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Criminal LAW Module

Law (University of Zambia)

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Contents
1. Introduction.........................................................................................................................................6
1.2 PURPOSE OF CRIMINAL LAW............................................................................................................7
1.3 THE ELEMENTS OF A CRIME..........................................................................................................8
2. COURTS AND THEIR JURISDICTION....................................................................................................10
2.1 The term jurisdiction has been defined;.........................................................................................11
2.2 SUBORDINATE COURTS...................................................................................................................12
2.3 HIGH COURT....................................................................................................................................13
2.4 SUPREME COURT.................................................................................................................................14
3. GENERAL DEFENCES..............................................................................................................................15
3. 1 Difference between Justification and Excuse......................................................................................16
3.2 Mental Incapacity................................................................................................................................16
3.3 INSANITY..............................................................................................................................................18
3.4 DIMINISHED RESPONSIBILITY..............................................................................................................21
3.5 CONSENT.............................................................................................................................................23
3.6 SELF DEFENCE......................................................................................................................................24
3.7 MISTAKE AND INTOXICATION...............................................................................................................26
4. PROVOCATION.......................................................................................................................................28
5. PRELIMINARY OFFENCES.......................................................................................................................31
5.2 Impossibility:.......................................................................................................................................32
5.3 Conspiracy;..........................................................................................................................................32
6. PARTICIPATION IN AN OFFENCE.............................................................................................................34
6.1 SECONDARY PARTIES WHO ASSIST OR ENCOURAGE THE COMMISSION OF OFFENCE.........................36
6.2 GIVING ASSISTANCE OR ENCOURAGEMENT........................................................................................37
6.3 GENERAL LIABILITY OF SECONDARY PARTIES;......................................................................................38
7. JOINT UNLAWFUL ENTERPRISE..............................................................................................................39
7.1 OFFENCES OUTSIDE THE COMMON PURPOSE.....................................................................................40
8. ASSAULT AND BATTERY..........................................................................................................................42
8.1 Common assault..................................................................................................................................43
8.2 ASSAULT OCCASIONING ACTUAL BODILY HARM..................................................................................46

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8.3 GRIEVOUS HARM.................................................................................................................................48

R v Edwards (1957) R & N 107...........................................................................................................49
8.4 UNLAWFULLY WOUNDING...................................................................................................................50
8.5 CONSENT AS A DEFENCE TO A CHARGE OF ASSAULT...........................................................................51
R v Wilson [1997] QB 47, CA..................................................................................................................52
HIV/AIDS................................................................................................................................................53
9. HOMICIDE..............................................................................................................................................53
9.1 MURDER..............................................................................................................................................55
9.2 CAUSATION..........................................................................................................................................56
9.3 What is the actus reus of murder?......................................................................................................59
...............................................................................................................................................................61
9.5 What is the rule on provocation?........................................................................................................62
10. MANSLAUGHTER.................................................................................................................................63
10.1 MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT.......................................................................66
11. SEXUAL OFFENCES...............................................................................................................................69
11.1 RAPE..................................................................................................................................................69
11.2 Corroboration....................................................................................................................................73
11.3 INDECENT ASSAULT............................................................................................................................78
11.4 DEFILEMENT......................................................................................................................................81
11.5 Sexual harassment.............................................................................................................................83
12. OFFENCES AGAINST PROPERTY............................................................................................................83
12.1 THEFT.................................................................................................................................................84
12.2 FALSE PRETENCES..............................................................................................................................92
12.3 OBTAINING PECUNIARY ADVANTAGE BY FALSE PRETENCES...............................................................94
12.3 ROBERRY...........................................................................................................................................96
12.4 AGGRAVATED ROBBERY..................................................................................................................100
12.5 BURGLARY AND HOUSE-BREAKING..................................................................................................102
12.6 STOLEN PROPERTY...........................................................................................................................107
12.7 FORGERY.........................................................................................................................................111
13. TREASON...........................................................................................................................................112
13.1 SEDITION.........................................................................................................................................115
13.2 PROMOTING TRIBAL WARS..............................................................................................................117

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13.3 INCITING MUTINY............................................................................................................................118

13.4 UNLAWFUL ASSEMBLY AND RIOT....................................................................................................119
13.5 DISORDERLY BEHAVIOUR IN PUBLIC PLACE;....................................................................................120
14.OFFENCES AGAINST PUBLIC AUTHORITY............................................................................................121
14.1 Contempt of Court...........................................................................................................................121
14.2 Fraud or Breaches of Trust by Public Officers...................................................................................121
14.3 Disobedience of Statutory Duty.......................................................................................................122
14.4 CRIMINAL DAMAGE.........................................................................................................................122
15. THEORIES OF PUNISHMENT...............................................................................................................124
15.1 SENTENCING....................................................................................................................................125

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CRIMINAL LAW MODULE

INTRODUCTION
Aim: This module aims to introduce you, as a law student, to the concepts related to criminal
law as a means employed to control deviant behavior, and social policy pertaining to the
administration of criminal justice. The module also aims to introduce you as a student to
substantive offences under the Penal Code.

Objectives

At the end of the module, you should be able to:

 Define key concepts related to criminal law

 Appreciate the nature of criminal law
 Understand and analyze the concepts of criminal law

This module has 15 units requiring about 7 hours of work each.

STUDY SKILLS

As a distant learner, you will be taking control of your learning environment. You therefore need
to balance up in the manner in which you utilize your time. You also need to reacquaint yourself
in areas such as essay writing as well as coping with examination pressure.

NEED HELP

In case you have any problems and questions, you may use the services of the Institute of
Distance Education at the University of Zambia or contact the Course Coordinator in the Law
School. (Indicate the offices and contact details of the offices)

ASSESSMENT

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Continuous Assessment 40%

Assignment 10%

Two Tests 30%

Final Examination 60%

How many assignments and how many tests?

Prescribed Reading:

Simon Kulusika Texts, Cases and Materials on Criminal law in Zambia,UNZA 2005

Recommended Books

J Hatchard and M. Ndulo, Readings in Criminal law and Criminology in Zambia: Multimedia
Publications 2009

John Hatchard and Muna Ndulo, A Casebook on Criminal Law: Institute for Public Policy
Research 2008

You are encouraged, however, to read beyond the prescribed and recommended readings listed
above in order to deepen and broaden your understanding of criminal law. You may find the
references provided at the end of the module beneficial, but you are encouraged to utilize other
sources of information such as the University library, which is a wealthy source of data both
from published books and unpublished theses.

ACKNOWLEDGEMENTS

This is a brief summary of the context for the course you are about to begin. It was prepared by a
faculty member from the School of Law. This module was prepared by Misozi Lwatula

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We hope you will find this module helpful and also personally satisfying. We wish you every
success.

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1. Introduction
Welcome to theme one of this Module. This theme introduces you to criminal law and its
characteristics.

The Goal

The goal of this unit is to enable you demonstrate an understanding of the characteristics,
purpose and functions of criminal law.

General Objectives

At the end of this unit, you should be able to

Explain the meaning of a crime

Explain the elements that make up a crime

Explain the purpose of criminal law

Explain the functions of criminal law

Explain why a particular conduct is regarded as a crime.

REFLECTION

What is your understanding of the meaning of the word ‘crime’? Take a five minutes to write
down in your own words, what you think is the meaning of a crime.

Many people think that all moral wrongs are crimes. Do you think that moral wrongs and legal
wrongs are the same?

What is a crime? A crime is a legal wrong which is prohibited by law. A crime may be defined as
an act (or omission or state of affairs) which contravenes the law and which may be followed by
prosecution in criminal proceedings and the attendant consequence, following conviction, of

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punishment.iA crime has two elements; there is the actus reus and the mens rea. The actus reus
simply means the act itself. Whereas the mens rea means the intention of the person to cause the
act prohibited. The function of criminal law is to set boundaries within which the criminal
justice system operates. Criminal law defines the acts, omissions or state of affairs which amount
to crime. According to Allen, criminal law, limits and controls the legitimate exercise by the
State of its coercive power to investigate crime and prosecute, convict and punish criminals. This
means that criminal law also places limits on what the state can do. If something is not provided
for in the law, the state will be acting illegally if it goes ahead with such an action.

1.2 PURPOSE OF CRIMINAL LAW

The purpose of criminal law is;

i) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens
substantial harm to individuals or public interests;
ii) to subject to public control persons whose conduct indicates that they are disposed to
commit crimes;
iii) to safeguard conduct that is without fault from condemnation as crime;
iv) to give warning of the nature of conduct declared to be an offence;
v) to differentiate on reasonable grounds between serious and minor offences

Functions of Criminal law

i) Retribution and moral blame worthiness; the main purpose of punishment is

retribution. The person if found guilty by courts of law must be made to pay for his or
her actions. According to Allen, the punishment inflicted, must not represent a blind
act of vindictive retaliation; it must be both reasoned and reasonable. The
punishment the criminal deserves must bear some relationship to the harm he has
caused. Punishment can only be considered reasonable where the courts respect the
concept of proportionality.
ii) Justice and equality; the judge seeks to do justice by imposing the sentence the
criminal deserves. But he also strives to be just in another and sometimes conflicting
way – that is, by treating the criminal before him equally with others who have an

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equal degree of guilt. Equality of treatment is very important and seen as fundamental
to justice.
iii) Protection of the public; the main objective of criminal law is to protect the general
public from harm. It is the deterrence aspect of punishment which is prominent here;
and there is no doubt that judges do believe in the value of punishment both as a
deterrent to the person sentenced, to would be offenders and to the general public.
iv) The reformation of the offender; much of the Penal legislation is directed at
rehabilitating the offender. Reformation is not the main object of sentencing,
deterrence also comes in.

