual connection with an idiot,
imbecile or lunatic –

- who is in or under the care of a mental

hospital
– does this mean that a person may
freely help himself to an idiot,
imbecile or looney if the looney is not
in or under the care of a mental
hospital?

420
The mens rea requirement is important
- it must be shown that the accused
knew at the time of sexual intercourse
that the victim had a mental incapacity

The age of the victim is immaterial

So in Pressy the accused had sexual intercourse

with a thirty-seven year old female who was an
apparent idiot. It was held that the accused was
guilty

421
Unnatural Carnal Knowledge

At common law, the issue of sodomy was

treated as a taboo subject

William Blackstone remarks:

I will not act so disagreeable a part, to my

readers as well as myself, as to dwell any
longer upon a subject, the very mention of
which is a disgrace to human nature

Then, more recently, in line with English

Victorian “Holier-than-thou” attitude, the charge
against the accused for sodomy in Allen was so
laced with venom as if he was the devil himself

In line with these quaint English notions of

piety, Ghanaian law takes the view that
heterosexual life is the normal thing for human
beings – that is – a normal connection between a
male and a female – that is sex per vaginam

422
Therefore, any other formula is cast by the law
as unnatural – hence section 104(2) provides
that:
Unnatural carnal knowledge is sexual
intercourse with a person in an unnatural
manner or, with an animal

The question is, what is sexual intercourse in an

unnatural manner – as Mensa-Bonsu asks, why
this very quaint formulation – why can’t we just
say sex through the anus if that is what we mean

Our definition suggests that sodomy is unnatural

That is, sex per anum is unnatural – or what is
variously termed, coitus in anum – hitch to the
wrong side of the post – sink the brown – or
usher of the back door

Then also, bestiality i.e. carnally knowing an

animal or permitting an animal to carnally know
one is unnatural, hence criminal

423
A person is guilty of unnatural carnal knowledge
in one of three ways, namely
1. having unnatural carnal knowledge with
a person of sixteen years or above
without his or her consent – because of
the lack of consent, this instance is
equated to rape – hence it is a first
degree felony and the accused is liable
to suffer imprisonment of not less than
five years and not more than twenty-five
years – 104(1)(a)
2.Or, having unnatural carnal knowledge
with a person of sixteen years or more
with his or her consent – this instance is
a misdemeanor because of the existence
of the other person’s consent – section
104(1)(b)
3.Or, having sexual intercourse with an
animal – this instance is a misdemeanor
– sec 104(1)(c)

It is the formulation under 104(1)(b) that makes

consensual sodomy a crime in Ghana – and
since consensual sodomy is a victimless crime, it
is not often reported

424
However, lesbianism is not a crime because it
does not involve penile penetration – as we have
said, a woman does not have the natural ability
to penetrate an orifice with her genitals

425
Indecent Assault

This is the criminal version of sexual harassment

Indecent assault is a misdemeanor punishable by

a term of imprisonment of not less than six
months
- sec 103(1)

Indecent assault involves all acts of sexual

assault not involving penile penetration, whether
natural or unnatural

These include:
- oral sex?
- digital sex
- facial
- pearl necklace (ejaculating semen on
or near the neck)
- teabagging (placing one’s testicles in
the mouth or on or around the face of
another in a repeated in-out-in-out
motion)
- breast fondling
- buttocks fondling

426
 A person may be guilty of indecent assault in
one of two situations, namely:
- forcibly making a sexual bodily
contact with the other person in a
manner that does not amount to carnal
or unnatural carnal knowledge without
the person’s consent – this situation of
culpability stresses the element of
force – in most cases, the absence of
consent suggests a forcible touching
– sec103(2)(a)
- Or, sexually violating the body of the
other person in a manner not
amounting to carnal or unnatural
carnal knowledge without the person’s
consent
– sec 103(2)(b)

In Alawusa v. Osudote, the Appellant forcibly

shaved the pubic hair of his wife. It was held
that since a husband could not be guilty of rape
upon his wife, he could not be guilty of indecent
assault upon her either. This was because acts
that would ordinarily be considered indecent
when occurring between a man and any other

427
woman could not be so regarded, as between a
man and his wife

It should be noted that this case was decided

under the old regime that set store that a man
could not be charged for raping his wife – yet
we have seen that this situation has now changed
and it is possible for a man to be convicted of
raping his wife – so the ratio in Alawusa may
not hold sway today

In any case, the decision in Alawusa suggests

that the man would have been guilty of indecent
assault had the woman not been his wife

We appear to have based our definition of

indecent assault on some physical contact or
sexual violation of another’s body

In that case we may find ourselves arriving at

the seemingly absurd conclusions as in Rogers

In Rogers, the respondent at all material times

lived with his wife and daughter. On two
occasions, he put his arm round his daughter’s

428
shoulders and led her upstairs. She made no
objection or resistance, and no force or
compulsion was used. He then exposed his
person to the child and told her to masturbate
him. On both occasions the child obeyed him
although she did not wish to do so. On both
occasions he was alone in the house with the
child.
On both occasions when he put his arm round
his daughter’s shoulders he did so to lead her
upstairs, intending to conduct himself indecently
towards her. On the first occasion the child
neither minded nor objected to his putting his
arm round her shoulders, but on the second
occasion, knowing the nature of his intention
towards her, she did not wish to accompany him
upstairs, but, nevertheless, she neither objected
nor resisted, but submitted to his request
It was held that it is no indecent assault if a
person merely invites another to touch him. In
the words of Lord Goddard CJ:
Before you can find that a man has been
guilty of an indecent assault, you have to
find that he was guilty of an assault, for an
indecent assault is an assault accompanied

429
by indecency, and, if it could be shown here
that the respondent had done anything
towards this child which, by any fair use of
language could be called compulsion, or had
acted…in a hostile manner towards her—
that is, with a threat or a gesture which could
be taken as a threat, or by pulling a reluctant
child towards him—that would,
undoubtedly, be assault, and, if it was
accompanied by an act of indecency, it
would be an indecent assault… There might
be a case in which the evidence showed that
what was done was against the will of the
child, but, as the respondent used no
compulsion, no force, on the child to go
upstairs, however much we may regret that
we cannot punish him for doing an act
which deserves the reprobation of every
decent man, we feel that the only thing we
can do is to say that the justices came to a
right decision and reluctantly dismiss this
appeal

430
In concurring, Parker J remarked:
I feel constrained to agree, but with extreme
reluctance.

But what if, for instance, a man exposes his

penis to a woman, move towards her and invites
her to have a sexual connection with him –
surely there is no contact here – so admittedly,
this may not amount to sexual violation of the
woman’s body – but is this not a case of a
violation of the woman’s dignity and integrity?

Perhaps, we may do ourselves a lot of good if

we amend the law to include such acts without
specific reference to the body
-see R v. Sargeant

431
Incest

Incest is sexual intercourse between close family

members

Incest, most often, is a victimless crime, so it is

not often reported

The prohibition of incest is perhaps a function of

eugenics – avoiding in-bred offsprings

Incest is considered a taboo in many cultures –

but the familial sexual relationship that is
frowned upon depends on the society in question

So, some societies prohibit sexual intercourse

between people related by birth – some societies
prohibit sexual relations between people related
by adoption or marriage – yet other societies
prohibit sexual relations between people who
grew up in the same household or related
households

432
Thus, depending on the jurisdiction, sexual
relations may be prohibited either –
i. within defined degrees of
consanguinity – relations based on
blood ties, or
ii. within defined degrees of affinity –
relations based on marital ties or
some other form of connection

In Ghana, the law does not prohibit sexual

relations between persons who are related only
by affinity, and not by blood ties
– thus, the law does not prohibit sexual
relations between fathers and step-daughters
or between mothers and step-sons or
between step-siblings

Ghana’s criminal law seeks to prohibit sexual

intercourse between defined degrees of
consanguinity – that is – within defined degrees
of blood relations

That is to say, it is NOT every type or degree of

blood relation that disqualifies two persons from
a sexual union

433
By section 105
- it is incest, if being a male of not
less than sixteen years, you have
carnal knowledge of your
granddaughter, daughter, sister,
half-sister, mother or grandmother
- It is incest if, being a male of not
less than sixteen years of age, you
permit your grandmother, mother,
sister, half-sister or daughter to have
carnal knowledge of you
- It is also incest if, being a female of
not less than sixteen years, you have
carnal knowledge of your grandson,
son, brother, half-brother, father or
grandfather
- Then, it is incest if, being a female
of not less than sixteen years, you
permit your grandfather, father,
brother, half-brother or son to have
carnal knowledge of you

434
Thus, there is no prohibition of sexual relations
say between uncles and nieces, or between aunts
and nephews

It is very important to note that for an accused to

be guilty of the offence of incest, he or she must
know that the other party to the sexual
connexion was within the prohibited degrees of
consanguinity – if the prosecution does not
prove that the accused knew this as a fact, he or
she is entitled to an acquittal
- see the various permutations under
section 105(1)-(4)
- see also Carmichael

It should also be noted that it is immaterial that

the relationship between the accused and the
other person is not traced through lawful
wedlock – even in this case, the accused will
still be culpable
- sec 105(5)

435
Procuration

This offence is ordinarily referred to as pimping

A pimp is a person who finds and manages

clients for prostitutes and engages them in
prostitution in order to profit from their earnings

A pimp may also offer to protect his whores

from rival pimps and whores or from abusive
clients

The criminal law seeks to prohibit pimping

under the offence of procuration

Section 107(1) – read and explain

See the cases of Drury v. R and R v. de Munck

It is important to note that the accused cannot be

convicted of the offence of procuration on the
evidence of only one witness – there must be
corroboration in a material particular of that
witness’ testimony by evidence that implicates
the accused

436
 - sec 107(2)

Corroboration consists of evidence from which a

reasonable inference can be drawn which
confirms in a material particular the evidence to
be corroborated and connects the accused with
the crime
- section 7(1) of the Evidence Act, 1975
(NRCD 323)

Seduction or Prostitution of a child under

sixteen

Section 108

437
Non-sexual and Non-Fatal Offences against
the person

Assault

Historically speaking, the object of the law, in

giving a remedy for assault, is to offer the victim
some means of vindicating his own dignity and
security without recourse to fighting

It appears that assault is now treated as an

everyday occurrence and so presently,
prosecutors do not seem to bother themselves
with it if no serious harm has been done

Assault in criminal law is wider than in civil

law, where assault is merely descriptive of
psychological discomfort by an apprehension of
unpermitted contact

Criminal assault includes assault simpliciter,

battery, and unlawful detention

So under Act 29, assault may be one of three

things:

438
  assault and battery
 assault without actual battery; and
 imprisonment – false imprisonment
 sec 85(1)

Assault is lawful if it is justified on any of the

grounds in Chapter 1 of Part II of the Act
- sec 85(2)

The requisite mental element is intentional

conduct – in the case of assault and battery, it
must be with the intention of causing harm, pain,
or fear, or annoyance to the person assaulted or
exciting him to anger
– sec 86(1)

In the case of assault without actual battery, it

must be intentionally putting the person
assaulted in fear of an instant assault and battery
– sec 87(1)

In the case of imprisonment, it must be with the

intention of detaining the person assaulted in a
particular place
– sec 88(1)

439
Since the actus reus is unpermitted contact,
proof of consent may undermine the actus reus –
the reason is that if the contact is permitted then
more likely than not, nothing wrong has been
done

The prosecution need not specify the specific

assault – i.e. whether assault and battery, assault
without actual battery or imprisonment – the
nature of the assault may be deduced from the
facts of each case

Assault and Battery

To constitute assault and battery it must be

established by the prosecution that without the
consent of the other person, and with the
intention of causing harm, pain, or fear or
annoyance to the other person or exciting him to
anger, the accused forcibly touched that other
person or caused any person, animal, or matter
to touch that other person
 sec 86(1)

440
So the contact may be direct or indirect through
an involuntary agent

On the latter point, the case of DPP v. K (A

Minor) is very instructive. It was in the context
of a chemistry class. One boy went to the
lavatory to wash some acid off his hand. He took
with him, very foolishly, a boiling tube of
concentrated acid. He wanted to test the reaction
of the acid with toilet paper, but then he heard
footsteps outside. In a panic, he poured the acid,
or what remained of it, into the upturned nozzle
of the hand drying machine in the lavatory and
went back to the class. Another boy went to the
lavatory to wash his hands. He turned on the
dryer and the acid was injected into his face,
leaving him permanently scarred
It was held that it was clear that the first boy
knew full well that he had created a dangerous
situation and the inescapable inference was that
he decided to take the risk of someone using the
machine before he could return and render it
harmless or that he gave no thought to that risk.

441
The mens rea requirement is very important –
and as we said previously, in this circumstance,
the mens rea consists of intentional conduct –
the contact must be intentional – the absence of
the element of intention may lead to the acquittal
of the accused on the charge

There appears to be two degrees of intention

here – both of which must be present

The contact must be intentional and this

intentional direct contact or indirect contact
through an involuntary agent must be with the
intention of causing harm, fear, pain or
annoyance or exciting to anger

Therefore, a forcible touch alone, without proof

of intention on the part of the accused to cause
harm, pain or fear or annoyance to the victim or
exciting the victim to anger, cannot support a
charge of assault and battery

In the other words, the accused must touch the

victim hostilely – for example, if A forcibly
kisses B without B’s consent the presumption

442
would be that A intended to annoy B or force
him to anger unless A can rebut the presumption

The requirement of “forcible touching” in

section 86(1) does not mean that the contact
should have been done vigorously or violently

“Forcible touching” is conceptual in the sense

that it looks to the lack of consent – therefore, as
long as the contact is impermissible, it is forcible

The use of any degree of force against the

person will suffice. Thus, the acts of spitting on
a person and kissing without consent amount to
assault and battery

In other words, once the contact is unpermitted,

there is notional forcibility

The element of consent is therefore important

Thus, if the contact was consensual, the accused

may be exculpated from liability

443
So in Comfort, the prosecution's case, in a
nutshell, disclosed that the complainants, Peter
Adjei and Abena Frema had attended a
spiritualist meeting which the first appellant had
conducted at her house to exorcise evil spirits
and that in the course of the meeting the first
appellant, who is acknowledged by the group as
a prophetess and was therefore the chief actress
in the drama, had hit the head of Abena Frema
several times with a stick in her effort to
exorcise Abena Frema of her evil spirit. Peter
Adjei, went and held the stick and the second
appellant hit him on the chest and the first
appellant hit him on the head.
The evidence of the first appellant showed that
she had no knowledge of what happened that
particular night of the alleged assault. It was also
evident from her testimony that when she
conducts her prayer meetings she at times falls
into a trance and she does not realize what she
does or says.
The trial magistrate convicted the appellants on
a charge of assault. On appeal, the High Court
observed that the evidence established that the
complainant voluntarily attended the first

444
appellant's prayer meeting so that the evil spirit
in her would be exorcised. She willingly
submitted herself to stand in the nude before the
crowd. She offered no resistance when, in the
process of casting away the evil spirit, the first
appellant had to hit her with the stick. If she had
any objection to raise, the only sensible thing
she could have done was to have withdrawn
herself away from the meeting.
Therefore, Osei Hwere J., concluded that:

by sec 86(1) of Act 29, a person commits

an assault and battery when, essentially,
there does not exist the other person's
consent. Consent, therefore, generally
negatives any offence of assault. I say
"generally" because I concede that the
victim's consent cannot be a defense for
an assault if the blows inflicted are, in the
opinion of the court likely to cause bodily
harm. "Bodily harm," of course, includes,
any hurt or injury calculated to interfere
with the health or comfort of the victim
and, although it need not be permanent, it

445
 must be more than merely transient and
trifling.

