criminal-law-notes-the-summaries-of-the-ghanaian-law (1).pdf

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Criminal law notes - the summaries of the Ghanaian law
Constitutional law of Ghana and its history (University of Ghana)
StuDocu is not sponsored or endorsed by any college or university
Criminal law notes - the summaries of the Ghanaian law
Constitutional law of Ghana and its history (University of Ghana)
Downloaded by Nedved Richard (nedvedrich77@gmail.com)
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CRIMINAL LAW
Last week we started discussing the requirements of criminal liability
We made the point that a crime is made up of two elements, namely
 a prohibited act or omission, i.e. the physical element – captured in the
Latin phrase actus reus, and
 a prohibited mental state with which the particular act or omission is done,
captured in the Latin phrase, mens rea – the mens must be rea before
criminal liability can be established
We noted that as a general rule, the two elements must coincide in respect of the
same event for the act to amount to a crime
This dual requirement of criminal liability is captured in the Latin maxim Actus non
facit reum nisi mens sit rea – that is, an act does not make a man a criminal
unless the mind be guilty
We also noted that the sometimes, the law dispenses with the requirement mental
element, making such an act a strict liability offence
We stressed that the actus reus may be an act, or an act together with the
surrounding circumstances, or an omission to act when required to do so
The point was also made that the mental element differs from offense to offense – in
some situations it is intentional conduct that is proscribed, in other cases, it is
knowledge of the unlawfulness of the conduct
We broke off at the point where we were discussing intention under section 11 as a
form of mens rea
Here, the concept of direct intent under section 11(1) was explained in the light of
the rebuttable presumption that a man intends the natural and probable
consequences of his actions
Then the concept of oblique intent under section 11(2) was also explained – this
where a person engages in conduct for a particular purpose and the means chosen
causes other effects as well – here, the accused is not excused from liability if his act
achieves an undesired consequence, as long as the undesired consequence was
foreseeable at the time the act was committed
So as the illustration under section 11(2) goes, 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
Now lets proceed to discuss other forms of intent under section 11
Sometimes a person engages in criminal conduct against a crowd or an assembly of
people without really intending to harm a particular person, and a member of the
group is harmed thereby
Here, the intention is indeterminate in respect of who would be victimized or the
eventual victim
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This form of intent is known as general or indeterminate intent
Here, the accused will still be liable even though the eventual victim was not within
his direct contemplation
Section 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, unless he can show that he had ground
for believing that harm would not be caused – here, A is punishable as if he had
purposed to cause the harm to the person to whom it was in fact caused
A case in point is R v. Gyamfi. In that case, the Appellant was the Organizing
Secretary of the United Party (UP) at Badu in Brong Ahafo. At a political rally, the
Appellant 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 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.
The jujuman 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.
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
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In this case the appellants were exculpated from liability – and it would appear as
though the appellate court was bit soft on especially the jujuman who had the gun
But clearly, had the prosecution established that the accused knew or ought to have
anticipated the result which followed the discharge of the gun, the jujuman would
not have been heard to say that he did not have the victim in his contemplation
when he fired the gun
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, the law will hold A
liable for the death of C
Here, the law says that the accused will still be liable for the harm resulting to the
second person was the result of a transferred intent
It would realized that in such a case, 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 the there is no convergence between the actus
reus and the mens rea, and the 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 match the
actus reus
This form of intent is known as transferred intent
The underlying philosophy is that a man 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 section 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 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:
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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 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 clearly unimpressed and stated 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.” 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 defense 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
person in respect of whom, or the thing in respect of which, the
accused person intended it to take effect
Proof of Intent
Now, how does one prove 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
The presumption is to the effect that a person intends the natural and probable
consequences of his actions
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So the general rule is that, 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 achieved result
For instance, if a man sleeps with a woman without protection during an unsafe
period, he may not heard to say that he did not intend to impregnate the woman –
why? Because the natural or probable consequence of sleeping with a woman
without protection during an unsafe period is pregnancy
It should be noted that the presumption that a man intends the natural and probable
consequences of his actions is not a conclusive presumption – it is rebuttable if the
accused is able to lead evidence to the contrary
So that in our example, if the man is able to show that he used protection in the
form of a condom, he may able to escape liability although the condom broke
Thus, if a man loads a revolver, points it at another, aims carefully at the victim’s
heart and pulls the trigger, the only possible explanation is that he intended to kill
the victim
Therefore, 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
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
So in Serechi v. The State, 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 a few of the
non-employees off the train. Unfortunately, they pushed the deceased off when 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.