Do you think that reformation is an important aspect of criminal law in Zambia?

1.3 THE ELEMENTS OF A CRIME

It is a general principle of criminal law that a person may not be convicted of a crime unless the
prosecution has proved beyond reasonable doubt both

i) that he or she has caused a certain event or that responsibility is to be attributed to

him or her for the existence of a certain state of affairs, which is forbidden by
criminal law
ii) that he or she had a defined state of mind in relation to the causing of the event or the
exercise of the state of affairs.

The event, or state of affairs, is called the actus reus and the state of mind is the mens rea of the
crime. It is the duty of the prosecution to prove that a person is guilty. Give an example of a
person who has committed an offence.

According to the House of Lords in Woolmington v Director of Public Prosecutions [1935] ac

462, SHC 39, it was held that it is a misdirection to tell a jury that D must satisfy them that the
killing was an accident. The rule is that the jury must acquit even though they are not satisfied
that D’s story is true, if they think it might reasonable be true. They should convict only if
satisfied beyond reasonable doubt that it is not true.

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The basic principle under criminal law is that a person is not guilty for his conduct unless it is
accompanied by a guilty mind. Therefore the actus reus only amounts to a crime if it is
accompanied by the mens rea. Under criminal law a crime will only exist if the mens rea is
accompanied by the actus reas.

The Nature of an Actus reus

The actus reus includes all the elements in the definition of the crime except the accused mental
element.

It may indeed consist in a ‘state of affairs’, not including an act at all. An actus reus requires
proof of an act or omission or as the case maybe a state of affairs.

The nature of Mens rea

This is a technical term. It is often translated as a guilty mind, but this maybe misleading. A man
may be acting with a perfectly clear conscience, believing his act to be morally, and even legally,
right, and yet be held to have mens rea. In order to really appreciate this term, it is necessary to
distinguish between a number of different possible mental attitudes which a man may have.
These are;

 Intention; a person will cause a result if he acts with the purpose of doing so. But
intention has a much broader meaning than that. It may also mean foresight of high
probability of serious bodily harm
 Recklessness; a person who does not intend to cause a harmful result may take an
unjustifiable risk of causing it. To establish recklessness it is necessary in all cases to
show that a person took an unjustifiable risk. The question is whether the risk was one
which a reasonable and prudent man might have taken. The test here is an objective test.

Transferred Malice: If a person, with the mens rea of a particular crime, does an act which
causes the actus reus of the same crime, he is guilty, even though the result, in some respects, is
an unintended one. A intends to murder Mulenga but shoots at a man who he believes to be

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Mulenga. This man is Bwalya. This is obviously an unintended result; but D intended to cause
the actus reus which he has caused and he is guilty of murder.

Coincidence of actus reus and mens rea

In order for an act it be a criminal offence, the mens rea must coincide in point of time with the
act which causes the actus reus. The burden is upto the prosecution to prove both elements of the
crime

Activity

After the discussion on the nature f actus reus and mens rea, consider the following:

Suppose that Banda has the intention of killing Mwape approaches Mwape but before Banda has
a chance Mwape is killed by Nyambe. Would Banda be guilty of killing Mwape?

It is important to note that the act forbidden must be willed. According to Allen, where the actus
reus of an offence requires conduct on the part of the accused, whether an act or omission,
liability will only accrue where the conduct is willed; it is not sufficient that the accused by his
bodily movements performed the prohibited conduct or brought about the prohibited
consequences defined by the actus reus of the offence. According to the case of Bratty v A G for
Northern Ireland (1963) AC, Lord Denning stated that the ‘requirement that it should be a
voluntary act is essential, not only in the murder case, but also in every criminal case’.

In offences requiring mens rea, if the conduct is not willed there will also be an absence of mens
rea on the part of the accused, but even if the offence is one of strict liability, requiring no proof
of mens rea, it is still necessary to prove that the accused’s conduct was voluntary. To convict
and impose punishment on an accused who was not responsible for his conduct would be unjust.
From the above, it can be said, therefore that Banda is not guilty of killing Mwape.

2. COURTS AND THEIR JURISDICTION

The goal of this unit is to enable you demonstrate an understanding of courts and their jurisdiction in
Zambia.

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Objectives:

After reading this unit, you should be able to show an understanding of the following:

 Jurisdiction
 Subordinate courts
 High court
 Supreme court

Activity

What does the term jurisdiction mean?

2.1 The term jurisdiction has been defined;

i) to mean the authority of the court to allow one to present his/her case before the court

iii) and the power of that court to decide on matters that are presented

In Zambia jurisdiction of the courts is determined by legislation. We have s. 5 and s. 6 of the Penal Code.

Section 5 talks about offences committed in Zambia and s. 6 talks about extra-territorial jurisdiction.

What is extra territorial jurisdiction? This will arise in two instances;

i) where a Zambian does an act outside the country that results in a criminal offence in
Zambia. See the case of Ngati and others v The People 2003 ZR 100.
ii) S.6(2) a foreigner commits an offence and that offence is partially committed in Zambia. See
the case of The People v Roxburgh 1972 ZR 31. Another important principle in s6 is that
where a Zambian commits an offence outside the country and the Zambian is tried again in
this country. This is a principal of double jeopardy. Zambian courts do not have jurisdiction
over non-Zambian who commit crimes outside Zambia.
Activity
What is meant by double jeopardy?

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Relating to the jurisdiction of the courts, is the principle of criminal responsibility. Our courts have no
jurisdiction to try a person who is below 8 years for any criminal offence. This is according to s.14 of the
Penal Code. What about children above the years of 8? Courts have jurisdiction to try a person between
8 – 12 if it can be shown that the accused person knew that he ought not to do the act that amounted to
the offence.

Activity

Can the Zambian courts try a person who is 10 years old if that person was involved in a crime?

Do lawyers have an audience in the local courts? No, lawyers do not have audience in the local courts.

2.2 SUBORDINATE COURTS.

Article 91(1)(d) of the Constitution makes provision for the establishment of the subordinate courts. But
s. 3 of the Subordinate Court Act is the enabling Act. It provides that they shall be courts that shall be
subordinate to the High Court in each district.

The jurisdiction is limited to offences committed within these districts i.e Lusaka magistrate jurisdiction is
limited to Lusaka.

In each and every district there are subordinate courts of the three classes. That is class 1, class2, and
class 3.

Subordinate court of 1st class, you have the Chief Resident Magistrate, Principal Resident Magistrate,
senior resident Magistrate, resident Magistrate or Magistrate class 1. These are qualified lawyers.

Then you have magistrate of second class and then magistrate of third class.

s.7 of the Subordinate Court Act provides that these magistrates have equal power, authority and
jurisdiction. What does this mean?
It basically means that you cannot appeal from class 3 to class 1. And that class 1 cannot review the
decisions of class 3.

But remember that the sentencing power of these magistrates is not the same.

What is the highest sentence that a subordinate court can impose? It is nine years.

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(activity) If it is that little, what about defilement cases? The power comes from s.217 of the CPC which
states that if a magistrate tries a person and at end of trial convicts that person but if minimum sentence
is above its jurisdiction, it should commit that person to the High Court for sentencing.

A person will be tried in the district where they committed the offences. So if a person steals in
Chililabombwe and runs to Kabwe, he will have to be taken back to Chililabombwe in order to be tried.
But there are exceptions;

i) s. 70 of the CPC, a person may be tried in the district where the consequences of his crimes
were felt e.g you dump toxic waste in the Kafue rivers in Kitwe and a person in Kafue eats
the fish and gets sick
ii) s. 71 of the CPC; crime was committed in one district but the offence become connected
with another offence committed in another district. The car is stolen from Lusaka but is
found in Chinsali transporting stolen goods from Chinsali. The accused will be tried in
Chinsali because the case is connected to the theft in Chinsali.

But remember that you can apply to have the case heard in another district if it is not practical to try the
case where the offence happened.

2.3 HIGH COURT

The Constitution makes provisions for the establishment of the High Court but the enabling Act is the
High Court Act. According to article 91 of the Constitution, the High Court is supposed to have unlimited
and original jurisdiction.

What does original jurisdiction mean? A matter can commence before the high court. Supreme Court
does not have original jurisdiction in any criminal matter only in election petition.