Therefore, the principle appears to be that the

consent of the victim to an assault will inure to
the benefit of the perpetrator if it is transient and
trifling

Thus, the accused will be held liable for assault,

even if the victim consented, if the assault
caused bodily harm
 sec 42(b)
 Donovan

However, it is a sufficient defense to a charge of

assault that the accused and the victim were
engaged in a game or sport that is authorized by
law and is conducted in a way not to pose any
serious danger to life

Thus, if the game or sport is dangerous to life

there can be no defense to any act of assault
involving grievous harm on the grounds of
consent
– Coney

446
This is also inherent in section 42 itself

Therefore, where two persons agree to fight for

any purpose unauthorized by law and one of
them injures the other by sheer use of superior
force or strength, the stronger party may
properly be charged with assaulting the weaker
party and consent to the fight cannot afford a
defense because consent to do what is unlawful
is itself void
- sec 38

It is important to note that the general rule set

out in sec 86(1) is qualified by or subject to the
provisions in sec 86(2)

Therefore, where consent has been obtained by

deceit, an intention to assault will be inferred, to
render the act a criminal assault
 sec 86(2)(a)
 Flattery
 Williams

447
A person who is insensible or unconscious or
lacks the capacity to give consent will be
deemed to be a victim of assault, in the
circumstance
- sec 86(2)(b)

We have said that the prosecution need not

prove that the unpermitted contact was violent

Thus, the slightest touch suffices for an assault

and battery, if the requisite intention is
established
 sec 86(2)(c)

So as the illustration goes, if A pushes B so as to

cause him to fall into water. ‘A’ is guilty of an
assault and battery although the push is so slight
as not of itself to be material

The whole basis of assault and battery is

unpermitted contact or touch – what then
amounts to being touched?

448
A person is touched if her body is touched, or if
any clothes or other thing in contact with her
body or with the clothes upon her body are or is
touched, although her body is not actually
touched
- sec 86(2)(d)

Therefore, the mere fact of causing damage to

the complainant’s skirt or blouse or trousers or
shirt is sufficient to support a charge of assault
and battery

The rationale is that clothes are so intimately

connected with the wearer that offensive
conduct against clothes is likely to be taken as
an affront to the wearer

The basis of the offence is the desire of the law

to preserve the peace

With respect to the question of intent, a person

will be held liable not only for intentionally
causing harm, pain or fear, or annoyance by the
force or manner of the touch itself, but also for
forcibly exposing the victim or causing the

449
victim to be exposed, to harm, pain, fear, or
annoyance from any other cause
 sec 86(2)(e)

Assault without Actual Battery

Assault without actual battery is perhaps the

only crime in which the evil of the act consists
merely in creating fear in the mind of the victim

A person commits an assault without actual

battery on another person, if by an act apparently
done in commencement of an assault and
battery, he intentionally puts the other person in
fear of an instant assault and battery
- sec 87(1)

The essence of the offence is that by his act or

conduct the accused person intentionally puts
the other person in present fear of assault and
battery

The victim must expect that force is about to be

applied to him, and the accused must intend to
create that expectation

450
No blow need be struck

The actor need only do something inducing the

victim to believe that he will instantly receive a
blow or other application of force unless he does
something to avoid it

So in Bruce-Konuah, a quarrel ensued between

the appellant and his neighbors over a hedge
bounding their respective lands. The appellant
was a medical doctor. At a point in the quarrel,
the neighbor’s wife, according to the
prosecution, said to the appellant that certain
nurses had said that he had been misbehaving at
the hospital. This apparently was too much for
the appellant to bear because upon hearing it, he
jumped over to the neighbor’s side of the hedge
and chased the neighbor’s wife.
The neighbor’s wife alleged that the appellant
slapped her. This was denied by the appellant.
The story of the neighbor’s wife appeared to
have been accepted by the trial magistrate
because he convicted the appellant for assault
and battery

451
On appeal, it was held that by Act 29, s. 85,
"assault" covered assault with battery and
assault without battery. On his own showing the
appellant was guilty of assault without battery
and his conduct in rushing at the complainant
with apparent intention to cause her harm and
intending to put her in fear of danger, fell
squarely within the illustration of assault in Act
29, s. 87 (2)(b)

This is the principle that a person can make an

assault without actual battery by moving, or
causing any person, animal or matter to move,
towards another person, although he, or such
person, animal, or matter, is not yet within such
a distance from the other person as that an
assault and battery can be made
 sec 87(2)(b)

As the illustration goes:

A. at a distance of 10 yards from B. runs at B.,

with the aim of apparent intention of striking
him, and intending to put B. in fear of an
immediate beating. Here A. is guilty of an

452
assault, although he never comes within reach of
B.

In a case of assault without actual battery, the

apprehension of an instant assault and battery
must be reasonable although, as we said
previously, the victim need not be in striking
distance

Thus, from all the circumstances, it must be

apparent to the other person that the accused has
the ability or means to carry out the assault and
battery

Therefore, it is not necessary that an actual

assault and battery should be intended, or that
the instruments or means by which the assault
and battery is apparently intended to be made
should be, or should by the person using them be
believed to be, of such a kind or in such a
condition as that an assault and battery could be
made by means of them
 sec 87(2)(a)

453
Hence, as the illustration goes, if A. points a gun
at B. with intent to put B in fear of being shot
instantly, A. is guilty of assault without actual
battery even though to A’s knowledge the gun is
unloaded or that he in fact has no intention to
shoot at B.

Also, an assault without actual battery can be

made on a person although he can avoid actual
assault and battery by retreating, or by
consenting to do, or to abstain from doing, an act
 sec 87(2)(c)

This means that if a person does any act in

commencement of an assault and battery on
another person, the fact that the person utters
words indicating that he can avoid actual battery
does not unmake the assault

Therefore, a conditional threat amounts to

assault – “If you don’t move I’ll break your
neck”

As the illustration goes: A. being near B., lifts a

stick and threatens that he will at once strike B.,

454
unless B. will immediately apologize. Here, A.
has committed assault

Finally, it would appear that mere words alone

cannot suffice as assault without actual battery,
unless the words are accompanied by some
action apparently indicating an intention to
commit an assault and battery

This appears to be effect of the phrase “if by any

act apparently done” in sec 87(1)

Thus an insult, even if it is an insult by conduct,

does not amount to an assault

Nothing short of a threat is sufficient

455
Imprisonment

A person imprisons another person if,

intentionally and without the other person’s
consent, he detains the other person in a
particular place, of whatever extent or character
and whether enclosed or not, or compels him to
move or be carried in any particular direction
- sec 88(1)

This is subject to the circumstances enumerated

in sec 88(2)

It is unnecessary for the prosecution to prove

actual violence

456
Cruel customs or practices in relation to
bereaved spouses

Section 88A is intended to halt cruel customs

like “kunayo”

Thus, any such practice which is cruel in nature

will attract criminal sanctions if it amounts to
assault and battery, assault without actual battery
or imprisonment

457
Criminal Harm to the Person

Causing Harm

Sec 69

Since assault is merely making contact with the

person’s body, it is characterized as a
misdemeanor

However, the offence of causing harm is a

second degree felony – making its penalty
graver than assault – meaning that by section
296(2) and (6) of Act 30, the punishment for
Causing Harm is a term of imprisonment not
exceeding ten years with hard labor

The philosophy is that merely making contact

with a person’s body, without more, is deemed
less serious than proceeding to break his skin

So like any rational legal system, our criminal

law grades attacks upon the person (not resulting
in death) in categories

458
At a low order of gravity are assaults in which
bodily harm does not arise

However, immediately bodily harm arises, then

the act is elevated from assault to causing harm

What constitutes harm?

Section 1 provides that “harm” means a bodily

hurt, disease, or disorder whether permanent or
temporary

So, with respect to causing harm, the skin of the

victim must be broken – but this need not
amount to grievous bodily harm –

It also appears from the definition of harm in sec

1 that inflicting a disease or disorder on the
victim will fix the accused with liability

Thus, it appears that if one, knowing fully

well that he suffers from a highly
contagious disease, say HIV or
Gonorrhea, transmits it to another by
having unprotected sex with that other

459
– then he may be liable for causing
harm?

There is no Ghanaian case law on his

question

The English courts have, however,

battled with this question

The leading case is the decision of the

Court for Crown Cases Reserved in
Clarence

In that case, Clarence, who had

communicated venereal disease to his
wife, was indicted under section 20 of
the English Offences Against the Person
Act. It was held that he was not guilty
because an infliction under the section
could only be by way of an assault.
Stephen J opined that: “The words
appear to me to mean the direct
causing of some grievous injury to the
body itself…I think the words imply an
460
assault and battery of which a wound or
grievous bodily harm is the manifest
immediate and obvious result.” Here
there was no assault, because an
assault presupposes lack of consent,
and the wife had consented.

What you should bear in mind is that the English

Act has two sections on this point – sections 20
and 47

Section 47 on its face requires an assault while

section 20 does not require an assault – however,
in this case their Lordships read section 20 as
requiring an assault

Perhaps their Lordships just disliked the idea of

bringing the marital bed into the criminal law

Whatever it was worth, the legal position taken

by their Lordships in Clarence has been
overruled by the English Court of Appeal in
subsequent case decided in 1983

461
A careful reading of our section 69
appears to suggest that it does not
require anything further than the
infliction of harm

But what about a possible contributory

negligence on the part of the other for
having unprotected sex with the original
sufferer of the disease?

This may not inure to the benefit of the

accused since it is arguable that the
second person’s ignorance or mistake
was as to the consequences of the
unprotected sex, and not the act of
unprotected sex itself

Policy problems may arise where a

person is charged with causing harm as
a result of his intentional transmission of
a disease to another

In England, it is said that the charge

against Clarence was unprecedented
462
since millions of men and women infect
their consorts yearly with venereal
diseases without being prosecuted

The policy in England appears to be

against prosecuting for infectious
disease, because of the risk that
prosecutions may inhibit people from
seeking advice or reporting contacts.
This policy is especially strong in the
case of husband and wife

However, the argument may be made,

that the other person was consenting to
sex and not consenting to the
transmission of the disease – and that
the consent to sex may not have been
forthcoming had the true situation been
known to them

What about the infliction of psychological

harm?

463
The case of Ireland suggests that psychological
harm is sufficient

However, it appears from the definition of harm

in sec 1 that mental distress alone may not be
sufficient unless accompanied by a mental
disorder

On this point section 81(b) is even more

instructive – it provides that:
disease or disorder which a person suffers
as the inward effect of grief, terror, or
any other emotion is not harm caused by
another person, although such grief,
terror, or emotion has been caused by
that other person, whether with intent to
cause harm otherwise

So, under our law, psychological harm will not

do

Generally, harm involves a wound, but by the

tenor of the definition in sec 1, it need not
always be the case

464
Whatever be the case, the harm must have been
caused intentionally and unlawfully

This means that all the prosecution need to

prove is to adduce evidence to bring the act that
caused harm within any of the provisions of
section 11, which deals with intention and also
establish that the act was done without any
justification recognized under our criminal law
- sec 76

So in Brobbey, four policemen went to the

complainant’s store and accused him of selling
pall mall cigarettes above the controlled price.
Even though he denied the alleged offence one
of them held him and asked him to accompany
him to the police station and when he resisted,
the other three joined the first in beating him up,
tearing his knickers and pants and stealing an
amount of money he had on him. When his wife
came to his rescue, she was bitten by the first
policeman.

465
It also appeared that the complainant refused the
invitation to accompany the policemen to the
police station, and he forcibly attempted to
retrieve the pack of cigarettes that had been
picked up. In the process, the complainant
ripped the ID card of the first policeman.
The medical report tendered by the prosecution
showed that both the complainant and his wife
had sustained abrasions in their confrontation
with the police. The trial magistrate found that,
(i) the force used by the police was excessive
and (ii) they tore the complainant’s knickers and
stole his money. He therefore sentenced each of
them to one month's prison term with hard labor.
On appeal, Twumasi J., (as he then was)
observed that an essential element for the
constitution of the crime of causing harm
contrary to section 69 is that the harm or damage
must not only be intentional but also unlawful.
Mere harm or damage without more is
insufficient.
Twumasi J., continued: To say the least, the
learned magistrate's conclusions bordered on the
perverse. Speaking for myself, I am unable to
infer from the evidence that the appellants

466
employed excessive force to overcome what I
consider as unwarranted resistance offered by
the [complainant] and his wife. The wife's
intervention was an obtrusive venture calculated
to interfere with the appellants in the execution
of their lawful duty to arrest the [complainant]

467
Female genital mutilation (FGM)

Read the extract

Female genital mutilation is governed by sec

69A

This provision was amended in 2007 under Act

741

Until the amendment, the offence was referred

to as female circumcision

The purpose of the amendment was to change

references to female circumcision to that of
female genital mutilation to reflect the actual
nature of the offence, and to widen the scope of
responsibility in relation to the offence

The crux of the offence involves excising,

infibulating or mutilating the whole or any part
of the labia minora, labia majora or the clitoris

468
Labia is the plural of labium – which is the Latin
word for lips

In human anatomy, labia refers to the protective

folds covering the vagina – they are termed labia
(plural) because they are in pairs

The labia majora is the outer thick two folds of

skin that surround the clitoris, the opening of the
urethra, and the opening of the vagina – after
puberty, it is usually covered with pubic hair

The labia minora is the inner small folds of skin

that lie immediately inside the labia majora and
join at the front to form the clitoral hood

Under Act 29, to “excise” is to remove the

prepuce, the clitoris and all or part of the labia
minora
 sec 69A(3)

The prepuce is the skin or foreskin which covers

the tip of the clitoris – it is also known as the
clitoral hood

469
The clitoris is a sensitive erectile female sex
organ at the front junction of the labia minora,
lying above the opening of the urethra and the
vagina

To “infibulate” includes excision and the

additional removal of the external genitalia and
stitching or narrowing of the vaginal opening
 sec 69A(3)