On appeal, the Supreme Court held that was sufficient evidence of an intention to
cause death and the infliction of the unlawful harm.
You cannot lightly fault the Supreme Court on this – for what do you expect when
you push off a man from a fast moving train
Now, what is the test or standard for upholding the presumption that a man intends
the natural and probable consequences of his actions?
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Under English law an attempt was made in the much criticized case of DPP v. Smith
to set an objective test by the adoption of the standard of the reasonable man, that
is the standard of an ordinarily cautious or observant person
In DPP v. Smith, the respondent was driving 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, but 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:
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
The Supreme Court of Ghana, in the case of Akorful, disapproved the test of the
standard of the reasonable man set by the House of Lords in DPP v. Smith
In Akorful, the appellant heard someone trying to force open his window at about 1
am. He got up, took up 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
The Supreme Court rejected the test of the reasonable man in the following words:
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.
Indeed, it would appear that by the formulation of section 11(3), the test applicable
in Ghana is at once both objective and subjective
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The statement of the presumption in the first part of section 11(3) appears to be
based on an objective test – (refer)
On the other hand, the second part of section 11(3) which deals with setting aside
the presumption appears to be based on a subjective test – (refer)
Motive
Now let’s contrast intention with motive
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 man shoots and kills his uncle 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, 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 that person’s
action
On another score, motive is not defence for engaging in a criminal conduct, however
innocent it is – in other words, one who breaks the law with a good motive or in aid
of a religious belief still breaks the law
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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, it is 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 linked to the actus reus – i.e. we must establish a causal
connection between the accused and the act that constitutes the actus reus
In the absence of this link, a person cannot be held liable for the particular offence
The concept of causation attempts to ascertain when we may conclude that a person
is responsible for a blameworthy act or 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 – that is, the desired
secondary change
The desired secondary change is the effect and the cause of the secondary change is
our action in bringing about the change – so we cause 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 other words, the result of our action is the end and our action is the means to that
end
Causation, therefore, is the result of a person’s action or inaction
In establishing a causal link between the accused and the actus reus, our concern is
not to indulge in logical sequencing – that is, since this event followed the other then
that other must have caused the event
This is captured in the Latin phrase, post hoc ergo propter hoc – meaning “after
this, therefore because of this”
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
Do you appreciate the inherent fallacy in this assertion?
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In law, we adopt common sense principles of causation – we do not engage in strict
physical scientific analysis of causation – 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 factual or de facto scientific
cause – were it to be so, no one will ever be held to have caused an event
Our concern, therefore, is legal cause – that is – a finding of the person that set a
chain of events in motion
In law, to cause, is to bring about an event or state of affairs by one’s own act or
endeavor
Causation is treated under 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 have been caused by that 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 R v. 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 the murder. It was
held that there was no evidence connecting the accused with the death of the
deceased
The lesson here is that mere suspicion will not do
The situation we have just described relates where only one person act is in question
or where only one person is alleged to have acted
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; but a matter of
exemption, justification, extenuation, or aggravation which exists in
the case of any one of those persons shall have effect in favour of
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that one person, whether it exists or not in the case of any of the
other persons
So as the illustration in the Act goes…
See also the case of R v. Waters
It is clear from the second part of section 13(3) that the accused’s 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
The rule from the second part of section 13(3) is that a trivial or de minimis
contribution operates to exculpate the accused from liability
A case in point is R v. Cato – in that case it was explained that a trivial or minute
contribution to causing an event will not suffice for the purpose of establishing
criminal liability
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 – that is 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?
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 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
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…
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Under what specific circumstances may we conclude that an intervening event has
broken the chain of causation to exculpate the accused from liability?
The first circumstance is as follows:
Does the resort to the use of persons under a disability break the chain of causation?