According to the case of Zambia National Holding Ltd and UNIP v Attorney General 1994 ZR 22, the
Supreme court stated that unlimited jurisdiction does not mean limitless, the High Court jurisdiction is
limited by the Constitution and other laws.

The High Court has supervisory jurisdiction over the subordinate courts. It basically means that;

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i) it can hear appeals from the subordinate courts

ii) it can also review a decision of the subordinate court

Another way in which the High Court exercises jurisdiction over the subordinate courts is set out in S.80
of the CPC enabling the parties to the proceedings, either the DPP or the accused person to apply to the
High Court for change of venue i.e from one subordinate court to the other.

S.4 of the High Court Act provides that the High Court judges shall have equal powers, authority and
jurisdiction. A High Court Judge does not have the power to overrule the decision of another High Court
judge on the same facts.

With the High Court there is no limitation on sentencing powers so long as that is supported by the law.

With regards to the High Court, there is no limited territorial jurisdiction to the districts. The High Court
usually sits in different provinces.

Activity

Banda is allegedly to have committed defile in Chipata. He runs away to Kasama and while there he is
apprehended. Can he be tried in Kasama? If not, please provide reasons

2.4 SUPREME COURT

Article 92 of the Constitution makes provisions for the establishment of the Supreme Court but the
enabling Act is the Supreme Court Act.

The Supreme Court does not handle any criminal trial, it only handles appeals.

A person who has been convicted can appeal to the Supreme court on both questions of fact and law or
on either.

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3. GENERAL DEFENCES
The goal of this unit is to enable you demonstrate an understanding of defences in criminal law.

Objectives:

After reading this unit, you should be able to show an understanding and be able to critique the
following:

 mental incapacity
 insanity
 diminished responsibility
 self defence
 consent
 mistake and intoxication
 provocation

These are available to an accused person which she or he may use to negate criminal liability for
whatever offence which she or he may be charged with.

The defences that we are going to look at include defences which affect the accused person’s capacity to
commit the offence charged. These include the defences of infancy, insanity and automatism.

Activity

What is the effect of these defences?

Where these defences apply, the law presumes that the accused person is incapable of committing the
offence. Other defences to be considered are those defences which operate to negate an element of
crime such as mens rea eg self defence, or prevention of crime, mistake.

Some other defences, such as duress, necessity, etc, which will be reviewed are those defences where
the prosecution can prove the various elements of the offence, including the actus reus and mens rea,
but the law determines that the criminal liability of the accused person is negated by excusatory
circumstances.

The general defenses are broadly divided into two groups; those which are referred to as justificatory
and those which are excusatory in nature, i.e, the former are used to justify an accused person’s criminal
liability and the later are those that excuse an accused’s criminal conduct.

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3. 1 Difference between Justification and Excuse

Justification means that the defendant’s action is not disapproved of in the use of force, e.g, in self
defence, to protect the defendant’s property from being stolen or destroyed. The criminal law exempts
the accused from criminal sanctions.

In the case of defences, that excuse the conduct of the defendant, the conduct of the accused is carefully
scrutinized. The criminal law declares the accused not guilty owing to some lack of blame which could
have been attributed to him/her. She is not fully accountable for her conduct. These defences; duress,
necessity, intoxication, mistake, diminished responsibility, automatism, infancy and provocation provide
an excuse for the accused person’s acts. Defences of diminished responsibility and provocation do not
fully exonerate the defendant.

Justification for the purposes of criminal law is ‘any defence affirming that the act, state of affairs or
consequences are, matters about which society is neutral.’ As regards excuse, these defences may admit
the wrongfulness of the accused person’s acts ‘but excuse the actor because conditions suggest that the
actor is not responsible for his deed.’

Activity

What is the effect of the defence of provocation?

3.2 Mental Incapacity

Infancy:

What is the law on infancy?

Penal Code, Cap 87, section 14

1) A person under the age of 8 is not criminally responsible for act or omission
2) A person under the age of twelve years is not criminally responsible for an act or omission,
unless proved that at the time of doing the act or making the omission he had capacity to know
that he ought not to do the act or make the omission.
3) A male person under the age of 12 years is presumed to be incapable of having carnal
knowledge.

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Children Below 8

The law presumes that a child under the age of 8 is incapable of committing an offence. Therefore such a
child cannot be convicted. Even if that child steals something and brings it home, the parents who
receive or retain the thing are not liable to be convicted for receiving or retaining stolen property, since
the act of the child could not amount to stealing or theft.

Activity

Mrs. Banda encourages her child Mwaba, who is 6 years old to steal from their neighbour’s house. Who
will be held accountable under criminal law?

Children Below 12

What is the presumption for children above 8 but below 12 years? A child over 8 years but below 12
years at the time of the commission or omission of the offence in question is presumed by the criminal
law in Zambia to be incapable of committing the offence. Unlike for a child under eight years of age, the
presumption is rebuttable by the prosecution proving that the defendant knew that his or her act was
wrong. The presumption can only be rebutted by clear, positive proof of that (knowledge) beyond
reasonable doubt. It should be noted that it is not enough for the prosecution to prove that the child
regards his or her act or omission as being merely mischievous. Even if the act committed was tragic,
horrific or disgusting, it will not be sufficient to rebut the presumption.

In Zambia, under section 14(3) of the PC, the law presumes that a child (male) under 12 years of age to
be incapable of having carnal knowledge of a woman or girl. Therefore, a child of twelve years could not
be convicted of any offence requiring sexual intercourse, such as rape, defilement. In England and Wales,
this presumption has been abolished by section 1 of the Sexual Offences Act, 1993.

Activity

Sitali who is 10 years old was found having carnal knowledge with a girl aged 8. The girl’s parents are
really upset and want him punished for his conduct. They report him to the police station. Can he be
convicted of defilement?

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3.3 INSANITY
What do you under by the term insanity?

What is the presumption? According to s11 of the PC, every person is presumed to be of sound mind,
and to have been of sound mind at any time which comes in question, until the contrary is proved.

According to s12 of the Penal Code; a person is not criminally responsible for an act or omission if at the
time of doing the act or making the omission he is, through any disease affecting his mind, incapable of
understanding what he is doing, or of knowing that he ought not to do the act or make the omission.
But a person may be criminally responsible for an act or omission, although his mind is affected by
disease, if such disease does not in fact produce upon his mind one or other of the effects above
mentioned to that act or omission. The law that every person is sane or rational at all times until the
contrary can be established by evidence. This means that criminal law applied to rational people with
sound minds. Persons who are found to lack such capacity may be dealt with in accordance with the
rules in the PC and procedures laid down in the Criminal Procedure Code and the Mental Disorder Act.
The court dealing with an accused person, who is found to be insane may be adjudged as ‘not guilty by
reason of insanity.’ Such a special verdict entails that the person concerned may be detained and
confined in ‘any mental institution, prison or other place’ ‘during the president’s pleasure’, until the
president authorizes a discharge.

A plea of unfitness to plead, on the side of the person with unsound mind, may be made on the initiative
of the defence , prosecution or judge. Criteria of being fit or unfit to plead are not specified in the
Criminal Procedure Code. This power to determine fitness lies with the court trying the case. But the
court may be guided by the provisions of section 12 of the PC, whether the accused person had the
ability at the time of the offence to comprehend what he or she had done and whether he or she has the
ability to understand the proceeding in which he or she stands accused. The court has to abide by the
procedures outlined in sections 160, 161 of the CPC. Depending on the evidence, the court may acquit
the defendant or convict him or make a special finding thereby ordering the defendant to be detained
during the President’s pleasure.

The issue of fitness or unfitness to plead is a central one in criminal proceedings, not only relevant to
cases involving persons suffering from disease of mind, but also of relevance to any trial which is
supposed to serve the interest of justice. When the question arises of whether a person is able or unable
to make a plea during trial then s160 of the CPC would apply. If the court finds that the person is unable

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to making a proper defence under s 160 of the CPC, the court shall enter a plea of ‘not guilty’ and shall
proceed to hear the evidence. The court may then acquit the accused or convict the accused or make a
special finding. If the court has convicted the accused or made a special finding then the accused will be
detained during the president’s pleasure.

S 167 of the CPC talks about insanity at the time of committing the offence.

The leading case in respect of fitness or otherwise to plead is the case of Pritchard (1836) 173 ER 135,
where it was said that the accused person must demonstrate that he was possessed of ‘sufficient
intellect to comprehend the course of the proceedings in the trial’. A recent statement of the rule was
advance by Otton, LJ in the case of Friend (1997) 2 ALL ER 1012, where it was stressed that “The test of
unfitness is whether the accused will be able to comprehend the course of the proceedings so as to
make a proper defence.’ If the accused person raises the issue, he or she will have to prove on a balance
of probabilities that he or she was unfit to plead. If the issue is raised by the judge or prosecution, the
prosecution will have to prove the unfitness of the accused person beyond reasonable doubt.