To “mutilate” includes any other injury caused

to the female genital organ for cultural or other
non-therapeutic reasons
 sec 69A(3)

The offence of FGM may be committed in one

of three ways
iii. carrying out FGM
iv. participating in FGM
v. being concerned with FGM

In the first situation, a person who carries out

FGM by excising, infibulating or mutilating the
whole or any part of the labia minora, labia
majora or the clitoris of another person is liable

470
to imprisonment of not less than five years and
not more than ten years
– sec 69A(1)

In the second situation, a person who

participates in a ritual or customary activity that
subjects a person to FGM also incurs the same
liability
 sec 69A(2)

In the third situation, a person who is concerned

with a ritual or a customary activity that subjects
a person to FGM also incurs the same liability
 sec 69A(2)

To be “concerned with” such a ritual or a

customary practice is:
 to send to
 take to
 consent to the taking to or receive at
any place
any person for the performance of FGM

Or

471
 to enter into an agreement (oral or
written) to subject any of the parties to
the agreement or any other person to
FGM
 sec 69A(3)

472
Causing Harm With The Use Of An
Offensive Weapon

Using one’s body parts to harm a person is

considered a lesser offence than using an
implement

Therefore, where a person uses an implement to

cause harm, the law views it as the use of an
offensive implement or weapon to cause harm,
thus, the degree of culpability is raised to a first
degree felony
 sec 70

Proof that the weapon used is offensive is

essential because it is the only distinguishing
feature between causing harm simpliciter under
sec 69 and that of causing harm with an
offensive weapon under sec 70

If the weapon is offensive, the fact that the

injury caused by it is slight does not inure to the
benefit of the accused

473
There is no statutory definition of “offensive
weapon”

The offensiveness of the weapon in question

depends on the circumstances of each case

Some weapons are intrinsically offensive – these

include knives, guns, clubs and things of that
character

Some implements are not so intrinsically

offensive – yet they may become offensive
depending on the manner of their employment

Therefore, the culpability of the accused

depends on the nature of the object or the
manner in which it was used

One test for determining whether an object is

offensive is whether it may be used for an
aggressive purpose

In Yaw Pramang it was held that a cutlass is an

offensive weapon inasmuch as it can be used for
an aggressive purpose

474
Causing Harm by Omission

A person may also incur liability if he causes

harm to another by an omission

However, unlike harm caused by acts of

commission under secs 69, 69A, and 70, a
person is only culpable for harm caused by
omission if he is under a duty to act

Thus, a person causes harm by omission if he

fails to perform a duty for preventing harm
 sec 77

The law does not require us to be “Good

Samaritans” if we are not under a duty to act to
prevent harm – this is because a duty to act
arises in prescribed circumstances

By sec 78, a duty to prevent harm to another

person may arise in any of the following
situations:
 if there exists a duty to supply the
other person with the necessaries of
health and life – sec 78(a),

475
 (necessaries of health and life include
proper food, clothing, shelter, warmth,
medical or surgical treatment, and any
other matter which is reasonably
necessary for the preservation of the
health and life of a person sec 79(8))
 by imposition of law, or
 by voluntary assumption, or
 under an agreement or undertaking to
do an act for the purpose of averting
harm to a person, or
 by virtue of a position (office or
employment), or
 by a lawful order of a court, or
 by a lawful order of a person
- sec 78(b)

Sec 79 elaborates on the incidents of the duty to

give access to the necessaries of health and life

A person cannot be held liable for omitting to

supply the necessaries of health and life to
another, unless it is proved that by reason of age
or physical or mental state, or by reason of
control by the accused person, the other person

476
could not have prevented the harm through
reasonable exertion
 sec 81(a)

See section 80 for explanations with respect to

office

477
Negligently Causing Harm

So far we have been discussing situations where

a person causes harm intentionally

Liability may also arise where a person

negligently and unlawfully causes harm

However, causing harm through negligence is a

misdemeanour
 sec 72

All the prosecution need to establish is that

although the accused did not intend to cause
harm, yet he caused the harm by a voluntary act,
done without the skill and care that are
reasonably necessary under the circumstances
and that the accused did so cause the harm
without any justification recognized under our
criminal law
- secs 12 and 76

The degree of negligence here need not amount

to a reckless disregard for human life

478
See sec 73 for negligently causing harm while
operating or engaged in a dangerous thing

Where a person acts in good faith in respect of

the provision of medical or surgical treatment,
and intentionally causes harm to the person
under treatment, which is due to a lack of the
exercise of reasonable skill and care, or the
person knows or ought to have known that his
action was plainly improper, he will be deemed
to have negligently but not intentionally caused
the harm – the effect is to reduce the offence
from a second degree felony to a misdemeanor
 sec 82

So, from the illustration, if for instance, a

surgeon, through gross negligence, amputates a
limb where the necessity to amputate did not
arise, the surgeon is not liable to be convicted of
having intentionally and unlawfully caused
harm, but is liable to be convicted of having
negligently and unlawfully caused harm

479
In all cases of causing harm, the accused is still
liable even if the complainant contributed to the
harm by his negligence, act, omission, or
trespass
 sec 81(d)

480
Threat of Harm

Not only does the law punish for the actual

causing of harm – it also punishes for mere
threats to cause harm

To be culpable for threat of harm, it must be

established that the accused threatened the
complainant with unlawful harm with the
intention to put the victim in fear of an unlawful
harm
 sec 74

Threat of harm is a misdemeanor

481
Threat of Death

The law does not only punish for actually

causing a person’s death – it also punishes for
threatening to kill a person

To be culpable for threat of death, it must be

established that the accused threatened the
complainant with death, with the intention of
putting him in fear of death
 sec 75

In respect of threat of harm and of threat of

death, an expression referring to a threat
includes an offer to abstain from doing, or to
procure any other person to abstain from doing,
anything
 sec 17(2)

So, one text writer explains that if, A. is holding

firmly to a ladder in order to enable B. climb
safely to the roof of a building and the
circumstances are such that the inevitable result
of A’s abstention from holding on to the ladder
would be physical harm to B. if he falls, it

482
amounts to a threat if A., with intent to put B. in
fear of criminal harm, threatens to abstain from
holding to the ladder

It is immaterial if the threat is conveyed by

words, or by writing, or in any other manner
 sec 17(4)

It is immaterial whether the threat is conveyed

directly, or through another person, or in any
other manner
 sec 17(4)

It is also immaterial whether the content of the

threat will be executed by the person doing the
threatening against or in relation to the person
threatened, or by, or against, or in relation to any
other person
 sec 17(3)

483
Exposing Child to Danger

It is an offence to unlawfully expose a child

under twelve years to danger, or unlawfully
abandon him or her
 sec 71(1)(a)

It is also an offence to unlawfully expose a

physically or mentally handicapped child to
danger or to abandon a physically or mentally
handicapped child in a manner that is likely to
cause harm to him/her
 sec 71(1)(b)

It appears that under section 71(1)(b), the child

should be under eighteen years

484
Kidnapping

Kidnapping is a second degree felony

– sec 89

By sec 90, the offence of kidnapping is

committed in any of the following
circumstances:
 unlawfully imprisoning a person and
taking him out of the jurisdiction of
the court without the person’s consent
– jurisdiction means a law district, in
this instance it appears to refer to
taking the person out of the country
 unlawfully imprisoning a person
within the jurisdiction in such a
manner that prevents him from
applying to a court for his release or
from discovering to any other person
the place of the imprisonment, or in a
manner that prevents a person entitled
to have access from discovering the
place where the person is imprisoned

485
There is no specification of the age or gender of
the victim – so a person of any age or gender
may be the victim of kidnapping

It is immaterial whether the accused demanded

the payment of ransom

In D it was held that a father could be liable for

kidnapping his own son if there is a court order
granting sole custody to the mother

Then, in Reid, the appellant was convicted of

kidnapping and maltreating his wife although
they had cohabited for many years

486
Abduction

Previously, the offence of abduction was

intended to protect females under age 18 –
however, the protection has been extended to
also cover males under age 18

Abduction is a misdemeanor and therefore a

lesser offence that kidnapping
 sec 91

The age requirement in abduction is an

important factor to found liability
 Denyo

The actus reus of the offence consists of one of

two things:

1.unlawfully taking the child from the lawful

possession, care or charge of a person

2.detaining the child and preventing him or

her from returning to the lawful possession,
care or charge of a person
 sec 92(1)(a)&(b)

487
The mens rea of the offence consists of one of
three elements, namely:

1.intent to deprive a person entitled to the

possession or control of the child, or
2.intent to cause the child to be carnally
known by any person, or
3.intent to cause the child to be unnaturally
carnally known by any person
 chapeau of sec 92(1)

Apart from the element of intent, there is a

further mens rea requirement of knowledge
(actual or constructive)

So it must also be established that the accused

knew, or had grounds for believing that the child
was in the possession, control, care, or charge of
another person
 sec 92(3)

Possession here is legal possession – so being in

possession, care, control or charge of a child
continues although the child is physically absent

488
from actual possession, care, control or charge,
if the absence is for a special purpose only, and
the absence is not intended by the parent or
guardian to exclude or extinguish possession,
care, control or charge

In most cases of abduction, it is the accused that

takes the initiative – yet it would not inure to the
benefit of the accused where the victim goes to
the accused willingly and the accused keeps or
prevents him/her from leaving

489
Child Stealing

Previously, the offence of child stealing sought

to protect children below the age of twelve – But
now, a person who steals a person under
fourteen years, whether with or without the
child’s consent commits a second degree felony
 sec 93

So it is no defense for the accused to assert that

the victim consented to being stolen

Therefore, for a person charged with child

stealing to be convicted, it must be proved
strictly, that the victim was under fourteen years

Thus, if it is proved that the victim was fourteen

years of age or more, the accused is entitled to
an acquittal on a charge of child stealing

However, if the victim was indeed under

fourteen years, it is no defense for the accused to
assert that he did not know or believe the victim
to be under fourteen years or that he had no
means of knowing his age

490
 - Robins

Indeed, it appears that it does not matter that the

victim deceived the accused as to his/her age –
the accused will still be liable
- see the dictum of Erle, CJ in Timmins

Apart from the age requirement, in order to

convict the accused, it must also be established,
that:
 the accused unlawfully took or
detained the victim with intent to
deprive the victim of the possession or
control to which another person is
entitled - sec 94(1), or
 that the accused unlawfully took or
detained the victim with intent to steal
anything on or about the body of the
victim - sec 94(1) or
 that the accused unlawfully took or
detained the victim with intent to
cause harm to the victim – sec 94(1)

491
It is not necessary for the prosecution to prove
that the person stolen had been taken from the
possession, care or a charge of a person, if it is
established that some person, other than the
accused, was entitled to the control or
possession of the victim
 sec 94(2)

In other words, it is enough for the prosecution

to show that the accused is not the person
entitled to the possession, care, control or charge
of the person stolen

The question that must be answered is this:

"Do the circumstances in which the accused was

found with the child point necessarily to his
guilt, and to no other logical conclusion?"
- Djomoh

In that case, it was stressed that the explanation

which had repeatedly been given by the
appellant – that the child was showing him to a
certain house – should have been pointed out as
being one of the matters that had to be

492
considered in arriving at an answer to this
question. This was not done. Therefore, the
conviction was quashed

Special Provisions with respect to the offences

of Abduction and Child Stealing

On a charge of abduction or child stealing, it is

no defense for the accused to assert that the
victim consented – it suffices if the accused
persuaded, aided, or encouraged the victim to
depart or not to return
 sec 95(1)(a)
 see also Robbins

An intention merely to temporarily deprive a

person of the possession or control of the person
taken or denied, for however short a time is
enough to fix the accused with liability for
abduction or child stealing, as the case may be
 sec 95(1)(b)
 see also Baillie

493
On the other hand, it is a good defence, on a
charge of abduction or child stealing, that the
accused took the child in the belief that he was
entitled by law as a parent or guardian or by
virtue of any legal right, to take or detain the
child for the purposes of which he took or
detained the child
 sec 95(1)(e)

So as the illustration goes, A mother, believing

in good faith that she has a right to the custody
of her child in pursuance of an agreement with
the father, takes it away from the father. The
mother has not committed the criminal offence
of abduction, although the agreement is invalid

However, the accused is not absolved from

liability on the plea that he did not know or
believe, or had the means of knowing that the
age of the victim was under 18 or 14, as the case
may be
 sec 95(2)

Whatever be the case, the accused is not

exempted from liability for abduction or child

494
stealing as long as he took or detained the victim
for an immoral purpose
- sec 95(2)

Then also, a person who is in temporal

possession, care or charge of a child for a special
purpose, say, as a school master, may be liable
for child stealing or abduction, if he does acts in
relation to the child he is not entitled to so do –
such a person cannot give consent to another
person to do a thing to the child, which thing is
inconsistent with the special purpose for which
the child is being kept

495
Related to the offence of abduction is Human
Trafficking

In 2005, Parliament passed the Human

Trafficking Act, 2005 (Act 694) to specifically
address this crime

Act 694 seeks to prevent and reduce human

trafficking within and across national borders,
especially for commercial purposes

The offence attracts a penalty of not less than

five years – sec 2(2)

The offence involves

 actual trafficking, and
 serving as an intermediary
 sec 2(1)
 provision of persons for trafficking
 sec 3
 use of trafficked person
 sec 4

In respect of serving as an intermediary, an

intermediary is a person who participates in or is

496
concerned with the trafficking of a person,
whether known on unknown to the victim’s
family
 sec 2(3)

To be concerned with trafficking means:

 to send to
 to take to
 to consent to the taking to or to
receive a person for the purposes of
trafficking
 to enter into an agreement to subject a
person to trafficking

But what amounts to trafficking?

Human trafficking means the recruitment,

transportation, transfer, harbouring, trading, or
receipt of persons within and across national
borders by any of the following acts
 threats
 force or other forms of coercion
 abduction
 fraud

497
  deception
 abuse of power
 exploitation of vulnerability
 giving or receiving payments and benefits to
achieve consent
 sec 1(1)

Exploitation includes:
 induced prostitution and other forms
of sexual exploitation
 forced labour
 forced services
 slavery, or practices similar to slavery
 servitude
 removal of organs
 sec 1(2)

Indeed, one is under a duty to inform the

authorities if one has information concerning
trafficking – sec 6

Failure to so inform fixes one with liability for a

fine of not less than 250 penalty units or a term
of imprisonment not less than 12 months or both

498
In terms of jurisdiction, a person is liable to be
tried and punished and punished in Ghana for
trafficking if the person does an act which if
done in Ghana would have constituted
trafficking
- sec 8

499
Child Abandonment

The offence of child abandonment is a

misdemeanor
 sec 96

There are two situations under which a person

may be liable for the offence

1.where the person is bound by law, or an

agreement or employment to keep charge of
the infant and he/she abandons the child, or
2.where the person is unlawfully in possession
of the child and he/she abandons it

To abandon is to leave the child to its fate

 Boulden

Abandonment arises where the accused leaves

the child at a hospital, or at the house of another
person, or leaves the child in any other manner

The child should be under five years in the first

scenario, but it is not too clear in the second
scenario

500
It appears that where the accused is bound by
law to keep charge of or to maintain the child,
he/she need not be the one who initially left the
child to its fate – liability arises if after
becoming aware that the child has been left to its
fate, he/she fails or refuses to retrieve the child
from that state

So in White, a mother of a child under two years

placed it the doorstep of the father and left it
there. He was in the house at the time, and she
called out: “Bill, here’s your child; I can’t keep
it. I am gone.”
The father some time afterwards came out,
stepped over the child, and went out away.
About an hour and a half afterwards, the father’s
attention was again called to the child still lying
in the road. His answer was: “It must bide there
for what I know, and then the mother ought to be
taken up for the murder of it.”
When his attention was called to it again, he
said:
“I will not touch it; those that put it there must
come and take it.”