In other words, does the use of Involuntary Agents 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)
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…
A case in point is R v. Michael – in that case, the accused bought a bottle of
laudanum and handed it to a woman named Stevens with instructions to administer
it to the accused’s child. Stevens left the bottle on the mantelshelf and another child
of five picked it and administered to the other 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 R v. Saunders (1573) 2 Plowd 473
The second circumstance is as follows: does an act done, not out of legal duty, but
out of a moral obligation operate to break the chain of causation?
Here the rule is that an act reasonably done to rescue the victim or render medical
assistance, 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
This is because 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
A case in point is R v. Smith – in that case 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
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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 the original wound merely part of the history can it
be said that death does flow from the wound.
The third circumstance is this: 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
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.
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 [1954] 1 WLR 228, 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 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 is 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 the penalties.
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Then there are provisions in the Act that relate solely to causing death and the
question is, under what circumstances may we conclude that there has been a
novus actus interveniens, that is, an event which breaks the chain of causation
So we will discuss the fourth circumstance under the heading, Take Your Victim as
Find Him
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 one 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 – so it is no defense to a person
who stabs another to show that the victim was already dangerously ill
In the same vain, we have what is called the egg-shell skull concept – to put it
crudely, in harming your victim, you should assume that his skull is 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
Our response is that “You take your victim as you find him, warts and all.”
So then, what if the victim suffers some illness which might probably cause his death
and the accused applies a blow to ignite the disease to hasten his death – this is the
situation of co-existing circumstances
The question is: does the co-existing disease operate to break the chain of
causation?
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.”
In other words, an existing illness or susceptibility of the victim does not negative
causal connection
This old common law position is still good law in today’s Ghana
So s. 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
Section 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
A case in point is R v. Twum v. The Republic – in that case, 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
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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 despite the evidence of oedima, the blow was the proximate cause of
death
Still under Take Your Victim as You Find Him, what if the victim refuses
treatment after the harm caused and dies as a result – does this break the chain of
causation to exculpate the accused from liability?
Sometimes the 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/she refuses to undergo blood transfusion which is
necessary to heal him/her and he/she 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 proper or recommended treatment?
Then again, what if victim does not proper care of herself after the harm has been
caused and she dies as a result?
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, 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 behaviour subsequent to the injury
was unreasonable
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
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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 this concept
We will consider two English cases in which the issue arose
The first is R v. 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 for her own health, or
her refusal to undergo medical treatment, breaks the chain of causation
The second case is R v. 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 her 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.
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
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Church in England. Those brought up in the Hebraic 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
Indeed, I have not come across a decided case in which it was held that the victim’s
refusal to undergo medical treatment broke the chain of causation
Yet, there is an important point to note
It would be seen from the two English cases just discussed that the judges declined
to consider a possible defense that the victims perhaps acted unreasonably – this
may be as result of the circumstances surrounding the deaths of both victims
However, under Ghanaian law, as we have seen from section 64(c), the victims
wanton or reckless disregard for her health or condition operates to break the chain
of causation
This implies that in Ghana it is a defence available to the accused for the court to
consider
We have not had any case in Ghana on this point – but it has been argued, notably
by Prof. Mensa-Bonsu that a case bearing a fact pattern similar to that in R v. 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 guarantee of freedom of belief uncurtailed?
It is a tough moral question
Now, what if the victim is subjected to improper medical treatment subsequent to
the harm and she dies as a result?
The question stated differently is this: does negligent mistreatment operate to break
the chain of causation?
On this point section 64(d) provides:
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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 cannot, in law, be
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 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 likely consequence of the treatment,
or
 the treatment is grossly negligent
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 R v. Jordan
R v. Malcherek and R v. Basare
In Basare, 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 had this to say:
…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.
Still on the same point, some jurisdictions distinguish between cases where the
original wound was mortal and cases where it was not
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
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In Ghana, we do not insist on a 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
Now, we come to a very important consideration: does time lapse break the chain of
causation with respect 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 inflictor of the harm from liability?