Read also the case of MALITA BANDA V THE PEOPLE (1978) ZR 223 (SC)

The M’Naghten Rules

Section 12 of the PC is based on the M’Naghten rules. It has to be observed that that the definition of
insanity is a legal one, not a medical definition, as the House of Lords stated in the case of R v Sullivan
(1984) AC 156.

To avail oneself of the M’Naghten principles, the accused must prove on the balance of probabilities that
s/he was suffering from a defect of reason arising from a disease of mind with the result that :

1) s/he did not know the nature and quality of her act, or
2) s/he did not realize that her actions were wrong.

Four elements have been identified in the M’Naghten Rules. These are

1) burden of proof; the presumption of sanity requires the accused person to prove, on a balance
of probabilities, her or his defence as to insanity.
2) Defect of reason; the implication of defect of reason is that the disease of mind has deprived a
person from exercising the power of ordinary reasoning. This excludes situations where

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somebody acts while absent minded. This defect of reason may occur for a brief period of time.
It does not need to form an aspect of the accused character.
3) There is knowledge which consists of two aspects; that the accused did not know the nature and
quality of his or her act. This refers to the physical nature and quality of the act in question. The
second aspect is that the accused did not know that what he was doing was morally and legally
wrong.
Activity

Who bears the burden of proof in insanity cases?

Meaning of disease of mind; see the case of JOSEPH MUTAPA TOBO V THE PEOPLE (1985) ZR 158 (HC)

BRATTY V AG FOR NORTHERN IRELAND [1963] AC 386 HOUSE OF LORDS; Lord Denning held: for murder
the prosecution must prove voluntary act and malice of the accused. No act is punishable if it is done
involuntary. Automatism means an act which is done by the muscles without any control by the mind,
such as spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what
he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking.

An involuntary act does not simply mean that the doer does not remember. Loss of memory afterwards
is not a defence. Nor is an act to be regarded as involuntary act simply because the doer could not
control his impulse to do it. The statement ‘I could not help myself is not a defence when a man is
charged with murder in itself though it may work as a defence in diminished responsibility.

Again, if the involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity,
but not to a defence of automatism. Suppose a crime is committed by a man in a state of automatism or
clouded consciousness due to recurrent disease of the mind. Such an act is no doubt involuntary, but it
does not give rise to an unqualified acquittal, for that would mean that he would be let at large to do it
again. The only proper verdict is one which ensures that the person who suffers from the disease is kept
secure in a hospital so as not to be a danger to himself and others. That is the verdict of guilty but
insane. This case also stated that it is not only up to the defence to raise the defence of insanity but even
the prosecution can do that because it is there duty not to allow an insane person to be at large.

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3.4 DIMINISHED RESPONSIBILITY

You find it in section 12 A of the Penal Code. It can only use this defence in murder cases and when it
succeeds the sentence will just be reduced to manslaughter. This defence does not lead to an acquittal.

What does section 12A say?

Section 12 A

1) where a person kills or is a party to the killing of another, he shall not be convicted of murder if
he was suffering from such abnormality of mind (whether arising from a condition of arrested or
retarded development of mind or any inherent causes or is induced by disease or injury) which
has substantially impaired his mental responsibility for his acts or omissions in doing or being
party to the killing.
2) The provisions of subsection (2) of section thirteen shall apply with necessary modifications to
the defence of diminished responsibility under this section: provided that the transient effect of
intoxication as described in that subsection shall be deemed not to amount to disease or injury
for purposes of this section.
3) On a charge of murder, it shall be for the defence to prove the defence of diminished
responsibility and the burden of proof shall be on a balance of probabilities.
4) Where the defence of diminished responsibility is proved in accordance with this section, a
person charged with murder shall be liable to be convicted of manslaughter or any other offence
which is less than murder.

This defence of diminished responsibility is intended to provide a partial excuse for the mental
disordered offenders who could not be dealt with under Section 12. It was created in England by the
Homicide Act, 1957 to provide a partial excuse.

Activity

Can the defence of diminished responsibility be used in attempted murder?

For this defence to be accepted by the courts, three elements must be proved:

1) abnormality of the mind

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2) caused by arrested development, retardedness or disease.

3) Substantial impairment of responsibility

What constitutes the abnormality of the mind is not clear. Courts have offered certain definitions but
these are not clear. Post natal stress or premenstrual stress can also be treated as ‘abnormality of mind’.
An accused person who commits an offence while overwhelmed by depression, or post-traumatic effects
of rape and assault, could be availed the defence of diminished responsibility due to abnormality of
mind caused by depression. Lord Packer, CJ in R v Byrne (1960) 3 All ER 1 held that abnormality of mind
means a state of mind so different from that of ordinary human beings that the reasonable man would
term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not
only the perception of physical acts and matters, and the ability to form a rational judgment as to
whether an act is right or wrong, but also the ability to exercise will power to control his physical acts in
accordance with the rational judgment.

Caused by Arrested, retarded or disease;

This must result from one of the conditions or causes mentioned in section 12 A(1). In order to establish
that abnormality of mind of the accused was due to any one of the causes referred to, medical evidence
is needed. This requirement is critical because it limits the scope of the defence of diminished
responsibility.

Substantial Impairment of responsibility;

Substantial impairment of responsibility’ appears to suggest that at least two requirements must be
satisfied;

i) that the abnormality of mind had substantial effect on the accused capacity of
judgment, understanding, or control, and
ii) such a condition reduces in a substantial way, the accused’s responsibility with the
result that the accused criminal liability is reduced.

What constitutes ‘substantial impairment is a matter of fact which must be proved in court. As it was
stated in the case of R v Llyod (1967) 1 ALL ER 107, for the impairment of an accused’s mental faculties,
that impairment ‘must be more than trivial or minimal’. Whether it is a question of abnormality of mind

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or the extent of the substantial impairment, medical evidence is required in support of the defence
pleaded. The defence of diminished responsibility is to be raised by the defence and to be supported by
it to the satisfaction of the court. Where this is not raised by the defence, the judge may alert the
defence to avail themselves to the defence.

Activity

Differentiate the defence of insanity with that of diminished responsibility

3.5 CONSENT
Consent as a defence may be explicit or implicit. It means that the offence is expressly defined as
requiring an absence of consent. The validity or invalidity of the victim’s consent will be measured
against the degree of harm. Euthanasia is unlawful and any person who deliberately kills another, even
though the victim consents; a cancer patient who is in unbearable pain and terminally ill, will be guilty of
murder. Anyone who causes bodily harm to another will not escape criminal liability. However, a
husband who branded his initials on the buttocks of his wife at her request, using a hot knife, was not
guilty of assault occasioning actual bodily harm. This was an exception to the rule. Another exception is
participation in sports.

What are the Limits of consent

Even consent given by adults resulting in serious harm, that consent will be considered as invalid and
criminal liability will be imposed. S. 236 of the PC states that consent by a person to the causing of his
own death or his own maim does not affect the criminal responsibility of any person by whom such
death or maim is caused. In specific cases, e.g infancy, mental incapacity or duress or fraud, a consent
which would otherwise prevent criminal liability is treated by law as invalid.

When consent is procured by threats, or fraud as to the identity of the accused or as to the

nature of the act, the rule is that such a consent is immaterial, and criminal liability will be imposed.

Activity

What are the requirements of consent?

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3.6 SELF DEFENCE

Self defence entails the use of force or violence in order to repel the attack or prevent the crime and so
on. It is the accused person to raise the defence and the task of the prosecution to prove beyond
reasonable doubt that the conduct of the accused person was not justifiable or lawful, under the
circumstances. Where the prosecution is unable to prove that the violence or force used was not
unjustifiable, the accused is to be acquitted. The law regulates the use of violence or force by the victim
of an unlawful attack and insists that violence or force must be reasonable.

s.17 of the PC; subject to any other provisions of this code or any other law for the time being in force, a
person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his
property, or the person or property of any other person, if the means he uses and the degree of force he
employs in doing so are no more than is necessary in the circumstances to repel the unlawful attack. The
PC permits any person to use reasonable force

i) to defend himself from any attack

ii) to protect (or defend) his property.

iii) to defend another person from being attacked. R v Duffy; The appellants sister was
fighting. It was the appellant’s case that she went to rescue her sister and that the
fight was justifiable as self defence. Court held that the defence of self-defence is
not open to the sister. There was no suggestion whatever that she personally was
attacked and that it is my direction to you to approach this case on the footing that it
is no defence to say she was going to the assistance of her sister. According to the
appellant court, the trial court was wrong. It should have been left to them to say
whether, in view of the appellant’s proved conduct, such a defence could possibly be
true, they being directed that the intervener is permitted to do only what is
necessary and reasonable in all the circumstances for the purpose of the rescue.
iv) To protect property of another person.
v) And to prevent crime.
It is important to note that a person must use reasonable force to protect a person.

There are two requirements for reasonable force:

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i) Force must be necessary

ii) Force must be reasonable to repel the attack

Proportionate means that it was reasonable to use that kind of force to repel the attack. The test is
objective and depends on whether a reasonable person would have used such force in the
circumstances as perceived by the victim of the aggression.