501
Later, the child was found by the police in the
road, cold and stiff.
The father contended that he did not abandon the
child.
The Court of Crown Cases Reserved convicted
him for child abandonment. Bovill, C.J.
expressed himself thus:
Now, the father was entitled to the
custody and possession of the child and he
was bound to maintain and provide for it,
and to protect it, both morally and
legally. The prisoner was aware that the
child was lying at his door, and there was
clear evidence that he knew it was there,
and therefore he had the opportunity of
protecting it…The relationship of a father
as regards his duty to his child is different
from that of any other person…

502
 OFFENCES AGAINST PROPERTY
RIGHTS

Offences against property rights may be

categorized in two main groups –

There are the acquisitive offences – in the sense

of the acquisition of items – these offences
involve dishonesty

Then there are offences involving damage or

destruction of items

503
Offences Involving Dishonesty

Stealing

Stealing is a second degree felony – sec 124(1)

A person who is convicted for stealing on more

than two occasions is disqualified from election
to Parliament or to a District Assembly for a
period not exceeding five years
 sec 124(2)&(3)

By definition, a person steals if he dishonestly

appropriates a thing of which he is not the owner
- sec 125

The actus reus is the appropriation of a thing

and the mens rea is the dishonesty with which
the thing was appropriated

The actus reus (appropriation) connote the

concept of asportation (a lawyer’s word, which
means the taking or moving of an item), while
the mens rea (dishonesty) speak of the concept
of animus furandi (the intention to steal)

504
Both of these elements must be present for a
charge of stealing to succeed

To establish these elements, the prosecution

must prove three requirements, namely:

1.that the accused is not the owner of the thing

allegedly stolen
2.that the accused appropriated the thing
alleged to have been stolen, and
3.that the appropriation was dishonest
- Lucien

i. Lack of ownership – that the accused is not

the owner of the thing allegedly stolen

There is no requirement that the prosecution

should prove who actually owns the thing
allegedly stolen
- sec123(3)

All that is needed is for the prosecution to show

that the accused is not the owner of the thing
allegedly stolen

505
 - Halm

Therefore, a charge of stealing is not founded on

the relationship between the accused and the
actual owner of the thing, but rather on the
relationship between the accused and the thing

So, the fact that the owner is not known does not
make a difference – the accused will still be
culpable if it is shown that he took something
that does not belong to him

ii. Appropriation – that the accused

appropriated the thing alleged to have been
stolen

This is the element of asportation

By section 122(2), an appropriation of a thing

means any
- moving
- taking
- obtaining
- carrying away or
- dealing with a thing

506
Thus, the law does not require the actual
carrying away of an item or the carrying away of
an item up to any distance before a person may
be said to have appropriated the item

In other words, merely removing the item or

dealing with it in a manner intended to deprive
the owner of it, without necessarily carrying it
away to some distance is sufficient to fix the
accused with liability

This is so as long as the taking, moving,

obtaining, carrying away, or dealing with the
thing was with the intention of depriving the
owner of
- the benefit of his ownership, or
- the benefit of his right or interest in
the thing, or
- in its value or proceeds, or
- any part thereof
- sec 122(2)

507
So in Aning, the appellant, the officer
commanding B company, and the second
accused, the operations officer with the Ghana
contingent to the United Nations Peace Keeping
Force in the Lebanon, were arraigned before a
General Court-Martial charged with conspiracy
to steal and stealing 150 roofing sheets
belonging to the Ghana Armed Forces.
The case for the prosecution was that contrary to
the service operational procedure that
requisitions were to be made by the operations
officer through the logistics officer who would
in turn instruct the engineer officer to procure
them from the United Nations Forces
Headquarters at Nakura in the Lebanon, the
second accused made a request direct to the
engineer officer who went with the appellant to
requisition for and took delivery of the roofing
sheets.
The roofing sheets were given into the custody
of the appellant. Although as the officer
commanding B company, he had no duties to
perform in C company's area of operations, yet
on the instruction of the engineer officer but in
disregard of the laid down procedures, he took

508
them to the area of operations of C company
instead of the Ghana Contingent Headquarters
and personally helped his driver to unload the
consignment within sight of a C company
observation post.
Even though he then visited the platoon
commander of C company, he failed to inform
him about the deposit of the sheets in his area
even though he had told his driver that he was
going to do so.
He also did not inform battalion headquarters of
where he had placed the sheets. The next day
the sheets were short by fifteen. The appellant
when subsequently confronted by the
commanding officer of the Ghana contingent
and his second-in-command denied all
knowledge of the roofing sheets.
Following the report of a board of inquiry set up
to go into the matter, the appellant and the
second accused were charged before the court-
martial. They were convicted and sentenced to
be dismissed from the Armed Forces.
On appeal against that decision, the appellant
argued, inter alia, that since the consignment
never left the custody or area of operations of

509
the Ghana contingent, the appellant, could not be
guilty of the offence of stealing.
It was held that even in those jurisdictions where
a “carrying away" was an essential part of the
offence of stealing, it had been held that a bare
removal from the place in which a thief found
the goods though he did not make off with them
was sufficient.
Since the appellant removed the roofing sheets
from the vehicle and deposited them in C
company's area of operations animo furandi, he
was guilty of stealing.

The decision in Aning is based on the principle

in Walsh

In Walsh, the prisoner was tried on an

indictment for stealing a bag. The bag was
placed in the front boot of a coach. The prisoner,
who was sitting on the box, lifted the bag.
A person who stood beside the wheel on the
pavement took hold of the bag, and while the
two were trying to draw it out of the boot with a
common intent to steal it they were interrupted
by the guard, and they dropped the bag.

510
It was held that even though the bag was not
entirely removed from the boot, since the raising
it from the bottom had completely removed each
part of it from the space that specific part
occupied there was complete asportation, and
the conviction was right.

And as the illustration goes – if a person

disguises a horse with the intention of stealing it,
the act of disguise amounts to appropriation

However, it should be noted that if a person

moves, takes, obtains, carries away, or deals
with a thing but without intending to deprive the
owner of the benefit of ownership, or the benefit
of the right, or interest in the thing, etc. there is
no appropriation in law

So in Antwi, while the first appellant was in

general charge of a government office, the office
became understaffed. Therefore, he arranged
that the second appellant and the third accused,
who were employed under him as clerical
assistants, should do the outstanding typing in
their leisure time.

511
In order to pay for this extra work, the first
accused added to the list of employees a
fictitious temporary typist named E. K. Adu and
caused this name to be included in the month's
payment voucher, which was duly passed.
When the money due to "E. K. Adu" arrived, the
second appellant signed for it and the first
appellant paid to the second appellant and the
third accused their entitlement, and returned the
rest to the government chest.
It was held that on the facts, the second
appellant and the third accused did work for the
government, were paid with money belonging to
the government and the government accepted
the benefit of the work they did. There was
therefore no appropriation within the meaning of
Act 29, s. 122 (2) as there was no intent to
deprive anyone of his ownership.

However, it should be noted that in proving

appropriation, there is no requirement to prove
that the accused intended to deprive the actual
owner permanently of his interest in the thing

512
It is enough if the intention is to deprive some
person temporarily, however fleeting the period,
of his benefit or right or interest in the thing
appropriated
- sec 122(3)

It also suffices if the appropriation is merely for

a particular use, if the accused intended so to use
or deal with the thing that it will probably be –

- destroyed, or
- become useless, or
- greatly injured, or
- depreciated, or
- to restore it to the owner only by way
of sale or exchange, or for reward, or
in substitution for some other thing to
which he is otherwise entitled, or if it
is pledged or pawned
– section 122(3)

Thus, temporary use or temporary appropriation

is enough to fix one with liability as long as it is
accompanied with the intention to deprive the

513
owner of his ownership, interest, benefit, value,
proceeds, or part of the thing

For instance, a cashier at a bank who makes use

of the bank’s money with the intention of
replacing it later, may be guilty of stealing

Also, as the illustration goes, let us suppose A. is

a workman and that he is paid according to the
quantity of metal which he obtains from ore. If
A. fraudulently puts into the furnace some metal
belonging to his employer instead of ore, with
the purpose of increasing his wages, A. may be
guilty of stealing the metal, although he does not
mean to deprive his employer of it permanently

Then also, if A. borrows a horse without the

consent of its owner, intending to keep it until it
is worn out before returning it, A. is guilty of
stealing the horse

It is immaterial whether the act by which a thing

is taken, obtained, or dealt with amounts to
trespass or conversion or otherwise, or it is not

514
otherwise unlawful except for the dishonesty
surrounding the appropriation
– sec 122(4)

The non-requirement of trespass or conversion is

very important in this highly computerized age
where an appropriation may be made without
physically handling the thing, as for example
through electronic mail, facsimile and wire
transfers, without any physical trespass or
conversion
(Recall what happened in the Victoria Island
case)

iii. Dishonesty – the appropriation must be

dishonest

By sec 120, dishonest appropriation arises in one

of three ways, namely:

i. where the appropriation is made with an

intent to defraud; or
ii. where the appropriation is made without a
claim of right, and with the knowledge or
belief that the appropriation is without the

515
 consent of some person who is the owner
of the thing; or
iii. where the appropriation, if known by the
actual owner, would be without his
consent

i. appropriation done with intent to defraud

The existence or otherwise of an intent to

defraud depends on the circumstances of each
case

In terms of section 16, an intent to defraud is an

intent to cause, by means of the asportation, any
gain capable of being measured in money, or the
possibility of any such gain, to any person at the
expense or the loss of any other person

The illustration goes that: A., a commercial

traveler, is directed to collect money for his
employer. If he is at liberty to spend or dispose
of the particular moneys which he collects, and
is only bound to account for the balance in his
hands at particular times or when called upon, he
does not commit stealing merely by spending

516
any or all of the moneys collected by him, unless
there is an intent to defraud

That is, the mere fact that the commercial

traveler spends any or all of the money collected
by him does not amount to stealing – other
factors must be proved to show that at the time
he spent any of or all the money, he had the
intent to cause some loss to his employer and
thereby benefit or gain an advantage from such
spending at the expense of the employer

ii. appropriation without claim of right

An appropriation without a claim of right is

dishonest

Sec 15 defines claim of right as “a claim of right

made in good faith”

This obscure and perhaps unhelpful definition

calls for some analysis in criminal jurisprudence

For a discussion on what constitutes a claim of

right, see Mensa-Bonsu, “The Defence of

517
Mistake of Fact and Claim of Right: Matters
Arising from Republic v. Kwadjo II” (1996-99)
20 UGLJ 125

See also Kwadjo II

A person has a claim of right if he is honestly

asserting what he believes to be a lawful claim,
even though his claim may be unfounded in law
or in fact

That is to say, a man who takes possession of

property, which he really believes to be his own,
does not take it dishonestly, however unfounded
his claim may be
- Bernhard

In other words, the defence is founded where the

accused honestly, but mistakenly believes that
he is entitled to the item in question

So, as the illustration goes, A., during a lawsuit

with B., as to the right to certain goods, uses or
sells some of the goods. Here A. is not guilty of

518
stealing, because, although A. believes that B.
would object, yet A. acts under a claim of right

Good faith or bona fides is the essence of the

defence

Therefore, where there is a bona fide claim of

right supported by evidence, a dishonest
intention would not have been established
- Brempong II

However, a claim that is made without good

faith – in other words – a claim that is tainted
with mala fides or ill or bad faith will render the
appropriation dishonest

Thus, if there is sufficient information to correct

one’s wrongly held belief, then if he goes ahead
to assert that right, the logical conclusion would
be that he acted in bad faith after having become
aware of the true state of affairs
- see Arthur

519
A claim of right in good faith is a complete
defence to a charge of stealing, since it negatives
the mens rea
- see Kwadjo II, which approved
Mensa-Bonsu’s observations on the
issue

Therefore, a claim of right in good faith, is a

defence on its own – it does not depend upon
any other defence – neither does the defence
depend on the lawfulness of the belief

Thus, all the accused needs to show is a

demonstrably honest belief in his claim

iii. where the appropriation, if known by the

owner of the thing, would be without his consent

This point is self-explanatory – but as the

illustration goes:

A being the guest of B writes a letter on B’s

paper. Here A has not stolen, because, although
A does not use the paper under a claim of right,

520
yet A believes that B, as a reasonable person,
would not object to A doing so

However, the prosecution is not required to

show that the accused should know the owner of
the thing

It suffices if the accused has reason to know or

has reason to believe that some other person,
whether certain or uncertain, is interested in the
thing or is entitled to it, as owner or by operation
of law
- sec 120(2)

Therefore, a person may be guilty of stealing if

he dishonestly appropriates a thing the
ownership of which is in dispute or unknown, or
a thing which has been found by another person
- illustration to 120(2)

However, a person may not be guilty of stealing

if the ownership of the thing is in doubt

521
Therefore, where the defence alleges consent on
the part of one of the disputed owners, then
proof of ownership becomes material, since
consent to appropriation by the owner negatives
stealing

So in Dramanu, the appellant, a secretary of the

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

522
magistrate found the appellant guilty of stealing
and convicted him.
In allowing appeal, it was held that even though
under section 120 (2) of Act 29, a person might
be guilty of stealing a thing, the ownership of
which was in dispute or unknown, or had been
found by another person, on its true
construction, the section did not mean that a
person might be guilty of stealing when the
ownership was in doubt.
And although section 125 of Act 29 made it
plain that it was not necessary for the
prosecution in proving a stealing charge to
establish ownership of the stolen property,
where the prosecution had specifically stated in
the charge sheet that ownership resided in some
particular person, failure to establish such
ownership could be fatal to the prosecution's
case.
In this case proof of ownership was
fundamental, first in the sense that whereas the
prosecution alleged that the traditional council
was the owner, the accused alleged that the
money belonged to the chief, secondly that
although the trial magistrate decided that it was

523
not proved that ownership was in the council, he
made a restoration order in their favour and
thirdly, it formed the basis of the defence of the
appellant for if the paramount chief was the
owner as alleged, then he could not have been
guilty of stealing.