In the 1908 English case of R v. Dyson, Lord Alverstone, CJ stated that unless the
death 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, and this is the
law of England today
Indeed, this is also 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 let’s consider another aspect of causation
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
So the principle in Wilkinson v. Downton does not apply here
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In the same vain, 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 vain, one cannot set up a person’s witchcraft as a defense for inflicting
harm on her
So in the case of R v. Gadam 14 WACA 442, 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 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(c) 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 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)
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CAPACITY AND DEFENCES
The criminal law is backed by punitive sanctions – the offender therefore faces, upon
conviction, the prospect of punitive sanctions, unless pardoned by the President
Due to the infliction of punishment for the breach of criminal prohibitions, the law
recognizes that it is not every member of our society that is amenable to punishment
either due to congenital defects, infancy or some other incapacity
Therefore, certain persons are exempted from the operation of the criminal law – a
curious example is that in the UK, the Crown cannot be prosecuted because that
would be Regina v. Reginam, which was thought to be impossible – indeed, the
courts belong to the Queen and so she cannot be prosecuted before them
We have a similar provision in our 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, for as long as he remains in office, the President is insulated from the
operation of the criminal law
Infants
We have established that the requirements of criminal liability are a guilty act and a
prohibited state of mind - the mental element in criminal liability supposes that the
offender is capable of making moral choices – in the sense that he 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
Infancy raises problems of criminal responsibility
The child may engage in a prohibited act but is her mind mature enough to
appreciate the difference between right and wrong – and to appreciate the nature of
the choice (if it is a choice) he makes?
Here, we are speaking about responsibility in the sense of moral or legal
accountability
A person is morally responsible if he can justly be blamed and punished for wrong-
doing – the policy is that children below a certain age do not fall in this category – so
on that score, she is not legally responsible
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It is recognized that a child of a certain age is immature and hence incapable of
making moral choices – in the sense of distinguishing between right and wrong
Thus, an act done by such an infant, which would otherwise constitute a crime, is
excused on the basis of legal incapacity
The policy question is: At what age does one wish to administer legal punishment to
child?
It all depends on a society’s conviction of the age of criminal majority
At common law, the age of criminal responsibility was 7 – but it has been raised to
10 years
In Ghana, the age of criminal responsibility is 12 years – it used to be 10 years until
the law was amended in 1998
Thus, 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
Therefore, as the illustration goes:
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
So the point is that in Ghana a child under 12 yrs is deemed to be incapable of
forming mens rea – hence incapable of committing a crime due to an undeveloped
capacity to appreciate the difference between right and wrong
Therefore, we say that a child under the 12th birthday is doli incapax – has no
capacity for mischief – as opposed to doli capax – capacity for mischief
At common law, as illustrated by R v. Gorrie, there was what was termed
mischievous discretion – where, in respect of a child between 7-14, the
presumption of innocence could be rebutted by evidence that the child knew that
what he was doing was wrong.
Under the concept of mischievous discretion, the presumption of innocence could be
rebutted by evidence of the child’s state of mental development
Thus, at common law, the law took cognizance of the fact that some infants develop
faster than others – thus, those whose mental faculties developed faster and were
held to appreciate the right from wrong, were held liable for their actions
So a subject test was applied to ascertain whether the child’s moral sense was
sufficiently developed to make it possible for here to be held criminally responsible
for her actions
The concept of mischievous discretion is not applicable in Ghana
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In Ghana, the law conclusively presumes a child less than 12 yrs to be incapable of
committing a crime, period
However, there is an unsettled issue in the area of sexual offences with respect to
children between ages 12-16
In Ghana, the age of sexual consent is 16 – a child below 16 is incapable of giving
his/her consent to sexual conduct
Therefore, under sec. 101, a person who engages in sexual conduct with a child less
than 16 yrs is guilty of defilement – it does not matter whether the child consented
to the act
So the question of sexual consent is settled where the child is a victim of a sexual
offence
But what if the child is the perpetrator of a sexual offence?
What if a boy of 14yrs forcibly has sex with a girl of 13yrs?
Or what if a boy of 15 forcibly has sex with a girl of 17?
Should he be liable?
The problem is this: Under sec. 26 the boy is doli capax, that is, he is capable of
committing a crime, because he is above 12 yrs – however, under sec. 101, the law
is that he cannot give his consent to a sexual act – so wherein lies his liability?