Imminence of the attack; such use of force in self defence must be justified by the imminence of the
unlawful attack. The idea of immanency or immediacy of an unlawful attack is that the defender had not
time to call police or to lock his door against the burglars or escape before being attacked.

ELISHA MALUME TEMBO V THE PEOPLE (1980) ZR 209 (SC)

It was held that the shooting of the deceased was a use of force wholly out of proportion to the
necessities of the situation, that the shooting was not done by way of self-defence nor by way of
defensive action of his property, nor was it reasonable for the purpose of preventing theft of his property
or of apprehending the deceased. Court held that in most cases it would be proper to state that an
actual assault upon a dwelling-house by the breaking of a window or other such manifestation of force
would give rise to a reasonable fear on the part of the occupants that the intruders were likely to be
armed robbers against whom the use of arms in self-defence would be justified.

Duty to retreat?

In earlier cases, such a duty was emphasized. But it has now been refashioned as a duty to demonstrate
an unwillingness to fight. It seems that nowadays, such a duty is not strictly followed by the courts.
Although there is also an exception to this duty; the exception is where a person is attacked at home.
Here the defender has no duty to withdraw.

See the case of The People v Mudewa (1973) ZR 147; Court held; when a man is the object of a
murderous assault it is too much to expect a nice discrimination in the methods he chooses to defend
himself. In calm retrospect other alternatives may appear, but it must always be remembered that, in
such circumstances, a man acts under the stress of the moment. He had to act swiftly and decisively and
the reasonableness of the course he adopts must be judged accordingly. The obligation on a man so
assailed to retreat rather than to strike down his assailant is not absolute. If by retreating he enhances

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rather than avoids the danger to himself, and it is easy to envisage circumstances in which this would be
the case, it would be reasonable to expect him to retreat.

See the case of R v Bird [1985] 1 WLR 816 court of Appeal

Activity

Mention some instances where one can use self defence?

3.7 MISTAKE AND INTOXICATION

Mistake;

If one claims that X killed Z mistaking him for a ghost that had haunted the villagers; in effect what is
being claimed is that because X’s mistake about the circumstances in which X acted, X did not have the
mens rea required for killing Z and he could not be convicted for that crime. X has the defence of
mistake.

See s10 of the Penal Code.

What about mistake or ignorance of the law?

Ignorance of the law is no excuse. In a certain case, the person was convicted of committing buggery
while on board a ship docked in an English port. Such conduct was not an offence within the Ottoman
Empire. His argument was that he had no knowledge that buggery was an offence in England. He was
convicted.

In the case of Williams [1987] 3 All ER 411 the accused believed that a person was being attacked by X.
In fact X was arresting him lawfully. It was said by the court of Appeal that the accused was to be judged
on the facts as he believed them to be.

Activity

Prince is a drug addict who is in Zambia for a holiday. He is from a jurisdiction where smoking marijuana
is illegal and he assumes smoking marijuana is also legal in Zambia. He is charged with possession of
marijuana. Does he have a defence?

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IN TOXICATION

According to s 13 of the PC, intoxication shall not constitute a defence to any criminal charge. Therefore
in Zambia as a rule, Voluntary intoxication is not a defence, but there are exceptions. Where a person
does not realize that what he is doing is wrong (M,Naghten rules), or the offence charged is an offence of
specific intent and the intoxication prevents the accused person from having the necessary specific
intent.

Therefore voluntary intoxication could be a defence to offences of specific intent and not to offences of
basic intent. Specific intent offences include murder, attempt, theft, robbery, burglary etc. Basic intent
offences include assault, manslaughter etc.

Activity

What is the general rule in intoxication? When can it be used as a defence?

DURESS; except as provided in this section, a person shall not be guilty of an offence if he does omit to
do any act under duress. The requirements are that the harm threatened was death and that the threat
would be carried out immediately or before he could have any real opportunity to seek official
protection, if he did not do or omit to do the act in question. The test is both subjective and objective.
Subjective in that X acted the way he did because of the threats, he reasonably believed the threat to be
real and might be carried forthwith if he refused to act, and objective test, this measures the reaction of
the accused person against the standard of the average reasonable person and a person of reasonable
firmness sharing the characteristics of the accused problem.

See the case of R v Graham (1982) 1 WLR 294 Court of Appeal

Activity

When can one rely upon the defence of duress and succeed?

4. PROVOCATION
If a person killed another person in the ‘heat of passion’, whilst he is not the master of himself, due to
things done or said or both and subject to certain requirements, that is, he is said to have committed an
unlawful homicide: having performed the actus reus with the necessary mens rea. The defendant can

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raise the defence of provocation. A successful plea will entitle him to be convicted of manslaughter only
(s. 2005 of the PC). Provocation is therefore a defence to murder only. But it is not a defence to
attempted murder nor to other criminal offences. In offences other than murder, provocation is taken
into account at the sentencing stage. The defendant cannot plead provocation, unless he can show that
he killed because he was provoked, and that at the time of the offence, he lost self-control.

According to the PC, section 205 (1) when a person who unlawfully kills another under circumstances
which, but for the provisions of this section, would constitute murder, does the act which causes death
in the heat of passion, caused by sudden provocation as hereinafter defined, and before there is time for
his passion to cool, he is guilty of manslaughter only. Subsection 2; the provisions of this section shall not
apply unless the court is satisfied that the act which causes death bears reasonable relationship to the
provocation.

According to s206(1) the term provocation means and includes, except as hereinafter stated, any
wrongful act or insult of such nature as to be likely, when done or offered to an ordinary person, or in
the presence of an ordinary person to another person who is under his immediate care, or to whom he
stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to
deprive him of the power of self-control and to induce him to assault the person by whom the act or
insult is done or offered. For the purposes of this section, ‘an ordinary person’ shall mean an ordinary
person of the community to which the accused belongs.

What about a lawful act, can it be provocation? No a lawful act cannot be said to be provocation to any
person.

What are the requirements of provocation:

i) sudden provocation conduct causing

ii) actual loss of self-control by the accused
iii) That the act which causes death bears a reasonable relationship to the provocative act
which was done to the defendant.

MUTOPA V THE PEOPLE (1976) ZR 212 (SC); the appellant was convicted of murder, the allegation being
that he stabbed the deceased with a spear and inflicted injuries from which he died. He did not deny the
stabbing but said he was taunted by the deceased he was saying that he was sexually impotent. He

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stated that on the day of the homicide, the deceased asked him why he was building a house when he
had no wife and taunted him that he had repeatedly advised the appellant to get some medicine so that
he could get married. But the prosecution has a different story saying that on the day of murder they
were sitted on the verandah eating nshima and drinking beer when the accused passed by. The invited
him to come and join them which he did. Later on, the accused left and went to get a spear. The appeal
was dismissed.

Loss of self-control’ ROSALYN ZULU V THE PEOPLE (1981) ZR 342 (SC)

The deceased used to use violence against the appellant. On this particular day she found a letter from
his girlfriend. She confronted him and she threw it in her face. After that he went to the bathroom after
threatening her with a gun which he put on the cistern. He called her to the bathroom, she found him
naked but with soap on his face. The deceased made an attempt to get the gun from the cistern and on
seeing this she thought he was going to kill her so she rushed for the gun and shot him. Court held that
the immediate attempt by the deceased to seize the gun when the appellant had seize the gun when the
appellant entered the bathroom was itself an act of grave provocation. Case was reduced from murder
to manslaughter.

CUMULATIVE PROVOCATION: ESTHER MWIIMBE V THE PEOPLE SUPREME COURT (1986) ZR 15

The husband used to abuse the accused. On this particular day she was waiting for him to come home
because he did not have the house keys. He came in through the bathroom window and surprised her.
He then told her to prepare some food for him which would be her last cooking. She did that. They then
went to the bedroom and then took the hammer and the pounding stick from underneath the bed
threatening her. He then told her that he was having a lot of problems but also said that he has stopped
ill treating her. She was then told to go and lock the doors. Before going back to the bedroom she went
to the kitchen and took some cooking oil in a big pot. She went with it to the bedroom and poured it on
him. He died after a few days. The defence urged for provocation and self defence but the court held
that it was not a matter of self-defence. According to the evidence, she poured cooking oil on him while
he was asleep. Provocation was also refused as a defence. The requirement of provocation is that there
should be an act of provocation, the loss of self-control, both actual and reasonable, and the retaliation
proportionate to the provocation. All three elements must be present before the defence is available.
The court agreed that there was nothing in the evidence to suggest that the appellant suffered sudden
or any provocation by reason of any of the factors put forward.