From the foregoing, it is clear that the absence

or otherwise of the consent of the owner of a
thing, on a charge of stealing, is essential to the
guilt or otherwise of the accused

Therefore, the consent of the owner to the taking

of a thing is a complete defense to a charge of
stealing, since the owner’s consent to the taking
negatives the essential element of dishonest
appropriation

NB: all the factors that negative consent under

secs 14 & 42 apply here

Still on the issue of consent, consent may be

actual or implied

524
Implied consent may be deduced from the
relationship between the parties – for instance,
in law, ordinarily, marriage operates as implied
consent to the taking of property belonging to
the other spouse

In law, a wife has the implied consent of the

husband to take and use his property, just as he
has the implied consent of his wife to the use of
her property

Therefore, the general rule is that if the wife of

the owner of the thing consents to its
appropriation by the accused, the accused will
be exculpated from liability unless the accused
had notice that the wife did not have the
husband’s authority to consent to the
appropriation
- sec 126(1)
- Creamer

The accused will be deemed to have had notice

that the wife did not have the husband’s
authority, if the accused has had a sexual
connection with the owner’s wife, or if the

525
accused is designing to have a sexual connection
with her
- sec 126(2)
- see Flatman

However, the accused will not be guilty of

stealing by reason only of the fact that he
appropriated the thing with the consent of the
owner’s wife
- sec 126(2)(a)
Or –
by reason only of the assistance rendered to him
by the owner’s wife to appropriate a clothing of
the wife, or money or other item which the
owner’s wife is apparently permitted to have at
her disposal or for her own use
- sec 126(2)(b)

It should be noted that a co-owner of a thing can

be guilty of stealing the thing, irrespective of the
fact that the thing is jointly owned by the
accused and another person or persons
- section 121
- Maywhort

526
So what are the things in respect of which
stealing can be committed?

The list of things that can be stolen are

inexhaustible

By sec 123, anything may be stolen –

- whether living or dead

- whether fixed to anything or not
- whether the thing be a mineral or
water, or gas, or electricity, or of any
other nature
- whether the value of the thing does
not amount to one pesewa
- whether the value of the thing is
intrinsic (i.e. is only valuable by and
of itself and not because of its
association with any other thing)
- whether the value of the thing is only
for the purpose of evidence
- whether the thing is of value only for
a particular purpose
- whether the thing is of value only to a
particular person

527
And if the thing is a document, it is of value,
whether it is complete or incomplete; and
whether it is satisfied, exhausted, or cancelled

Therefore, on a charge of stealing, there is no

requirement to establish the value of the thing
- sec 123(3)

Therefore, even if the thing has no intrinsic

value, the accused would still be guilty

So in Sam, the appellant was convicted for

stealing a human skull from a grave. It was held
on appeal that secs 122 (2) and 123 of Act 29
were couched in such wide terms as to make a
human skull capable of being stolen because the
relatives of the deceased were "interested" in the
corpse of which the skull formed part.
Further, since no person could remove a corpse
from a grave without the permission of the
Minister under Act 301, s. 27 (7), it followed
that the local authority was interested because it
was buried in their ground.
And that there was abundant evidence to show
that in Ghana, relatives did not abandon their

528
dead. A corpse or any part of it was therefore
capable of being stolen.

It should be noted that dominion or possession is

critical to the offence of stealing – that is to say,
property which is not subject to the dominion of
any person such as animals in the wild or fish in
a river, lake or sea cannot be the subject-matter
of stealing, unless brought to effective
possession or dominion of another or regulated
by game reserve laws

Therefore, by sec 127, a person is NOT guilty of

stealing if he appropriates a thing which appears
to have been lost by another person, except:
- if at the time of appropriating the
thing, he knows the owner of the thing
or the person by whom it has been
lost, or
- if the character or situation of the
thing, or the marks on it, or any other
circumstances is or such as to indicate
the owner of the thing or the person
by whom it has been lost – so, for
instance A. finds a ring in the

529
 highway. If the ring has an owner’s or
makers’ name or motto engraved upon
it or it is of grave value, A. will be
guilty of stealing it if he appropriates
it without making reasonable enquiry,
or
- if the character or situation of the
thing, or the marks upon it, or any
other circumstances is or are such that
the person who has lost the thing
appears likely to be able to recover it
by reasonable search and enquiry, if it
were not removed or concealed by any
other person
- see Kramo Wala
- and Ali

In Kramo Wala, the accused was found in the

possession of an accordion, the missing property
of another, whose room was allegedly broken
into during the night and some of his property
stolen therefrom.
When the accused was challenged, he said that
he had picked up the accordion from the ground
on his way to the lavatory. He was accordingly

530
taken to the police station and there charged
with stealing the accordion.
In allowing his appeal against conviction, it was
held that if a man found goods that had actually
been lost or were reasonably suspected by him
to have been lost, and appropriated them really
believing when he took them that the owner
could not be found, that was not stealing; but if
he took them with a felonious intent and
reasonably believed that the owner could be
found, he committed the offence of stealing.
In the instant case, there was no evidence on the
record to show that the appellant at the time he
picked up the accordion knew or believed he
could ascertain who the owner was. It was not
sufficient that if he had taken pains the owner
might be found because he was not bound to do
that.

In Ali, sometime in July 1988, the first appellant,

a blind man, sent some school boys he heard
passing by his house to buy him food. One of
the boys gave him something wrapped in paper
and told him that he had dropped it.

531
Later, he gave the paper to the second appellant
who had come to visit him to ascertain what was
in it. When he learnt that the paper contained
earrings, the first appellant authorised the second
appellant to take them to a goldsmith to
ascertain their value.
Accompanied by the third appellant, a cripple,
they were informed that the earrings were made
of gold and would sell at ¢1,200. The third
appellant bought the earrings when the first
appellant offered them for sale.
However, when the third appellant sent the
earrings to the complainant, another goldsmith
who lived in the same house as the first
appellant, for another assessment of the value of
the earrings, the complainant claimed the
earrings were part of a number of missing
trinkets valued at ¢55,000.
He therefore took the third appellant to the
police station and the two others were arrested.
At the trial the first appellant was charged with
stealing, the second appellant with abetment,
and the third appellant with dishonestly
receiving. The appellants were convicted and

532
sentenced to six months' imprisonment with hard
labour.
Dissatisfied, they appealed to the Court of
Appeal against their conviction and sentence.
The court found on the evidence that (a) there
were no marks on the earrings to indicate who
the owner was; (b) the complainant had not
reported the loss of his trinkets; and (c) the first
appellant had kept the earrings for two weeks
before selling them.
It was held that since there was no evidence that
the first appellant, a blind man, who had to rely
on the second appellant to ascertain the nature
and value of the earrings— which had no
identifying marks—knew who their owner was,
and besides, he had waited for two weeks when
no one reported their loss before selling them, a
charge of stealing could not be sustained against
him.

But for section 127, anyone who found and kept

a lost item under any circumstances would have
been guilty of stealing

533
From the foregoing, the defenses to a charge of
stealing may be recapped as follows:
1.consent of the owner
2.claim of right
3.found object

534
Robbery

It is a first degree felony

- sec 149

Robbery is stealing with the use of force, or

causing of harm, or threat of criminal assault or
harm
- Dawson

So, by section 150, a person who steals a thing is

guilty of robbery if, in and for the purpose of
stealing the thing
- he uses any force or causes any harm
to any person, or
- if he uses any threat of criminal
assault or harm to any person,
all with the intent to prevent or overcome the
resistance of the other person to the stealing of
the thing

Thus, on a charge of robbery, the prosecution

must prove all the elements of stealing and also
show:

535
  that the accused used force or caused harm
to some person in the process of stealing, or
 that he threatened some person with assault
or harm in the process of stealing, and
 that the accused did so with the intent of
preventing or overcoming the resistance of
the person to the stealing of the thing

It should be noted that the force or threat need

not be directed solely at the person being robbed
– so it suffices if the force or threat is directed at
some other person if the intention is to prevent
or overcome the resistance of the first person to
the stealing of the thing

In Behome, the appellant had suspected for some

time that his wife had been having an affair with
N. On the day in question, the appellant left
home on the pretext that was travelling.
That same night he led five other persons to the
village to watch the conduct of his wife and after
laying in waiting for some time they saw the
wife enter N.'s room.
The appellant thereupon led the other members
of the watch into N.'s room, caught the couple,

536
tied them up, stripped them naked, assaulted
them and burnt their clothing. A brother of N.
who later on came to the scene was also tied up
and assaulted.
The victims were thereafter frog-marched to the
appellant's cottage and tied to a tree. When
another brother of N. came to the scene, the
appellant demanded that he should pacify him
with ¢40.00 as ayefare otherwise he would kill
N.
The brother therefore went home and brought
the money to the appellant. The appellant then
demanded and received another ten cedis
towards his taxi expenses. After receiving these
sums the appellant refused to hand over N. on
the ground that he (N.) might commit suicide on
account of the punishment he had meted out to
him. The appellant therefore marched his wife
and N., naked and with their hands tied, for a
distance of six miles to the odikro's house.
On a charge of robbery, it was held that under
section 150 of Act 29 a person would only be
guilty of robbery if in stealing a thing he used
any force or caused any harm or used any threat
of criminal assault to another with intent thereby

537
to prevent or overcome the resistance of that
other to the stealing of the thing.
The fear might be either of personal violence to
the person robbed or to a member of his family
in the restrictive sense of a man, his wife and
children. And the thing stolen must be from the
person of the one threatened or in his presence,
if the property was under his immediate and
personal care and protection.
In the instant case since the duress was against
N. but it was N.'s brother who paid the amount
and furthermore there was an interval between
the putting in fear and the taking of the money
whereby it could not be said that there was an
intent to overcome resistance to the stealing by
those threats, a charge of robbery could not be
sustained against the appellant.

The decision in Behome is very perplexing, in

my opinion, because of the following
considerations:
- the decision creates the impression
that the force or harm or threat of
assault or harm must be against the
person robbed or against a member of

538
 his family in the restricted sense of
spouse or child – this is not borne out
by sec 150
- the decision also creates the
impression that if there is a lapse of
time between the threat of assault or
harm, then the accused would be
excused from liability – this is not
borne out by sec 150

The decision in Behome may only be

supportable in the case of a finding that the
appellant had a claim of right to the money – in
this case if he honestly thought he was entitled
to ayefare or impata from the victim’s brother –
if not, then it cannot be said that because the
threat of harm was not to the victim’s brother or
a member of his nuclear family or that time had
lapsed between the threat and the subsequent
payment of the money, then the appellant should
be excused from liability

539
Still on the elements of the offence of robbery,
the mental requirement is crucial – merely using
force or causing harm or resorting to threats is
not robbery

The mental element here involves two aspects:

- first, it must be shown that the
accused intended to steal something
(animus furandi) i.e. dishonestly
appropriate a thing not belonging to
him and without a claim of right, and
- second, that he used force or caused
harm or threatened to cause harm or
assault with intent to prevent or
overcome the resistance of any person
to the stealing of the thing

It is not necessary that physical harm must be

caused

It is enough if a person is threatened with

criminal assault or harm with intent to put him in
fear of such criminal assault or harm

540
 - revisit our discussion on sec 17 for
explanations with respect to the use of
threat

Since the threat of criminal assault or harm must

be directed at a person, the charge of robbery
cannot be sustained if the accused threatens to
damage the property of the victim

However, if the threat to damage property is

coupled with the use of force, harm, threat of
criminal assault or harm to a person, the charge
of robbery may well be founded

541
Extortion

Extortion is a second degree felony and it

involves obtaining property from a person by
resort to threat
- sec 151(1)

Although, “threat” is an essential element in the

offence of extortion, the offence is not akin to
robbery because a threat, when used in the
context of extortion, does not include threat of
assault or harm
- sec 151(2)

When used in the context of extortion, “threat”

may be in the nature of blackmail, libel or
slander
- see sec 17

So, as the illustration goes, if A. obtains money

from B. by threat of violence to B., he is guilty
of robbery and not of extortion

542
The essence of the offence of extortion is not
merely demanding or obtaining property but
doing so with threats

If you make a demand for money from another

person accompanied by threats not amounting to
violence, you may be liable for extortion unless
you can show that you had a reasonable and
probable cause for making the demand – that is
– the demand was justifiable

Thus, a genuine belief in the existence of facts

constituting reasonable and probable cause is a
sufficient defense even though the belief may be
ill-founded
– CSP v. N’jie & Gaye

Related to the offence of extortion is the offence

of extortion by a public officer or juror –
which is created by section 239 and explained in
section 247

A public officer is guilty of extortion if, under

the colour of his office, he demands or obtains
from any person, any money or valuable

543
consideration, which he knows that he is not
lawfully authorized to demand or obtain, or at a
time at which he knows that he is not lawfully
authorized to demand or obtain
- Appiah

The difference between extortion simpliciter and

extortion by a public officer is that while the
essence of the demand in the former is the use of
threats, the essence of the demand in the latter is
“under the color of office”
- Yeboah

544
Fraudulent Breach of Trust

The offence of fraudulent breach is a second

degree felony
– sec 128

The purpose of the creation of the offence is to

discourage trustees from dishonestly exploiting
their position of trust as regards the trust
property and the beneficiaries of the trust
property

Thus, a person is guilty of fraudulent breach of

trust if he dishonestly appropriates a thing the
ownership of which is vested in him as trustee
for or on behalf of another person
- sec 129

The prosecution must prove three essential

ingredients to succeed on a charge of fraudulent
breach of trust, namely:
1.that the ownership of the thing is vested
in him as trustee for or on behalf of
some other person;

545
 2.that the trustee appropriated the thing
while it was so vested in him; and
3.that the appropriation was dishonest

So what amounts to appropriation by a trustee?