At common law, an attempt is made to solve 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, or as they say, between the devil and the deep blue sea – on the one
hand, we have the age of criminal majority of 12 yrs, so the boy of 14 who forcibly
has a sexual connection with another person is caught squarely – however, the sec.
101 says a boy of 14 has no capacity to consent to sex
What is your take on this issue?
It would appear that with respect to sexual offences, criminal liability is 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 is held malita supplet
aetatem – physically capable of committing rape
Is it reasonable to hold the child to such double standards?
Now let’s consider the defences.
Defences are either partial or complete.
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A complete defence operates to exculpate the accused from liability.
A partial defence does not entirely excuse criminal liability – it goes either
to reduce a charge to a lesser offence or to reduce punishment to a lesser
sentence
Ignorance or Mistake of Fact
Ignorance or Mistake of Law
Ignorance of fact can excuse one from criminal responsibility
However, ignorance of the law cannot excuse from criminal responsibility – or as we
say, ignorance of the law is no excuse – ignorantia juris non excusat.
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 not in ignorance of a fact but in ignorance of the law,
intends to engage in the prohibited conduct, although she does not know that that
conduct is prohibited by law.
Do you think this is fair?
So in R v. Tolson, it was held that a bona fide belief in the death of her husband at
the time of her second marriage afforded a good defence to the accused on a charge
of bigamy.
Cave J. remarked in that case 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.
See also R v. Wheat & Stocks
So sec. 29 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, except as in this Act otherwise expressly
provided, be exempt from liability to punishment for an act on
the grounds of ignorance that the act is prohibited
The case of Nyamena v. The State is very instructive – in that case, the appellants
were members of a certain religious sect. 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
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out 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 could not be Indian hemp, whatever it was.
It was 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
Reliance on custom appears to be no defense under sec.29 (2)
A case in point is Foli VII – in that case, the appellants were charged with causing
harm to a corpse they had cremated without lawful authority. On of the appellant’s
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 in sec. 29 applies to both mala in se and mala prohibita offences
The rule 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
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 to know of the contents
of the Criminal Offences Act?
The realists will tell you that the prophecies of what the courts may do in
fact and nothing more pretentious are what constitute law – this means that
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.
There is force in this contention, because ultimately, it is the duty of the judges to
determine the meaning of the provisions of the Act.
So even if 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?
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It is not only knowing how the judges may resolve an ambiguity on a particular
occasion, for we know 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 the risk that such a defense 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
Consent
Consent is a common law defence and it is not expressly stated as a defence under
Act 29.
However, there are several offences in Act 29 that are defined requiring 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 – so a person who takes another
person’s property with that person’s consent is not 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 the
establishment of consent on the part of 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
how disagreeable you find the thing to be – for instance, if a woman consents to sex,
she would not be held later to 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
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- see Comfort v. The Rep [1974] 2 GLR 1
Consent is dealt with under sections 14 and 42 of Act 29
Sec. 14 sets the specific rules on consent – while sec. 42 sets the limits to the giving
of consent
The chapeau or 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
By sec. 14(a) the following persons cannot give consent to any act:
 A child under 12 yrs
 With respect to sexual offences, a child under 16 yrs
 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 to any action
This flows from the consideration that an infant is not matured enough to consent
and also that an unconscious person cannot consent
It also flows from the consideration that a person of subnormal intelligence may not
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
On another score, though consent may be apparent, it is vitiated if there was no real
opportunity for choice
So consent is void if it is obtained by fraud or deceit – sec. 14(b)
Consent is obtained by fraud or deceit is void if it would have been refused but for
the existence of the fraud or deceit – sec. 14(f)
This is because the person giving the consent must be fully informed of the
circumstances of the transaction in order to make a fully informed choice
Thus, half-truths will not do – whole falsehoods are even worse
So as the illustration goes:
A by pretending to have the consent of a child’s father or under pretence of
medical treatment, induces the child to consent to sexual intercourse. The
consent is void. Or
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A induces a woman to consent to having carnal knowledge of her by
personating her husband. Her consent is void
A case in point is R v. Williams - In that case, the appellant was a Presbyterian
choirmaster, and it was arranged that he should give lessons in singing and voice
production to Vera Howley, a girl of 16 yrs, and subsequently it was arranged that
he should give lessons to Ada Cannell, a girl of 19 yrs. He had sexual intercourse
with Vera 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 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 R v. Bolduc & Bird (1967) 63 DLR (2nd)
82 – 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 persons were convicted
of indecent assault on the woman. On appeal, the convictions were quashed because
although her 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
Duress also vitiates consent – sec. 14(b)
Consent is obtained by duress, if it would have been refused but for the duress –
sec. 14(f)
So by section 1, 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 vitiates
consent
So as the illustration goes,
A induces a child to have sexual intercourse by threats of false
imprisonment. The consent is void
For consent to be vitiated by duress, the act inducing consent need not be of
extreme violence
If you submit to an act only because you are made to believe that without submitting
you will be overpowered and have the act done to you anyway, you have not
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consented in law – for instance, an armed robber ordering a female occupier of the
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 the money he/she owes you unless you
submit to sexual intercourse? Is your consent thereby vitiated?