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Confession of adultery, is it a ground for provocation? KALINDA V THE PEOPLE (1966) ZR 29 (CA)

Appellant was convicted of murder. His defence was insanity and sudden provocation. on appeal he
relied mostly on insanity but the court considered that the question of sudden provocation should also
be argued and gave leave for this to be done. The facts of the case were that the appellant had been
living happily with his wife for many years. Early in 1964 his wife had started running around with other
men. This caused the appellant who was a church elder and headmaster, very great distress. His wife
used to tell him that she had affairs. In consequence of her behaviour the appellant had taken to locking
his wife in his house, blocking up the windows and guarding the house, by walking round it or sitting it
armed with a shotgun. On this particular day he found his wife packing. She told him that she was
leaving him and taking all the children. The appellant shot her. The appeal was allowed.

Activity

Chilumbi and Mutinta are a couple. Mutinta has been having an extra-marital affair for over two years
now. When Chilumbi finds out about the affair he is so upset but after a few days Mutinta asks for
forgive and things seem to return to normal. After about a one, Chilumbi sees a text from Mutinta’s
lover which confirms that the affair is not yet over. He takes a gun and shoots his wife in the head.
Mutinta dies immediately. Does Chilumbi have a defence?

5. PRELIMINARY OFFENCES
The goal of this unit is to enable you demonstrate an understanding of crimes which are not fully
complete per se.

Objectives:

After reading this unit, you should be able to show an understanding and be able to critiques the
following:

 Attempts
 Impossibility
 conspiracy

The law intervenes to punish persons who have not (yet) committed an offence. The crimes which
penalize conduct before the commission of the (full and substantive) crime are called inchoate or

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preliminary offences. An inchoate offence cannot be committed in the absence of one of the elements of
crime. That is to say, the guilty mind needs to be accompanied by an actus reus. Mulenga must be held
liable for attempted murder, if he, without any excuse or justification, shoots at Z, but misses.

5.1 Attempt

The law of attempt penalizes any person for doing something with intent to commit an offence. Its
purpose is to criminalise conduct before the full offence has taken place. The accused person must have
done something more than merely preparatory in committing the full offence. The law of attempt
requires the proof of both the actus reus and mens rea of the offence charged.

S 389(1) of the PC states that when a person, intending to commit an offence, begins to put his intention
into execution by means adapted to its fulfillment, and manifests his intention to such an extent as to
commit the offence, he is deemed to attempt to commit the offence. S 389(2) it is immaterial, except as
far as regards punishment, whether the offender does all that is necessary on his part for completing the
commission of the offence, or whether the complete fulfilment of his intention is prevented by
circumstances independent of his will, or whether he desists of his own motion from the further
prosecution of his intention. Even though it is impossible to commit that offence the offender will still be
liable.

Actus reus; the law of attempt will not intervene to penalize an offender for attempting to commit an
offence until he or she has begun to put into execution his or her intention by the taking of concrete
steps in committing the offence. The offender does not have to do the last act. But she or he has to do
something more than ‘merely preparatory’.

Mens rea: the accused person must intend to commit the offence claimed to have been attempted;
‘intending to commit an offence’ is the wording of s. 389 (1). The meaning of this is that the prosecution
must prove specific intent: that is the accused person intends to bring about the commission of the
offence alleged to have been attempted, ‘no matter whether the accused desired that consequences of
her or his act or not.’ Intention to commit an offence of attempt includes foresight by the accused
person.

Activity

Bubala intends to poison Kanyembo. He puts poison in Kanyembo’s drink but Kanyembo does not die of

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poison instead he dies of a heart attack. What can Bubala be charged and convicted of?

5.2 Impossibility:
At common law, if the full offence was impossible to commit, there would not be any criminal liability.
The PC in s 389(2) and 389(3) has ruled out impossibility as a defence. In the first place, it is provided
that the complete fulfilment of his intention is ‘prevented by circumstances independent of his will’,
nevertheless, he is liable for the offence which is alleged to have attempted. Secondly, in case ‘he desists
of his own motion’, still he will criminally be liable. Thirdly, where it is impossible to commit the offence
due to the existence of ‘circumstances not know’ to the accused person. All these seem to eliminate the
defence of impossibility.

5.3 Conspiracy;
It is an agreement by two or more to do an unlawful act to or do a lawful act in an unlawful way.
Therefore, conspiracy is an agreement between two or more persons to commit a criminal offence. The
law of conspiracy punishes offenders before any full offence has been committed.

What does the law say? S 394 states that any person who conspires with another to commit any felony,
or to do any act in any part of the world which if done in Zambia would be a felony, and which is an
offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is
liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest
punishment to which a person convicted of the felony in question is liable is less than imprisonment for
seven years, then to such lesser punishment.

Requirements

i) two or more persons conspiring to commit an offence,

ii) intention to effect the unlawful purpose,
iii) agreement to carry out the unlawful purpose,
iv) the act may be done in any part of the world.

Two most important things to note are that any person who joined after the initial agreement was
concluded will be treated in similar way as those who conducted the agreement in the first place. Those

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other parties to the agreement need not know the identity of the other conspirators, but they should be
in communication with at least one of the others.

Actus reus; an agreement is a required element of the actus reus. this may be in words, writing or
action. The agreement must be communicated to the other party or parties. The parties to the
agreement must have reached a definite conclusion regarding the offence to be committed, not just at
the stage of considering the possibility of committing a crime. This is according to the case of O’Brien
(1974) 59 Cr App R 222. It is not necessary that all the parties should play an active role in the
commission of the offence.

Mens rea: the mens rea is the intention to play a role in the concluded agreement, to effect the unlawful
purpose. The accused must have a mens rea for the offence they intend to commit. For example, in the
offence of murder, they must have the necessary malice aforethought of that offence, but an intention to
cause grievous harm is not sufficient.

Conspiracy: Yip Chiu- cheung v The Queen;

D had been convicted of conspiracy to traffic in heroin contrary to common law and to section 4 of the
Dangerous Drugs Ordinance. The conspiracy concerned an agreement between D and N, an American
undercover drug enforcement agent, that they would meet in Hong Kong where he would receive from
him the supply of heroin which N would take to Australia. The authorities were aware of the plan and
had agreed not to prevent N proceeding to Australia as his aim was to identify the others in the drug
ring. N however, missed his flight to Hong Kong and the plan was abandoned. D argued on appeal that N
could not be a co-conspirator as he lacked the necessary mens rea for consipiracy. Court held, the facts
of the present case are quite different. Nobody can doubt that Neeham was acting courageously and
with the best of motives, he was trying to break a drug ring. But equally there can be no doubt that the
method he chose and in which the police in Hong Kong acquiesced involved the commission of the
criminal offence of trafficking in drugs by exporting heroin from Hong Kong without a licence. Needham
intended to commit that offence by carrying the heroin through the customs and on the aeroplane
bound for Australia. Neither the police, nor customs, nor any other member of the executive have any
power to alter the terms of the Ordinance forbidding the export of heroin, and the fact that they may
turn a blind eye when the heroin is exported does not prevent it from being a criminal offence.

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6. PARTICIPATION IN AN OFFENCE
The goal of this unit is to enable you demonstrate an understanding of participation in crimes

Objectives:

After reading this unit, you should be able to show an understanding of this offence.

Principal and secondary offenders:

Modes of Participation

When two or more persons take part in the commission of an offence, they are regarded as jointly
participating in effecting the commission of the offence. They are described as parties to the offence.
They may be some differences, in degree only, in the role each party played in bringing about the
prohibited consequences. The concern of criminal law is to assess the role of the parties and to
determine the proper scope of criminal liability. According to s 21 of the PC;

1) when an offence is committed, each of the following persons is deemed to have taken part in
committing the offence and to be guilty of the offence, and may be charged with actually
committing it, that is to say:
a) every person who actually does the act or makes the omission which constitutes the offence;
b) every person who does or omits to do any act for the purpose of enabling or aiding another
person to commit the offence;
c) every person who aids or abets another person in committing the offence;
d) any person who counsels or procures any other person to commit the offence;
2) In the case of paragraph (d) of subjection (1), such person may be charged either with
committing the offence or with counselling or procuring its commission. A conviction of
counselling or procuring the commission of an offence entails the same consequence in all
respects as a conviction of committing the offence. Any person who procures another to do or
omit to do any act of such a nature that, if he had himself done the act or made the omission,
the act or omission would have constituted an offence on his part, is guilty of an offence of the
same kind and is liable to the same punishment, as if he had himself done the act or made the
omission; and he may be charged with doing the act or making the omission.

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In R v Grundy (1989) Crim. LR 502 (CA); X and Z were beating up S, a police officer on the stairs of an
Indian restaurant. T joined in after a few seconds. The officer suffered a broken nose and other injuries.
All there were charged. T was convicted of aiding that offence.

The decision of the court was that the whole of the injuries suffered by the police officer amounted to
grievous bodily harm. That T was aiding (assisting) the commission of the offence as soon as he joined in.
That it was irrelevant at what stage he joined in beating up S. X and Z were the perpetrators of the
offence, or accessory to the injuries other than the broken nose. In the above case X and Z, who inflicted
the injuries on the police officer, were joint principals. They committed the actus reus. T, who joined a
few minutes later, was the secondary party or accessory.

Principal offender: he is a person whose act is the most immediate cause of the commission of the
offence.