For this, we turn to section 122(1)

What, then, amounts to dishonest appropriation

by a trustee?
- revisit our discussion on sec 120

It should be noted that the circumstances under

which the ownership of the thing became vested
in the accused as trustee must be proved

However, a gratuitous trustee cannot be guilty of

the offence of fraudulent breach of trust unless
an instrument of trust in writing has been
executed by the trustee specifying the nature of
the trust and the beneficiary
- sec 130

546
A gratuitous trustee is one, who being the owner
of a thing in his own right and for his own
benefit, undertakes to hold or apply the thing as
trustee for another person

As the illustration goes:

If A., on the marriage of his daughter, verbally
promises to hold certain moneys of his own in
trust for her and her children, A. is not a trustee
within the meaning of section 129 – but if the
moneys were entrusted to A. by his son-in-law
for the wife, A. would be a trustee within the
meaning of section 129

547
Fraud by False Pretences

Defrauding by false pretence is a second degree

felony
– sec 131(1)

Like all offences involving dishonesty, although

fraud by false pretences is a second degree
felony, it attracts a term of imprisonment not
exceeding 25yrs
- sec 296(5) of Act 30

By section 131(2), a person who by means of a

false pretence or by personation obtains or
attempts to obtain the consent of a person to part
with or transfer the ownership of a thing by a
false representation of acting in accordance with
the instructions, orders or a request of the
President or a member of Cabinet also commits
a second degree felony and is liable to term of
imprisonment of not less than 10 yrs and not
more than 25 yrs

548
Fraud by false pretences involves obtaining the
consent of a person to part with or transfer the
ownership of a thing by means of a –
- false pretence, or
- personation
- sec 132

To succeed on a charge of defrauding by false

pretences, the prosecution must prove the
following essential conditions:
1.that the accused made a false pretence or
engaged in impersonation, and that
2.that by means of the false pretence or
personation, the accused obtained the
consent of a person to part with or transfer
the ownership of a thing

Clearly then, it must be proved that the person

who parted with or transferred the ownership of
the thing in question would not have done so but
for the false pretence or impersonation

549
Fraud vitiates everything – and in this context,
fraud vitiates consent to the parting with an item
or the transfer of ownership of an item
– see sec 14(b)

However, it should be noted that the element of

inducement is very important – that is to say, the
victim must have been persuaded to accept the
false pretence of or impersonation by the
accused as true and to have acted upon it to his
detriment

So, if it is shown that the complainant was not

induced by the false pretence of, or
impersonation by the accused, then it cannot be
said that the complainant was defrauded

Also, if it is shown that the complainant had

knowledge of the falsity of the representation by
the accused, but still acted upon it to his
detriment, it cannot be said that the complainant
has been defrauded

550
This is because a person who acts upon a
representation which he knows to be false
cannot be heard to say he is a victim of that
representation

So in Rabbles, the appellant, who was an

independent food contractor received a local
purchase order (LPO) from the University of
Ghana for the supply of 10 bags of white rice.
He altered the figure "10" on the LPO to read
"110" and added two more items, 300 bags flour
and 50 cartons sugar and took it to the
complainants, Edward Nassar & Co. Ltd., who
supplied him with two of the items on the list.
The complainants discovered that the university
had requisitioned for only ten bags of rice. They
nevertheless supplied the appellant with the third
item, and reported the matter to the police.
On appeal against his conviction it was held that
the complainants could not be said to have been
induced by his representation because in cases of
false pretence, to induce must be taken to mean
to persuade a victim to accept a representation
made to him as true and act upon it to his
detriment or to the detriment of another.

551
The victim must be in such a position that of his
own knowledge, he is not capable of knowing
the truth or falsity of the representation.

Thus, a person who acts upon a representation

which he knows to be false cannot be a victim of
that representation.

On another score, it does not matter that had the

complainant used ordinary care and judgment
the false pretence would not have induced him –
the accused is liable as long as the false pretence
influenced the decision of the complainant
- sec 133(2)(d)

What then is the position of the law where

consent is obtained by a false representation as
to the quality or value of a thing?

Here, the consent will be deemed to have been

obtained by a false representation only where the
thing is substantially worthless in comparison to
what it was represented to be, or the thing is
substantially different from what it was
represented to be

552
 - sec 133(2)(c)

We have noted that fraud by false pretence

involves the resort to false pretence or
impersonation in aid of making another person
part with or transfer the ownership of a thing

What then amounts to false pretence and what

amounts to personation?

False pretence is defined separately from

personation, under secs 133 & 134, respectively

Despite the separate definition, personation is a

species of false pretence, while false pretence is
the genus

False pretence is a representation of the

existence of a state of facts made by a person,
made with the knowledge that the representation
is false or without the belief that it is true, and
made with an intent to defraud
- sec 133(1)

553
The representation may be made in writing or
orally, or by personation, or by any other
conduct, or sign, or means – sec 133(2)(a)

From the definition, a false pretence can only

found liability if it relates to the existence of a
state of facts

So the question to ask is: is any existing fact

alleged as an inducement to part with a thing or
an inducement to transfer the ownership of a
thing?

A representation of the existence of a state of

facts includes a representation as to the non-
existence of a thing or condition of things
- sec 133(b)

So from the illustrations, the following are false

pretences
- A. goes into a shop dressed as an
officer in the Army, which he is not. If
he does this in order to gain credit
which he would not otherwise get, he
is guilty of a false pretence, although

554
 he does not actually say that he is an
officer
- A. represents that a picture which he
is selling, once belonged to a
particular collector
- A. represents that a picture which he
is selling was painted by a particular
painter
- A. represents that a picture which he
is selling belongs to him when in fact
it does not
- A. represents that he is entitled to a
legacy under a will of a deceased
relative
- A. represents that he has an account
at a particular bank
- A. represents that he has the authority
of another person to act on that
person’s behalf

It must be emphasized that a representation as to

the existence of a state of facts is distinct from a
representation as to the occurrence of a future
event

555
A representation as to existence of a state of
facts renders the accused liable but a
representation as to the occurrence of a future
event does not render the accused culpable

So, a representation as to the existence of a state

of facts does not include a mere representation
of any intention or state of mind of the accused

Therefore, a mere representation or promise that

anything will happen or will be done, or is likely
to happen or is likely to be done, will not do
- sec 133(2)(b)
- Kuma

Thus, from the illustrations, the following acts

by A. do not amount to defrauding by false
pretences, although they are false:
- that a picture he is selling is a
valuable work of art
- that he expects to receive a legacy
when a relative dies

556
However, a false representation as to future
conduct or the promise of an event in the future
coupled with a false representation as to the
existence of a state of facts could found liability
- CSP v. Cessay

As the definition of false pretence in section

133(1) shows, it is not sufficient to prove that
the accused made a representation of the
existence of a state of facts with the knowledge
of its falsity of without belief in its truth

It must also be shown that the accused had an

intention to defraud

For this purpose, section 16 defines intent to

defraud as an intent to cause any gain capable of
being measured in money, or the possibility of
any such gain, to any person at the expense or to
the loss of any other person by the means of a
false pretence

We come to the issue of what amounts to

personation

557
Personation involves either
- a false representation or false pretence
by a person that he is a different
person – it does not matter whether
the person he purports to be is dead or
alive or is a fictitious person; or
- giving or using one’s name with the
intention that one may be believed to
be a different person of the same or
similar name – sec 134 – the wording
of sec 134(2) suggests that
personation may amount to a crime
standing on its own

Apart from the resort to false pretences and

personation, a person may also be liable for
fraud by false pretence if he carries on Fictitious
Trading under sec135

This is where a person orders or makes a bargain

for the purchase of goods by way of sale or
exchange and after obtaining the goods he
defaults in paying the purchase money or
defaults in supplying the goods

558
Here, such a person is guilty of defrauding by
false pretences in one of two situations:
1. if at the time of placing the order or making
the bargain, he intended to default in paying
for or supplying the goods, that is to say, he
had no intention whatsoever of paying for or
supplying the goods; or
2.if the order was placed, or the bargain was
made with intent to defraud and not in the
course of any trade carried on in good faith
- Ex p. Allotey
- Darkurugu

Distinction between Stealing and False

Pretences

The distinction lies in the existence or otherwise

of the consent of the owner or a person with
authority to part with the ownership of the
subject-matter of the charge

So where the owner of a thing or person having

authority to part with ownership of the thing,
gives his consent to the appropriation of the

559
thing by the accused, the accused is not guilty of
stealing the thing, even if the consent was
obtained by deceit – in such a case, the accused
may be guilty of defrauding by false pretences
- sec 136(1)

So as the illustration goes, A. intending

fraudulently to appropriate a horse belonging to
B., obtains it from B., under the pretence that he
wants it for a day. Here, A. is guilty of stealing

On the other hand, A., intending to defraud B. of

a horse without paying him induces B. to sell
and deliver it to him without present payment, by
a false pretence that he has money in his
account. Here, A. is guilty of obtaining by false
pretences, but is not guilty of stealing

If the accused alleges that he obtained the thing

with the consent of the owner or someone
authorized to give consent, he must establish
that the consent was unconditional for the
immediate and final appropriation of the thing
- sec 136(2)

560
In line with the policy under Act 29 to stem the
tide of fraud, charlatanic advertisements have
been criminalized under sec 137

Thus, the advertisement or the issue of a notice

relating to fortunetelling, palmistry, astrology, or
the use of any subtle craft, means or device, by
which it is sought to deceive or impose on a
person, or which is calculated or is likely to
deceive or impose on a person, is illegal
- sec 137(1)

In such a case, the editor, publisher, proprietor,

or printer of a news media in which the advert or
notice is published is liable to be fined an
amount not exceeding 25 penalty units

561
Falsification of Accounts

Falsification of accounts is a second degree

felony – sec 140(1)

This offence exists to address difficulties that

may arise in the prosecution of persons who
doctor books for stealing

The person has doctored books but he may not

actually or factually have appropriated a thing

So who may be guilty of the offense of

falsification of accounts?

By the chapeau of section 140, the following

persons may be guilty of falsification of
accounts:
 clerks
 servants
 public officers
 officers of partnerships
 officers of companies or corporations

562
So, the offence may be committed by practically
any person who handles the accounts or books
of an entity

The actus reus of the offence of falsification of

accounts consists of any of the following acts:
 concealing a book or account
 injuring a book or account
 altering a book or account
 falsifying a book or account
 omitting to make a full and true entry in an
account – Setrena
 knowingly publishing a false account,
statement or prospectus - Eden
- section 140

The requisite mens rea for this offense may be

one of the following:
- intent to cause a person to be
defrauded – consider this in relation to
section 16
- intent to enable a person to be
defrauded – consider this too in
relation to section 16
- intent to commit to a crime

563
 - intent to facilitate the commission of a
crime either by oneself or by another –

Intent to defraud is very difficult of direct proof

so it may implied from the actions of the
accused

Owing to the mens rea requirement, where it is

proved that the accused innocently falsified
book or account, he would be entitled to an
acquittal on a charge of falsification of accounts

It should be noted that the offence is in relation

to accounting purposes – thus, where the act is
done in respect of purposes relating to
accounting, the accused may be acquitted
- Okanta

564
Dishonest Receiving

This is where a person takes possession or

control of goods obtained by a crime – the
typical case is where a thief sells stolen goods to
another person

The rationale behind this offence appears to be

that dishonest receiving is notionally a fresh
theft by reason of the dishonest appropriation

By section 146 of Act 29, it is an offence for a

person to receive property, which that person
knows to have been obtained or appropriated by
stealing, fraudulent breach of trust, defrauding
by false pretences, robbery, extortion or
unlawful entry

A person who dishonestly receives property

obtained or appropriated by any of these
offences is liable to the same punishment as if
that person had committed that offence

565
For, instance, if A. obtains goods from B. by
false pretences and C., knowing that A. obtained
the goods by this means, dishonestly receives
the same, he will be guilty of dishonestly
receiving the goods and liable to be punished for
defrauding by false pretences

On another score, by section 148(1) of Act 29,

where a person is under a charge of dishonestly
receiving property, is shown to have had in his
possession or under his control, anything which
is reasonably suspected of having been stolen or
unlawfully obtained, and that person does not
give an account, to the satisfaction of Court, as
to the possession or control, the Court may
presume that the thing has been stolen or
unlawfully obtained, and that person may be
convicted of dishonestly receiving in the
absence of evidence to the contrary
- see Santuoh

This is an aspect of what is known in the

common law as the concept of recent possession
– this concept posits that if a person is found to
be in possession of any property which has been

566
recently stolen and he is unable to give
satisfactory explanation as to how he came by
the property, he will be presumed to have
dishonestly received it, unless he gives a
reasonable explanation as to how he came by it

Still on this point, it should be noted that the

possession or control of a carrier, an agent, or a
servant is deemed to be the possession or control
of the person who employed the carrier, agent or
servant
- section 148(2)

This is what is termed, “constructive possession”

To succeed on a charge of dishonest receiving,

the prosecution must satisfy the following
requirements:
1.that the accused received property which he
knew to have been obtained or appropriated
by stealing, or fraudulent breach of trust, or
defrauding by false pretences, or robbery, or
extortion or unlawful entry
2.that the receipt by the accused of the
property was dishonest

567
The actus reus consists of receiving, buying, or
assisting in the disposal of the property
otherwise than with a purpose of restoring it to
the owner
- sec 147(1)

Still on the actus reus, it must be established that

the accused either physically received the goods
or that the goods were in the possession of a
person over whom he had control
- Amissah

Therefore, in the case of a person who buys

property which he knows has been obtained or
appropriated by a crime, it is not necessary to
prove that the buyer has actually collected the
goods – it suffices as long as he has paid for the
goods, though he is yet to collect them

Another aspect of the actus reus is the

knowledge on the part of the accused that the
property was obtained or appropriated by a
crime – merely proving that the accused

568
received property obtained or appropriated by a
crime is not sufficient to establish the actus reus

On this point, knowledge may be inferred from

the circumstances of the case – for instance,
where the accused secrets the property in very
unlikely places
- Boateng

Knowledge may also be inferred, for instance,

where goods are offered for sale at “any price”
or where the goods are offered for sale at a
ridiculously low price - in situations such as
these, knowledge may be imputed to the accused
since the circumstances are such as to put him
on reasonable enquiry – that is the accused
ought to have known that the property was
probably obtained or appropriated by a crime

The mens rea of the offence consists of a

dishonest intent – therefore, it is not enough
merely to show that the accused received or
bought or assisted with the disposal of property
with the knowledge that it was obtained or
appropriated by a crime

569
So for instance, the wife of a thief is not guilty
of dishonest receiving merely because she keeps
at home goodies brought to her husband unless
she knows that the goods were stolen by her
husband

Thus, where a person receives goods which he

knows to have been obtained or appropriated by
a crime with the object of restoring it to the
owner, there is no dishonest intent thus, he
cannot be convicted of the crime

However, where the intention of the accused is

otherwise than to restore the property to the
owner, liability may arise
- section 147(1)

It does not matter that the offence by which the

property was obtained or appropriated, was not
committed within the jurisdiction of the Court
– section 147(2)

570
Forgery

The things in respect of which forgery may be

committed include:
 judicial or official documents
 any document
 hallmarks on gold or silver plate or bullion
 trade-marks
 stamps of any description
 currency notes

The gravity of the offence of forgery depends on

what is forged

Ghanaian law draws a distinction between

official/judicial documents and unofficial and
non-judicial documents – the punishment for
forging an official document is stiffer than that
for forging a non-official document

Thus, it is a second degree felony to forge a

judicial or an official document with intent to
deceive another person
- sec 158

571
An official document is one purporting to be
made, used or issued by a public officer for a
purpose relating to that public office
- sec 163(3)

It is a misdemeanor to forge a non-judicial or

unofficial document with intent to defraud or
injure another person; or with the intent to evade
the requirements of the law; or with the intent to
commit, or to facilitate the commission of, a
criminal offence
- sec 159

To succeed on a charge of forgery under either

sec 158 or sec 159, the prosecution must prove
that the thing alleged to have been forged is a
document

What then is a document?