Consent is also vitiated by the exercise of undue influence
Undue influence involves one person taking advantage of a position of power over
another person
So in general, the law, as a matter of policy, guards jealously the interests of the
weaker party in the following relationships:
 Parent/child
 Guardian/ward
 Priest/member of parish
 Solicitor/client
 Doctor/patient
 Employer/employee
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 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
For the purposes of consent, the exercise of authority is not limited 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)
=`1
Consent is obtained by the undue exercise of authority if it would have been refused
but for the exercise of authority
Under sec. 14(c), one of two situations may vitiate consent:
1. consent that is obtained by or under the exercise of any kind of authority;
and
2. consent that is obtained by the exercise of authority by operation of law but
which is exercised otherwise than in good 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
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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
However, under the first form, there is no consideration as to the bona fides or mala
fides of the obtaining of consent by or under the exercise of authority
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
R v. Nichol – in that case, 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 between his
legs, put his hand up her petticoat, unbuttoned his breeches, pulled up her petticoat,
put his private part in hers, 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 liable to be punished as for an assault
A case in point is Re T [1992] 4 All ER 649. 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 on 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
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relevant practices she filled: 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. 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 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 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 vitiated by a 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:
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
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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 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 [2000] 4 All ER 961
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 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 not
harm others? – this has been the debate between the libertarians and the
authoritarians
In most cases, 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
However, there are limits to the right to consent – the law may 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 contained in sec. 42
The first limitation is that a person cannot consent to his own death
Thus, sec. 42(a) provides that:
The killing of a person cannot be justified on the ground of consent
A case in point is R v. Cato – in that case it was established that although the victim
had consented to the injection of heroin, his consent was not generally a defense to
a charge of manslaughter
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Another case in point is R v. Pike – in that case, 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 there was evidence that she consented to the act
On this same point, a person who commits euthanasia cannot set up the consent of
the victim as an excuse
Aside of death, 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 R v. Coney (1882) 8 QBD 534 at 551, 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 infliction is injurious to the public as well as to the
person
A case in point is R v. Donovan – in that case, 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 overhead 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.” The victim contended that she did not take this remark serious.
The appellant contended that the victim consented to the spanking. 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 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
The exception here is that 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 medical or surgical
treatment or for the benefit of the child – in such a situation, the child cannot revoke
the consent – sec. 42(d)
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- see Re W (A Minor)[1992] 4 All ER 627
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
 intoxication, or
 insensibility – for instance PVS or coma
- section 42(e)
However, such consent may be revoked or given by a person authorized 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
So under sec. 42(f), where the intent to cause harm is established, the consent to
fight is rendered ineffective in law as a matter of public policy whether the fight is
lawful or unlawful
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 of kicks him
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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)
Insanity
Insanity is more of a legal concept than a medical one – it is the law that determines
whether a person is insane based on his mental circumstances determined by
medical science
There is no legal definition of insanity – it is a combination of factors or states of
affairs from which the law draws a conclusion as to the sanity or otherwise of a
person
At common law everyone is presumed to be sane
The genesis of the defence of insanity may be traced to the 1843 case of M’Naghten
or McNaghten – the spelling of the defendant’s name varies in the law report – 8 ER
718
Daniel McNaghten shot and killed Edward Drummond, the Secretary of Prime
Minister Sir Robert Peel, perhaps thinking it was Peel himself. McNaghten, who
suffered from what today would be called paranoia, was actuated by the morbid
delusion that he was being persecuted by “Tories”. He was acquitted on the ground
of insanity.