Secondary parties; A secondary party is that person who aids, abets, counsels or procures the
commission of an offence. He or she is liable to be charged, tried, convicted and punished as a principal
offender. There is diversity of opinion in respect of the meaning of the words: aid, abet, counsel or
procure. The court of appeal in the Attorney General’s Reference (No. 1 of 1975) (1975) QB 773 at 779
held that ‘if four words are employed here ‘aid, abet, counsel, or procure’, the probability is that there is
a difference between each of those words’, is considered to be correct. The liability of the accessory is
not only dependent on the existence of a casual link between the accessory’s and the principal’s act. In
offences involving ‘procure’, the link must be established in case the principal has a defence. The
accessory also must have mens rea in relation to the crime committed by the principal.

6.1 SECONDARY PARTIES WHO ASSIST OR ENCOURAGE THE COMMISSION OF

OFFENCE
The principal is the person who commits the offence. Unless there is evidence to the contrary she or he
shall be convicted of that offence. The secondary party is the one who in a number of ways facilitate the
commission by the principal of the offence charged. The secondary [party aids, abets, counsels or
procures the commission of whatever offence is charged. ALIMON NJOVU AND FELIX NJOVU V THE
PEOPLE (1988) ZR 5 SUPREME COURT; the appellants were convicted of murder , the particulars of the
offence being that they, together with others, on the 17 March 1984 at Lusaka, jointly and whilst acting

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together , did murder Emmanuel Mulenshi. The prosecution evidence was to the effect that both
appellants took part in concerted robbery and store-breaking at Vintage Zambia Limited and there they
murdered the night watch man and stole a quantity of goods including in particular one welding
machine. The evidence against both appellants was that they were in possession of the welding machine
after the robbery and in connection with a charge of murder both appellants made statements to the
police to the effect that they were present when the night-watchman was assaulted. In view of what we
have said the appeals of both appellants against the convictions of murder are allowed.

Aids: it would appear to mean that the secondary party gives assistance to the principal in the
commission of the offence. The giving of assistance may be before or at the time of the commission of
the offence. It also suggests that the giver of the assistance may or may not be present at the
commission of the offence.

Abets: it means to incite, instigate, to encourage the commission of the offence. Abetting the
commission of the crime should mean encouraging the commission of the crime at the time it is
committed. If it entails encouragement before the time of the commission it may be preferable to use
the world aid.

Counsel: it should be understood to mean to advise, to solicit, to encourage, to excite. Counselling

occurs before the commission of the offence.

Procures: it may mean causing the commission of the offence or bringing about its commission. There
must be a casual relationship between the secondary party’s act and those of the principal. ATTORNEY
GENERAL’S REFERENCE (No. 1 OF 1975) [1975] QB 773, To procure means to produce by endeavour. You
procure a thing by setting out to see that it happens and taking the appropriate steps to produce that
happening. We think that there are plenty of instances in which a person may be said to procure the
commission of a crime by another even though there is no sort of conspiracy between the two, even
though there is no attempt at agreement or discussion as to the form which the offence should take. In
our judgment the offence described in this reference is such a case… The second thing which is
important is that the facts set out in our reference is that, following and in consequence of the
introduction of the extra alcohol, the friend drove with an excess quantity of alcohol in his blood.
Causation here is important. You cannot procure an offence unless there is a casual link between what
you do and the commission of the offence.

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According to Smith and Hogan: aiding the commission of an offence requires actual assistance. It does
not require consensus nor causation.

Whereas abetting or counselling; consensus is implied, but causation is not.

In procuring; it implies causation but it may not imply consensus.

MOHAN V R [1967] 2 AC PRIVY COUNCIL; D was quarrelling with M, when R, who was D’s father, run out
of his house and attacked M with a cutlass. While R was chasing M, D went off and returned with
another cutlass. Both struck many blows at M, who collapsed and later died. He was found to be
wounded in the back and in the leg. It appeared that death was caused only by the leg wound. D and R
were convicted of murder and appealed on the ground that, as there was no evidence of pre-arranged
plan to attack M, the crown must show which of the two struck the fatal blow. Appeals dismissed.

6.2 GIVING ASSISTANCE OR ENCOURAGEMENT

In order to be charged and convicted as an accessory, an accused person must have given assistance or
encouragement (let alone procure) in the commission of an offence. Assistance or encouragement may
take different forms. R v Clarkson [1971] 1 WLR 1402, the accused was charged with aiding and abetting
three offences of rape. The evidence was that the accused, who had been drinking heavily, heard a
disturbance in a room. They went in and stood watching whilst a woman was raped. They gave neither
physical assistance nor verbal encouragement. They were convicted and they appealed. it was held
encouragement does of necessity amount to aiding and abetting, it may be intentional or unintentional,
a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures,
or by his silence, or non-interference or he may encourage intentionally by expressions, or gestures, or
actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is
not a criminal offence to stand by, a mere passive spectator of a crime, even of murder. Non-interference
to prevent a crime is not itself a crime. It is not enough, then, that the presence of the accused has, in
fact, given encouragement. It must be proved that the accused intended to give encouragement; that he
wilfully encouraged.

THORNTON V MITCHELL [1940] 1 ALL ER 339; the bus driver reversed his bus according to the signals of
the conductor, who failed to notice some persons standing behind the bus. The driver could not possibly
see behind the bus and had to rely on the signals of the conduct. The person standing behind the bus

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was injured. The driver was charged with careless driving, and the conductor with aiding and abetting,
counseling and procuring the commission of that offence. The charge against the driver was dismissed,
but the conductor was convicted. He appealed. It was held in order to convict, it would be necessary to
show that the respondent was aiding and abetting the principal, but a person cannot aid another in
doing something which that other has not done.

Associated with assistance or encouragement is the issue of presence at the commission of the crime or
failure to act to prevent its commission. The general rule is that a person cannot become an accessory
merely because he fails to act to prevent an offence he witnessed. Two exceptions to this general are;

i) where the accessory has the right of control over the action of the principal which he
deliberately fails to exercise; for example were a pub owner stood and watched his
customers drinking after hours.
ii) where the criminal law imposes a duty on someone to act and that person deliberately fails
to act. For example in the case of Gibson and Gibson (1984) 80 Cr. App.R 24 (CA.
6.3 GENERAL LIABILITY OF SECONDARY PARTIES;
Generally, secondary parties’ liability is dependent on certain requirements; where the principal and the
secondary party are liable for different offences. It is possible to convict the principal of murder and the
accessory for aiding or encouraging only manslaughter and the converse may also be possible,
depending on whether they have an intention to kill the victim.

The principal may be exempted from prosecution. In Austin (1981) All ER 374 (CA), the defendants were
convicted of aiding and abetting the offence of child stealing contrary to section 56 of the Offences
Against the Person Act, 1861 (since repealed). The child was snatched by the father (with the assistance
of the accused) from the lawful custody of his estranged wife. Under the statute the father could not be
prosecuted. On appeal, the court held that this did not prevent the father from committing the offence,
but merely from being prosecuted for such commission. As such the accessory was found guilty of aiding
and abetting the theft of a child. Where the principal is not liable because she or he has a defence, the
secondary party will be liable of aiding and abetting the offence (the existence of any defence will
absolve the perpetrator, but the accessory will be convicted).

What is the mens rea?

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The mens rea needed for the liability of secondary parties is as follows; an intention to assist or
encourage the commission of the principal offence combined with knowledge of the circumstances
which constitute the offence.

In respect to procure, the secondary party must intend, by her or his acts, to bring about the commission
of the offence.
Activity
Can the accessory be convicted of an offence if the principal has been acquicted?

7. JOINT UNLAWFUL ENTERPRISE

The goal of this unit is to enable you demonstrate an understanding of common enterprise offences

Objectives:

After reading this unit, you should be able to show an understanding and be able to critique common
purpose offences

According to S22 of the PC, when two or more persons form a common intention to prosecute an
unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is
committed of such a nature that its commission was a probable consequence of prosecution of such
purpose, each of them is deemed to have committed the offence.

The basic characteristic of a joint unlawful enterprise is that the venture must be undertaken by two or
more persons. Their purpose, which is secured by an agreement prior to or at time of the commission of
the offence, is to carry out a common purpose, common intention, common design , or a joint venture or
enterprise. In this sort of joint unlawful enterprise, a secondary party is liable for offences committed by
the principal in carrying out that purpose, even unforeseen ones (known as ‘collateral offences). The
secondary party is guilty irrespective of the actual part she or he played in the joint venture. This means
that where a member of an unlawful enterprise causes death, members of the joint venture can also be
found guilty of murder even though the actus reus of murder could not be attributed to them. All of
them will be liable for whatever offences the others commit or may commit which fall within the scope
of the common purpose.