- see Williams, “What is a Document?”

A document is not necessarily paper in form – it

includes objects that contain information such as
a movie, photograph, audio recording etc.

572
Documents normally refer to writings, including
handwriting, typewriting, printing, photostat,
photograph, mechanical or electronic recording,
and any other means of recording upon a
tangible thing, or form of communication or
representation, including letters, words, pictures,
sounds or symbols, or combinations of those
things
- see 179(1) of the Evidence Act, 1975
(NRCD 323)

It is a misdemeanor to forge or counterfeit a

hall-mark or mark appointed, under the authority
of a law, by a public corporation or public
officer to denote the weight, fineness, age, or
place of manufacture of gold or silver-plate or
bullion with the intention to defraud
- sec 160

It should be noted that the mens rea requirement

of an intent to deceive under sec 158 is distinct
from the mens rea requirement of an intent to
defraud or injure under secs 159 and 160

573
“Intent to defraud” is dealt with under section
16, wherein by means of forgery, a person
intends to cause a gain or the possibility of a
gain to himself at the expense or to the loss of
another person

Thus, “intent defraud” implies obtaining by false

representations some material or financial gain
from someon

While “intent to injure” may simply mean that

some person may act to his detriment or loss
- Okyere

In both instances, the victim of the forgery must

have acted upon the forged document to his
detriment

These are different from intent to deceive

With respect to “intent to deceive”, the law does

not require the person deceived to have been
deprived of anything – obtaining of his mere
consent to be deprived is all that is necessary to
complete the offence

574
Thus, where the accused sets out with an intent
to deceive, but not to defraud or injure, he may
not not be culpable under sec 159

So in Yirenkyi, the appellant, an employee of the

G.N.T.C. attached to the provisions wholesale.
His mother-in-law was a baker who had tried on
many occasions without success to obtain flour
from the G.N.T.C. As a result, her business was
failing.
The appellant found a chit for the supply of ten
bags of flour to the Ghana Police Force, which
had not been cancelled or countersigned by the
district manager. Thinking it was still valid and
had not been utilised, he cut off the heading
“Ghana Police Force” and substituted his wife’s
name.
The chit was then given to his mother-in-law
who paid for and collected ten bags of flour. The
appellant was charged with forgery with intent
to defraud under sec 159. His explanation was
that, “My intention in doing what I did was not
dishonest. I did it out of sheer sympathy. . . I
tried to help. I am pleading with the court for

575
mercy. The G.N.T.C. has not lost a pesewa as a
result of my act.”
After this explanation, the trial magistrate
convicted him “on his own plea” and sentenced
him to eighteen months’ imprisonment with hard
labour. He appealed against both conviction and
sentence.
In allowing the appeal, it was held that there was
a world of difference between an intent to
defraud and an intent to deceive. Two elements
at least were essential to the commission of the
crime under sec 159, namely first deceit or an
intention to deceive or in some cases mere
secrecy or silence, and secondly, an inducement
to commit a breach of duty as a result of the
deceit. The law did not require that the person
deceived should be deprived of anything at all.
The obtention of his mere consent to be deprived
was all that was necessary to complete the
offence. Applying the law to the facts of the
instant case, the question to be answered was
whether the G.N.T.C. was under any duty to
prevent an ordinary law abiding, taxpaying
citizen who earned her living by baking and was
not a member of the police from buying her fair

576
share of flour. The answer was firmly in the
negative.
By his act the appellant did not induce the
storekeeper or the G.N.T.C. to do what it was
their duty to prevent and the intent was therefore
not one to defraud but merely to deceive.
In this case, the intention of the appellant was
merely to deceive and not to defraud

By section 161, it is a misdemeanor to forge or

counterfeit a trademark in relation to goods or
the sale of goods or sell or offer for sale any
goods or thing so marked or have in one’s
possession, custody or control the goods or a
thing so marked, or the materials contrived or
means prepared or contrived for the forging or
counterfeiting a trademark, or for the marking of
goods or a thing with the intention of
fraudulently passing off, or to enable another
person to fraudulently pass off, the goods as
having been lawfully marked with the trade-
mark or as being a character signified by the
trademark
- see sec 163(1) for the definition of
“trade-mark”

577
On another score, counterfeiting is an offence on
its own – thus, by section 168(2) the offence of
counterfeiting consists of making anything,
which is intended to serve as a specimen, or
pattern or trial of a process for counterfeiting a
stamp or mark

It matters not that the accused does not intend

that a person should be defrauded or injured by
the counterfeiting or that a further use should be
made of the specimen or mark

Counterfeiting is defined by section 168(1) as

the making of an imitation of a stamp or mark,
or anything which is intended to pass or which
may pass as that stamp or mark or thing

Then there is the offence of forgery and other

offences in relation to stamps – these carry a
penalty of a fine not exceeding fifty penalty
units
- sec 162

578
By section 165, it is a misdemeanor to possess a
means of forging – that is having in one’s
possession, without lawful excuse, an instrument
or a thing specifically contrived or adapted for
the purposes of forgery
- see Olujomoye

By section 166, it is an offence to possess a

forged, counterfeited or falsified document or
stamp with the requisite mens rea

The accused must know that the document is

forged, or that it is counterfeited, or that it is
false or not genuine
- Okpara v. C.O.P.

The mere possession of a forged document is not

an offence – the intent with which it is possed is
a crucial factor

So in Bawa alias Issahaque, the police in Accra

reported to their Tamale branch a case of
defrauding in Accra involving the accused. He
was arrested at his home in Tamale where
certain documents, namely a GCE O’level

579
certificate together with a testimonial and result
slip from Tamale Secondary School were found
even though he attended Bawku Secondary
School.
He was charged with the offence of possession
of forged documents. The particulars of the
offence in the charge sheet did not state whose
name appeared on the documents nor the
purposes for which the accused had kept them.
He pleaded guilty to the charge and was
convicted and sentenced.
In allowing his appeal, it was held that since the
accused was charged with possessing forged
documents, it was essential for the prosecution
to have stated in the particulars of the charge the
intent with which the accused possessed the
forged documents.
Since the particulars as to intent were of the
essence of the charge and the prosecution failed
to state the particulars of the intent, no offence
was disclosed.
The accused had therefore pleaded guilty to a
non-existent charge and his conviction was
improper, and that mere possession of a forged
document did not constitute an offence

580
See sec 167 for what constitutes possession for
this purpose

By sec 169, it is an offence to utter or deal with

or use a document or stamp with the knowledge
that it is not genuine or that it is forged,
counterfeited or falsified and with the requisite
mens rea

For this purpose, to utter a document or stamp is

to use it or deal with it or put it in circulation –
so for instance, it is uttering to present a forged
check at a bank

When may we say that a person has forged a

document?

By section 164(1), a person forges a document if

he actually makes or alters the document, with
intent to cause it be believed:
- that the document has been made or
altered by a person who did not in fact
make it or alter it – it is immaterial if
the person is dead or alive or is a
fictitious person; or

581
 - that the document has been made or
altered with the authority or consent
of a person who did not in fact give
the authority or consent – it is
immaterial if the person is dead or
alive or a fictitious person; or
- that the document has been so made or
altered at a different time from that at
which it was in fact made or altered

In short, the document must be made to tell a lie

of itself – that is, the document must pretend to
be what it is not
- see our old friend Antwi

Then also, it is forgery to issue or use a

document, which is exhausted or cancelled, with
the intent that it may pass or have the effect as if
it were not exhausted or cancelled
- sec 164(2)
- see Ritson

So, for instance, if A. being the owner of an

automobile insured with Donewell Insurance,
alters the date of expiry of the insurance policy

582
to enable him make a claim in respect of his
automobile, he will be guilty of forgery

It is also forgery if a person makes or alters a

document in his own name if he does so with the
requisite mens rea of the offence of forgery
- sec 164(3)

However, it is not forgery if a person makes or

alters a document in a name which is not his real
or ordinary name unless he does so with the
requisite men rea of the offence of forgery
- sec 164(4)

Thus, if a person lives under an assumed name,

it is not forgery if he executes a document in that
assumed name, unless he does so with the
requisite mens rea of the offence of forgery

Making a document is different from altering it

To alter a document, there must be evidence of

cancellation or erasure or severance or
interlineations, or transposition and the addition
of a material part to the document

583
- sec 164(5)(c)

584
Unlawful Entry

By section 152, the offence of unlawful entry is

a second degree felony

It appears that the offence is committed only in

relation to buildings

The building need not be a dwelling house or a

completed one

It appears that the area enclosed by a wall

around a building is not a building – thus, if the
accused is within that perimeter, he may not be
guilty of unlawful entry but the offence of being
on premises for unlawful purpose

To constitute entry, it must be shown that either

the whole or some part of the body of the
accused or an involuntary agent employed by the
accused entered the building

Therefore, to avoid a charge of unlawful entry,

no part of the body or any part of an employed
involuntary agent should enter the building

585
Thus, where in breaking a window with the
intent of stealing property in a house, the
accused’s finger went within the building, it was
held to be sufficient entry
- Davis

We know that the effect of section 13(1) is that a

person who intentionally causes an involuntary
agent to cause an event is deemed to have
caused the event

And we also know that an involuntary agent

may be an animal or anything

Thus, a person who pushes into a building, a

stick or iron or any instrument adapted to be able
to take from an object from a building without
actually physically entering the building, will
still be guilty of unlawful entry

What makes the entry unlawful?

The answer to this lies in section 153

586
Entry is unlawful if a person enters a building
where he has no lawful right to do so or where a
person enters a building without the consent of a
person who is able to give consent for the
purpose for which the person enters

It may be a defense if the accused entered the

building under a mistake or ignorance of fact in
good faith

Unlawful entry is not a strict liability offence –

prove of the mens rea is essential

Therefore, merely entering a building without

the lawful right to do so or without the consent
of a person who is able to give consent will not
do

It must be established that the accused so

entered the building with the intention of
committing a crime
- sec 152

587
The absence of this factor inures to the benefit of
the accused

See Kanjarga, where it was forcefully held that

to establish the crime of unlawful entry, the
prosecution must, in addition to proving entry,
prove that an intent to commit a crime in the
premises existed at the time of entry and was the
purpose for the making of the entry

Where the accused, without actually entering a

building, is found, without lawful excuse, in
possession of a tool or an implement adapted or
intended for use in unlawfully entering a
building, he will be held to have committed a
misdemeanor
- sec 154

588
Being on Premises for Unlawful Purpose

This offence is a misdemeanor – sec 155

The actus reus of the offence is being found in

or about a market, wharf, jetty, landing place,
vessel, verandah, outhouse, building, premises,
gateway, yard, garden, or an enclosed piece of
land

The mens rea is presence in or about such

premises for an unlawful purpose
- sec 155

See also Amoah, where it was held that the

essence of a charge of being on premises for an
unlawful purpose is the purpose for which the
entry is made; if the purpose is lawful, no
offence is committed. A prosecution thereof
cannot succeed if it fails to prove the purpose

The phrase “in or about” appears to suggest that

the accused need not have actually entered the
premises or building

589
Therefore, it seems that it is sufficient if the
accused is found or seen loitering or wandering
about the premises for an unlawful purpose

Indeed, the phrase “in or about” may lead to

very interesting results

The English case of Adler v. George is a very

good example of how such formulations may
lead to unintended results

In that case, the appellant had been charged

under sec 3 of the Official Secrets Act, 1920,
which provides that:
No person in the vicinity of any prohibited
place shall obstruct, knowingly mislead or
otherwise interfere with or impede, the chief
officer or a superintendent or other officer of
police, or any member of His Majesty’s
forces engaged on guard, sentry, patrol, or
other similar duty in relation to the
prohibited place, and, if any person acts in
contravention of, or fails to comply with,
this provision, he shall be guilty of a
misdemeanour.

590
The evidence established that it had obtained
access to Marham Royal Airforce station, and
while there, obstructed a member of Her
Majesty’s Royal Air Force Station
He was convicted that while being in the vicinity
of a prohibited place, namely Marham Royal Air
Force Station, he obstructed a member of Her
Majesty’s Forces engaged in security duty in
relation to the said prohibited place
The appellant appealed in person and he argued
that if he was on the station he could not be in
the vicinity of the station, and that it is an
offence under the section to obstruct a member
of Her Majesty’s forces only while the accused
is in the vicinity of the station
He referred to the natural meaning of vicinity as
the state of being near in space, and he
contended that it is inapt and does not cover
being in fact on the station
It was held, per Lord Parker CJ:
For my part I am quite satisfied that this is a
case where no violence is done to the
language by reading the words “in the
vicinity of “as meaning “in or in the vicinity
of”. Here is a section in an Act of Parliament

591
designed to prevent interference with,
amongst others, members of Her Majesty’s
forces who are engaged on guard, sentry,
patrol or other similar duty in relation to a
prohibited place such as this station. It
would be extraordinary, and I venture to
think that it would be absurd, if an indictable
offence was thereby created when the
obstruction took place outside the precincts
of the station, albeit in the vicinity, and no
offence at all was created if the obstruction
occurred on the station itself

592
Trespass

This offence is in relation to land

Trespass to land under Act 29 are of two types –

the first type is entering upon land unlawfully
and the second type is entering upon land
lawfully but subsequently engaging in conduct
which renders the continued stay of the person
on the land unlawful – sec 157

The first type of trespass include:

- unlawfully entering a piece of land in
an insulting, annoying or threatening
manner
- unlawfully entering a piece of land
after having been forbidden to do so
- unlawfully entering and remaining on
a piece of land after having been
required to depart from that land

The second type of trespass include:

- lawfully entering on a land but
subsequently acting in an insulting,
annoying or threatening manner

593
 - lawfully entering a piece of land and
remaining on same after having been
lawfully required to depart from the
land

In all these cases, it must be shown that the

accused is not the owner or occupier of the land
– therefore, the offence may not lie if the
accused is a lawful tenant or lessee or attorney
or agent of an owner or occupier
- see sec156 for the definition of owner
or occupier

594
Offences Involving Damage to Property

Unlawful Damage

This is what is usually referred to as arson, and it

is committed in relation to movable or
immovable property

Causing damage to property the value of which

damage does not exceed GHC100 or without a
pecuniary value is a misdemeanor
- sec 172(1)(a)

Causing damage to property the value of which

damage exceeds GHC100 is a second degree
felony
- sec 172(1)(b)

Note that the law is concerned with the value of

the damage and not the value of the property
damaged – that is – the amount needed to put the
property to its former use, and unless the
damage to the property is proved to be
irreparable the value of the damage cannot be
said to be the value of the property in question

595
 - see Asante

Causing damage to property in a manner which

causes or is likely to cause danger to life is a
first degree felony
- sec 172(2)

What amounts to damage?