The supposed leniency of the verdict caused a public outcry. The law of insanity was
debated in the House of Lords, and their Lordships decided to require the judges to
advise them on the relevant legal principles
Five questions in all were put to 14 judges. But because the questions were not
referable to any particular case, the response of the judges technically could not be
regarded as precedent. However, the response of the judges, which came to be
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known as the McNaghten Rules have been so followed and cited that it is now
authoritative.
The five questions posed by the House of Lords were the following:
 what is the law respecting alleged crimes committed by persons afflicted with
insane delusion in respect of one or more particular subjects or persons: as
for instance, where at the time of the commission of the alleged crime the
accused knew he was acting contrary to law, but did the act complained of
with a view, under the influence of insane delusion, of redressing or revenging
some supposed grievance or injury, or of producing some supposed public
benefit?
 What are the proper questions to be submitted to the jury, where a person
alleged to be afflicted with insane delusion respecting one or more particular
subjects or persons, is charged with the commission of a crime (murder, for
example) and insanity is set up as a defence?
 In what terms ought the question to be left to the jury as to the prisoner’s
state of mind of mind at the time when the act was committed?
 If a person under an insane delusion as to existing facts, commits an offence
in consequence thereof, is he thereby excused? and
 Can a medical man conversant with the disease of insanity, who never saw
the prisoner previously to the trial, but who was present during the whole trial
and the examination of all the witnesses, be asked his opinion as to the state
of the prisoner’s mind at the time of the commission of the alleged crime, or
his opinion whether the prisoner was conscious at the time of doing the act
that he was acting contrary to law, or whether he was labouring under any
and what delusion at the time?
The response of the judges was essentially as follows:
The jurors ought to be told in all cases that every man is to be presumed to be sane,
and to possess a sufficient degree of reason to be responsible for his crimes, until
the contrary be proved to their satisfaction; and that to establish a defence on the
ground of insanity, it must clearly be proved that:
a) At the time of the committing of the act, the party accused was labouring
under such a defect of reason, from disease of the mind,
b) As not to know
 the nature and quality of the act he was doing, or, if he did know it,
 that he did not know he was doing what was wrong
Act 29 retains the underlying principles of McNaughten but there are fundamental
differences
The rationale underlying the defence of insanity is that since we look at a person’s
state of mind to determine his criminal liability, if by some reason he had lost his
mental faculty at the time of engaging in a prohibited conduct, we would say that his
mind was absent or non-existent and therefore no purpose will be served to look at
his non-existent state of mind since he had no mind – and thus his moral
blameworthiness is also absent
However, we do not proceed on the assumption that everyone is insane – so I said
previously that everyone is presumed to be sane
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Owing to this presumption of sanity, it is the duty of the accused to lead evidence to
establish his insanity on a balance of probabilities
In Ghana, the presumption of sanity is rebutted where one of two situations is
established, namely
1. a defect in the mental faculty which renders the accused incapable of
knowing the nature and consequences of his actions; or
2. a mental delusion which renders the accused an unfit subject for punishment
The defence of insanity is a partial defence – that is – a successful plea of insanity
does not lead to an acquittal – it leads to the pronouncement of the verdict of “guilty
but insane” – this is known as the special verdict provided for under sec. 137 of Act
30 – see the chapeau or opening paragraph of sec. 27 of Act 29
Under the special verdict, the insane convict is not treated like an ordinary convict –
he is kept away from society often in a mental institution “till the pleasure of the
President be known” – sec. 137 of Act 30
So we say that criminally insane are kept under the President’s pleasure
The rationale underlying sec. 137 of Act 30 and the chapeau of sec. 27 of Act 29 is
that a homicidal maniac cannot be let loose on society, so although we free the
criminally insane from punishment, at the same time we compel them to undergo
treatment for their own sake and for the sake of society
The special verdict of “guilty but insane” appears to be in conflict with the underlying
philosophy that an insane person is not morally responsible because his mind is non-
existent and so he cannot form mens rea – if he cannot form mens rea why do we
say he is guilty but insane? Why is he guilty if cannot form mens rea? – In England,
they use perhaps a more appropriate formulation – “not guilty by reason of insanity”
The first situation that upsets the presumption of sanity – that is – a defect in the
mental faculty which renders the accused incapable of knowing the nature and
consequence of his actions, is treated under sec. 27(a), which provides that:
Where a person is accused of a criminal offence, the special verdict
provided by Act 30 in the case of insanity is only applicable if that
person was prevented, by reason of idiocy, imbecility, or a mental
derangement or disease affecting the mind, from knowing the nature
or consequences of the act in respect of which that person is accused
So as the illustrations go:
 If a person by reason of idiocy is incapable of knowing that the act of
that person will cause death, the special verdict applies
 If a person commits homicide by reason of a paroxysm of madness
which at the time makes that person incapable of considering that
murder is a criminal offence, the special verdict applies
 The special verdict is not applicable merely because it is proved that
by reason of a mental derangement the accused has a propensity to
homicide
Idiots and imbeciles are persons of defective mental faculties or feeble-minded
persons or persons of subnormal intelligence
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It is not every idiot or imbecile or mentally deranged person or a person suffering
from a disease of the mind that can set up his condition as a defence upon his
commission of a crime
To set up such mental condition as a defence, the person must show that he was
prevented by that condition from knowing the nature or consequences of the act – so
the question is: did the person know what he was doing?
If it happens that despite the person’s mental condition, if he knew what he was
doing at the time of the commission of the crime, he will be held liable
So in R v. Windle [1952] 2 All ER 1 – case, the appellant was convicted of the
murder of his wife. He was a man of little resolution and weak character who was
married to a woman 18yrs older than himself. His married life was very unhappy. His
wife, in the opinion of the doctors, though they never saw her, must have been
certifiable, and was always talking about committing suicide. The appellant became
obsessed with this and discussed it with his workmates until they were tired of
hearing him, and on one occasion, one of them said “Give her a dozen aspirins”. On
the day of the crime the appellant seems to have given his wife 100 aspirin tablets,
which was a fatal dose. Later, he told the police that he supposed he would be
hanged for it.
The defence at the trial was that he was insane. There was some evidence that the
appellant suffered from some defect of reason or disease of the mind. The doctor
called by the defence said it was a form of communicated insanity known as folie a
deux which arises when a person is in constant attendance on a person of unsound
mind.
The appeal was dismissed. In delivering the judgment of the Court of Criminal
Appeal, Lord Goddard CJ observed:
The evidence that was given on the issue of insanity was that of the doctor
called by the appellant and that of the prison doctor who was called by the
prosecution. Both doctors expressed without hesitation the view that when
the appellant was administering this poison to his wife he knew was doing an
act which the law forbade…It may well be that in the misery in which he had
been living with this nagging and tiresome wife who constantly expressed the
desire to commit suicide, he thought she was better out of the world than in
it. He may have thought it was a kindly act to put her out of her sufferings or
imagined sufferings, but the law does not permit such an act as that…A man
may be suffering from a defect of reasoning, but, if he knows that what he is
doing is wrong – and by ‘wrong’ is meant contrary to law – he is responsible.
Flowing from this, the important consideration is the mental state of the accused at
the time he committed the act
This may be ascertained from medical history and the acts of the accused
contemporaneous to the event; his acts immediately before or at the time of the act,
or immediately after the act
A case in point is Williams – Mariama Williams was married to JB Lari. It appeared
that Mr. Lari had perhaps had a sexual connection with Mariama’s pre-marital
daughter. It also appeared that Mariama set fire to Mr. Lari and burnt him to death.
She at first admitted setting the fire but denied it at the trial. She set up insanity as
37
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