By sec 173, damage includes any of the

following factors

- damage to the matter of the thing

- interruption in the use of the thing
- interference with the thing by which it
becomes permanently or temporarily
useless
- interference with the thing by which
some expense is necessitated to render
the fit for the purpose to which it is
used or maintained

For liability to arise, the damage should have

been caused unlawfully – that is, without any
legal justification

596
However, despite the general position of the law
on mistake of law, a person who causes damage,
believing in good faith that he is entitled so to
do, is not liable for punishment
- sec 174(5)

Damage is also unlawful if the person causing it

is liable to a civil action or proceeding, or to a
fine or other punishment under an enactment,
- in respect of act causing the event
- in respect of the consequences of the
act or event
- in which the accused would be liable
if he caused the event directly by a
personal act
- in which the accused is liable to be
restrained by injunction or any other
proceeding from doing the act causing
the event
 sec 174(1)

It does not matter whether the accused is not in

possession of the thing damaged

597
A joint owner or a trustee of a thing may be
liable for damaging the thing
- sec 174(3)

Then also the owner of a thing may be liable for

damaging the thing if he damaged the thing with
intent to injure, cause harm or to defraud another
- sec 174(4)

So as the illustration goes:

A person who intentionally sets fire to his own
house may be liable for unlawful damage if the
fire is likely to spread to and does spread to
other houses or if the property of any other
person is likely to be destroyed and is destroyed

On another score, a person who is charged with

having attempted to cause damage to an amount,
would be not acquitted solely on the ground that
what was actually damaged was a lesser amount
- sec 175(2)

598
The important consideration with respect to the
offence of unlawful damage is that the accused
should have caused the damage intentionally –
thus, unintentional (accidental) or damage
caused through negligence will not suffice

599
Narcotic Offences

Offences in relation to narcotic drugs are

regulated by the Narcotic Drugs (Control,
Enforcement and Sanctions) Act, 1990 (PNDCL
236)

There was and there is still concern that in view

of the magnitude and rising trend in the illicit
production of, and demand for and traffic in
narcotic drugs and psychotropic substances, and
with their attendant threat to the health, welfare
and economy, it had become necessary to revise
the then existing laws on narcotic drugs

In addition, Ghana is a signatory to the United

Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances,
1988, and is obliged to enact laws to implement
the provisions of the Convention

PNDCL 236 seeks to honour Ghana’s

obligations under the Convention

600
PNDCL 236 prohibits dealings in narcotics
under various headings

About 97 substances – narcotic drugs – are

prohibited under PNDCL 236
- see sec 9 and the Schedule to the Act

The popular ones include: cannabis also known

as Indian hemp also known as marijuana also
known as ganja also known as wee also known
as weed also known as pot also known as
“abonsam tawa”; cocaine; heroin; morphine;
opium and codeine

In practice, narcotic drugs are not inherently evil

or undesirable – it is the use to which they are
put that make them so

Narcotics may be put to clinical use for the

treatment of pain, cough suppression and acute
diarrhea – the law does not prohibit such dealing
or usage of narcotics, as long as they are so used
under authority

601
Narcotics may also be used for recreational
purposes – and this is the ultimate concern of the
law – this is because when used for recreational
purposes, narcotics produce a false general sense
of well-being, known as euphoria and result in
developing a state of dependency by the user on
the substance which creates the need to
administer progressively larger doses to achieve
the desired effect

The first offence under PNDCL 236 that we will

discuss is the prohibition on the importation and
exportation of narcotic drugs

Under sec 1 of PNDCL 236, it is an offence to

import or export a narcotic drug without a
license issued by the Minister of Health for that
purpose

The penalty for the importation and exportation

of narcotic drugs is a term of imprisonment of
not less than 10 years

Sec 3 of PNDCL 236 prohibits the carrying on

of business in relation to narcotics and the

602
penalty for doing so is a term of imprisonment
of not less than 10 years

Thus, it is an offence to manufacture, produce or

distribute narcotic drugs without lawful
authority
– sec 3(1)

Then again, it is an offence to undertake an

activity for the purpose of establishing or
promoting an enterprise relating to narcotic
drugs, without lawful authority
– sec 3(2)

Under section 3(3), it is an offence to have in

one’s possession or under one’s control, a
machine, equipment, a tool, utensil or any other
material or article for the manufacture,
production, distribution, administration or use of
a narcotic drug, without lawful authority

Under sec 4 of PNDCL 236, the cultivation of

plants for narcotic purposes is prohibited

603
Thus, it is an offence to cultivate a plant which
can be used or consumed as a narcotic drug or
from which a narcotic drug can be extracted

The penalty for this offence is a term of

imprisonment of not less than 10 years

The prosecution must establish not merely that

the accused cultivated plants for narcotic
purposes, but also that the accused had
knowledge that the plant he cultivated can be
used or consumed as a narcotic drug or that a
narcotic drug can be extracted from it

On this point, ignorance or mistake of fact as to

the nature and quality of the plant in question is
good defense

The locus classicus is Nyameneba

In that case, the appellants were members of a

certain religious sect. For four years or more
prior to their arrest they had been growing
certain herbs and been using them for all sorts of
things, they had been burning a herb as incense

604
for invocation at their worship, making soup out
of it, boiling and using it themselves or
administering it to other people as medicine for
all kinds of ailment with success.
They alleged that the father of one of them, upon
spiritual inspiration, discovered these herbs and
the sect had ever since used them publicly to the
good of all the members and their associates.
They called the herbs, "The herbs of life."
A chemical analysis carried on the herbs proved
them to be Indian hemp. However, the
appellants insisted that the herbs were “Herbs of
Life” and could not be Indian hemp, whatever it
was.
It was held that to succeed on the charge, it was
essential for the prosecution to prove knowledge
on the part of the appellants that the herbs were
Indian hemp. The court was of the view that the
prosecution failed to prove this factor, since it
appeared that the appellants were ignorant of the
nature and quality of the herbs. There were
therefore entitled to a defense of mistake of fact

Sec 5 of PNDCL 236 prohibits the use of

narcotic drugs

605
Thus, it is an offence to smoke, sniff, consume,
inject into one’s body or administer a narcotic
drug on one’s body, without lawful authority or
excuse

It is also an offence to inject another person with

or administer narcotic drugs on another person
without lawful authority

The punishment for using narcotic drugs is a

term of imprisonment of not less than 5 years

Sec 6 of PNDCL 236 prohibits the supply or

purchase of narcotic drugs

Thus, it is an offence to supply narcotic drugs to

another person, without lawful authority – this is
known as drug peddling

It is also an offence to buy narcotic drugs

without lawful authority

606
The penalty for supplying or purchasing narcotic
drugs is a term of imprisonment of not less than
5 years

It should be noted that PNDCL 236 does not

only prohibit dealing in narcotic drugs, it also
prohibits the possession of narcotic drugs

By sec 2, it is an offence to have in one’s

possession or to have under one’s control, a
narcotic drug without lawful authority

The punishment for this is a term of

imprisonment of not less than 10 years

It is very interesting that the minimum

punishment for supplying and buying narcotic
drugs is 5 years less than the possession of
narcotic drugs – the law appears to be saying
that the possession of narcotic drugs is a graver
offence than supplying or buying same – there is
this inherent suggestion that that if you have the
narcotic drug in your possession, it is a greater
evil because the tendency to abuse it is increased

607
It is important to note that possession in law is
different from the ordinary notions of possession

Ordinarily, you may possess a thing without

knowing or comprehending its nature

However, in law, you do not possess the thing

unless you know the nature and quality of the
thing

So, in law, possession connotes not only

physical possession but knowledge of the thing
possessed

Therefore, to succeed on a charge of possession

of a narcotic drug, the prosecution must prove
legal possession – that is – in addition to proving
physical possession, the prosecution must go
further to lead evidence to establish that the
accused had the requisite knowledge

In other words, there must be an awareness of

the nature and quality of what is possessed,
namely, a narcotic drug, since physical

608
possession, without that requisite knowledge
amounts to no offence
- see Amartey
- see also the celebrated case of Bonsu
alias Benjillo

Still on the point of possession, knowledge of

the nature and quality of the thing possessed,
being a question of the state of mind, resort is
often had to the surrounding circumstances and
the explanations given by the accused for the
possession of the thing in question

In relation, to this, there is what is termed

“implied knowledge” – one aspect of
constructive knowledge is where the evidence
establishes that the accused ought to have known
that the thing he possessed was a narcotic drug

Then there is what is termed “constructive

knowledge” – a person will be held to be in
constructive possession if he has control over a
person who is in actual physical possession or
control of the thing

609
Therefore, there is no requirement that the
prosecution should prove manual possession or
touch of the thing by the accused

It is sufficient if the prosecution proves that the

thing is in the possession of a person over whom
the accused has control so that the thing will be
forthcoming at his request
- Munkaila

It should be noted that sec 7 of PNDCL 236

makes provision for special mitigating factors
whereby a lesser punishment may be imposed on
the accused having regard to the unaggravated
nature of the offence and any special
circumstances relating to the offence or offender

However, a recidivist narcotic offender is liable

to life imprisonment
– sec 8

Under sec 10, it is an offence to use property to

promote or facilitate narcotic offences

610
Indeed, possessing property or the proceeds of
property knowing that the property or the
proceeds was or were obtained or derived from
dealings in narcotics in Ghana or elsewhere, is
also an offence
- sec 11

Then again, laundering proceeds from a narcotic

drug offence is prohibited
- sec 12

Indeed, property which has been used for the

commission of a narcotic offence is liable to be
confiscated to the state
- sec 13

And property acquired with the proceeds from

an illegal dealing in narcotic drugs may also be
confiscated to the state
– secs 15-22

611
Special Offences

The special offences under Act 29 were inserted

through the enactment of Act 458 – and they
dealt with under sections 179A to 179D

The special offences include:

 causing loss, damage or injury to property –
section 179A
 importation of explosives – section 179B;
and
 using public office for profit – section 179C

The penalty for any of these offences is two

thousand five hundred penalty units or a term of
imprisonment not exceeding ten years or both

The offence of importing explosives under

section 179A is quite straightforward – the
offence is committed as long as such importation
is without lawful authority

612
The offence of using public office under section
179C looks to two situations:
1.where a public officer corruptly or
dishonestly abuses his office for private
profit or benefit; and
2.where a private person collaborates with a
public officer for the public officer to
corruptly or dishonestly abuse his office for
private profit or benefit

It is instructive to note that it is section 179A,

especially section 179A(3)(a) that has engaged
the attention of legal scholars and the courts

The offence therein is causing financial loss to

the state through a willful, malicious or
fraudulent act or omission

Some text writers are of the opinion that this

offence is overly broad and hence sins against
the legal concepts of over breadth and vagueness

These concepts posit that a statute is vague and

overbroad where it either forbids or requires the
doing of an act in terms so vague that men of

613
common intelligence must necessarily guess at
its meaning and differ as to its application

The argument has been that the terms of the

offence render it so vague and over broad that its
province cannot reasonably be ascertained

In the Mallam Isa case – that is – Ali Yusuf Isa

(No. 2) v. The Republic [2003-2004] SCGLR
174, the Supreme Court upheld the
constitutionality of section 179A(3)(a)

So for now, the issue has been laid to rest

Under section 179A(3)(a), the actus reus is an

act or omission that causes a financial loss to the
state

There must be a direct causal link between the

action of the accused and the financial loss
incurred by the state

It is not enough to for the prosecution to show

that the accused that the accused’s action or
omission could have caused or could have

614
contributed to cause the loss – it must be prove
that it did cause or contribute to cause the
financial loss
- see the Quality Grain case – that is The
Republic v. Ibrahim Adam & Ors

On this point, you should note that a loss to a

public corporation is deemed to be a loss to the
state
- see Tsatsu Tsikata v. The Republic

“Loss” has been interpreted as damage,

deprivation, detriment, injury or privation
- Ibrahim Adam

Then again, it does not matter whether the state

can recover the loss
- Ibrahim Adam

The mens rea requirement is satisfied by one of

three elements – that is, the act or omission must
have been:
 willful, or

615
  malicious, or
 fraudulent

Clearly, no crime is committed even if financial

loss is occasioned to the state as long as the act
or omission resulting in the loss is not willful, or
malicious, or fraudulent

“Fraudulent and malicious” do not and have not

posed problems of interpretation

The problematic mens rea requirement is

“willful”

The province of the mens rea requirement has

been determined by the Supreme Court – and it
is a very wide province indeed

In other words, the Supreme Court has given a

very wide interpretation to what constitutes a
“willful act or omission” in the case of Tsatsu
Tsikata v. The Republic

In that case, the Supreme Court held, per Prof.

Modibo Ocran JSC, that “willfully”, within the

616
meaning of section 179A(3)(a), covers both
intentional reckless acts that in fact end up in
financial loss to the state, as well acts with such
consequences done with a bad or evil motive

This implies that there not be any evil or bad

intent on the part of the accused

Indeed, Justice Modibo Ocran opined that the

act of accused could still be willful as long as
the act itself was done intentionally or
deliberately, even if the accused did not foresee
or intend or desire the financial loss to the state

The learned judge remarked:

…we conclude that even when used in a
criminal statute, the word ‘willful’ could, as
a matter of law, cover cases in which a
public officer voluntarily engages in a
course of conduct which in fact injures the
state financially, whether with an evil or
malicious intent to injure to injure the state,
or simply actuated by a reckless and
persistent disregard for laid down corporate
and statutory rules, or as a result of sheer

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 obstinacy, or as part of a bureaucratic
culture of financial unaccountability. But it
is also true that ‘willful’ may be used to
describe an act which is done not only
deliberately or intentionally, but in
circumstances where the doer must also
have intended or at least foreseen the
probable consequences of their non-action.
We are of the view that the first
interpretation of “willful” puts more teeth
into the effort to reduce corporate
lawlessness and lessen the potential
incidents of financial loss to the state

Thus, the essential elements of causing financial

loss under section 179(3)(a) are:
1. a financial loss
2. to the state
3. caused through the action or omission of the
accused; and
4.that the accused
- intended or desired to cause the loss; or
- foresaw the loss as virtually certain and
took an unjustifiable risk of it; or

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 - foresaw the loss as the probable
consequence of his act and took an
unreasonable risk of it; or
- if he had used reasonable caution and
observation it would have appeared to
him that his act would probably cause or
contribute to cause the loss

- see the Ibrahim Adam

It was also held in this case that a civil servant

acting in the normal course of his duties is
bound to implement government policies
without question and therefore performance of
such duties would not make such civil servant a
party to any loss that was occasioned by the
policy

This is one situation where superior orders is a

good defence

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