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7.1 OFFENCES OUTSIDE THE COMMON PURPOSE

a) Common purpose; when the principal offender deliberately acts contrary to the purpose
of the joint enterprise, the accessory will not normally be liable. Because the principal
committed an offence which is outside the scope of the joint enterprise. In Davies v DPP
(1954) 1 All ER 507 (HL), X was a party to a group of gangs fighting against other gangs.
The fight ended with one of the gang on the other side being stabbed to death by Z who
was carrying a knife unknown to X. It was held that X was not an accessory to
manslaughter because he did not know that Z was carrying a knife.
b) If the other party did not foresee that there was going to be a possible departure.
c) Unforeseen ‘fundamental different’ acts;

Mutambo & 5 Others v. The Peopl;e (1965) ZR 15; It was held that the formation of the common purpose
does not have to be by express agreement or otherwise premeditated; it is sufficient if two or more
persons join together in the prosecution of a purpose which is common to him and others, and does so
with the intention of participating in that prosecution with the other.

Winfred Sakala v The People (1987) ZR 23 Supreme Court; the appellant was sentenced to undergo
fifteen years imprisonment with hard labour for aggravated robbery. The particulars being that on 1
October 1989, at Katete, he with two other persons unknown robbed the Eastern Cooperative Union of
the money set out in the charge, after using or threatening to use actual violence to Isaac Banda, who
was The evidence from the appellant himself was that the purpose of the exercise was to cover up the
earlier theft by making it appear that the money stolen earlier had been stolen during a break-in at the
premises. It was therefore necessary in order to put this plan into effect, to gain access to the premises
whether or not the night watchman resisted. Therefore although the appellant may well have been told
that no harm would be done to the watchman, he must have realized that at least threats and possible
some force such as tying up would have to be used against the watchman if he discovered the intruders.
This would have amounted to aggravated robbery and was within the contemplation of the appellant.
Appeal dismissed.

Scope of the common purpose; see the case of Maxwell v DPP for Northern Ireland [1978] 1 WLR 1350
House of Lords.

Fundamentally different acts;

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R v Slack [1989] 3 All ER 90. S and B were burgling the flat of an old lady. S passed B a knife ‘to threaten
the old lady with if she starts screaming.’ While S was out of the room, B cut her throat. S was convicted
of murder and appealed. According to the defence, although he may be guilty of robbery, he should not
be guilty of murder. Two questions were asked; the first one did the accused intend to kill or cause
grievous bodily harm to Mrs. Crowder and the second one, did the accused contemplate and foresee
that B might kill or cause grievous bodily harm to the lady as part of their joint enterprise and did she die
as a result of such conduct by B? If so that is open to you to find that he so intended and that he is guilty
of murder.

It is the second question that objection is taken, on the ground that it wrongly equates foresight and
contemplation with intent.

The appeal court held that for B to be guilty he must be proved to have lent himself to a criminal
enterprise involving the infliction, if necessary, of serious harm or death or to have had an express or
tacit understanding with A that such harm or death should, if necessary, be inflicted, the precise form of
words in which the jury are directed is not important. In our judgment the second question posed by the
judge in the instance case in his written directions to the jury was in accordance with the principles we
have endeavoured to express. The appeal is therefore dismissed.

R v English; E and W were convicted of murder of a police sergeant, V, on the basis of joint enterprise.
The court posed to the House of Lords was ‘is it sufficient for murder that the secondary party intends or
foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal
act carried out by the primary party is fundamentally different from the act foreseen or intended by the
secondary party? According to the courts, the adventurers are guilty of manslaughter when one of them
has departed completely from the concerted action of the common purpose and has suddenly formed
an intent to kill and has used a weapon and acted in a way which no party to that common design could
suspect is something which would revolt the conscience of people.

Appeal allowed.

With drawal;

R v Becerra (1975) 62 Cr. App.R 212 court of appeal; B broke into a house with C and G intending to
steal. B gave a knife to C to use if necessary on anyone interrupting them. The tenant of the upstairs flat
L came down to investigate the noise. B said, ‘there’s a bloke coming. Lets go’, and jumped out of the

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window and ran away. C stabbed L with the knife, killing him. At his trial for murder, B contended that he
had withdrawn from the joint adventure before the attack on L. The jury were directed that his words
and departure through the window were insufficient to constitute a withdrawal.

In Haonga case; It was held that there was clearly a common design to rob, but that would not suffice to
convict on murder unless the common design included the use of whatever force was necessary to
achieve the robber’s objective.

Activity

Kaluba and his friends have agreed to steal chickens from their numbers chicken run. Unknown to the
group of friends, Kaluba is carrying a gun with him. When they get into the neighbuors yard, Kaluba takes
out his gun and kills the dog. The whole group then proceeded to the chicken run. They packed about 15
chickens but when coming out of the chicken run, the owner hears some noise coming from the chicken
run. The neighbour comes running towards the chicken run. Kaluba shots at the neighbour who dies on
the spot.

8. ASSAULT AND BATTERY

Goal

The goal or aim of this unit is to enable you demonstrate an understanding of crimes which do not result
in death

Objectives

After reading this unit you should be able to show an understanding and be able to critique:

 Common assault
 Assault occasioning bodily harm
 Grievous harm
 Unlawfully wounding
 Consent as a defence

Assault and battery are two distinct crimes at common law but it is common in ordinary usage, and even
in Statutes, to use the term ‘assault’ to cover both.

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What is an assault? According to James J in the case of Fagan v MPC [1969]1 QB 439, it is any act which
intentionally or recklessly causes another person to apprehend immediate unlawful violence. What is
battery? A battery is any act by which D, intentionally or recklessly, inflicts unlawful personal violence
upon P.

The threat must be an unlawful one. This means that a threat in self-defense, preventing crime, further
arrest or lawful discipline is not assault. (Micheal Jefferson:509)

It is important to note that for battery, there must be physical contact where as for assault there is not
physical contact, just the apprehension of fear is enough. But is there is no apprehension of fear then
there is no assault (Micheal Jefferson; Criminal law p508).

8.1 Common assault

S247 of the Penal Code talks about common assault. This includes both battery and assault. Therefore
common assault in the Penal Code embodies two separate offences.

Assault

What if you are in a room with somebody and you show them a pistol in the drawer saying that you are
going to hold them hostage. It was held that there was an assault. In Smith v Superintendent of Working
Police Station (1983) 76 Cr App Rep 234, it was held that D committed an assault by looking through the
window of a bed-sitting room at P in her night-clothes, intending to frighten her and doing so. Dismissing
the appeal Judge Kerr held ‘in the present case D intended to frighten P and P was frightened. As it
seems to me, there is no need for finding that what was frightened of, which she probably could not
analyze at that moment, was some in nominate terror of some potential violence. When it comes to
assault, it is important to note one thing, there can be no assault if it is obvious to P that D is unable to
carry out his threat, for example I point a ruler at C and tell her that I am going to kill her using a ruler.
What about the case of Byrne [1968] 3 CCC 179, BC CA, where it was held that there was assault where
the appellant entered a bank with a coat over his arm and said to the cashier, ‘I’ve got a gun, give me all
your money or I’ll shoot. It was held that ‘the report does not state in what position the appellant was
holding his arm. When sentencing him the magistrate said, ‘you stimulated that you were carrying a gun
under a jacket that was draped over your arm by telling the cashier ‘i’ve got a gun, give me all your
money or I’ll shoot.

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But there may be an assault although D has no means of carrying out the threat. The question is whether
he intends to cause P to believe that he can and will carry it out and whether P does so believe. An
example is where D points an unloaded or imitation gun at P. If P knows the gun is unloaded or an
imitation, there is no assault, for then he could not be put in fear. If P believes it is, or may be a real,
loaded gun, there is an actus reus, for now he suffers the apprehension which is an essential element
of the crime. This definition has been clarified by recent decisions of the English criminal courts. The first
requirement is conduct; it includes an act, threatening words, presence in private where such presence
creates apprehension, and possibly repeated silent telephone calls. Secondly, the conduct must be
unlawful which means that consent may absolve the offender from criminal liability. Thirdly, the threat of
the application of force, or violence must be imminent.

What about a threat to inflict harm at some time in the future, can it be an assault? It is clear that a
threat to inflict harm at some time in the future cannot amount to an assault- this is because an
apprehension of immediate violence is essential.

Whether or not words may amount to an assault, the meaning of the words have to be taken into
consideration. If for example, I go to somebody’s house and point a gun at them saying if I was not a
Christian I would have killed you. Does that amount to an assault? In the case of Tuberville v Savage
91669) 1 Mod Rep 3, D laid his hand upon his sword, saying, ‘if it were not assize time I would not take
such language’. If D had said nothing, it was clear that the court would have held this to be evidence of
an assault; but ‘the declaration of D was, that he would not assault him, the judges being in town’. But
what if these words had not accompanied the act, but followed it? In this case there would have been
an assault, for the words could not undo a crime already constituted by the apprehension aroused in P.

Mens Rea

It is now clear that the mens rea of assault is an intention to cause P to apprehend immediate and
unlawful violence, or recklessness whether such apprehension be caused. The mens rea is the
intentional or reckless causing Z to apprehend the possibility of imminent violence or the immediate
application of force on her person by the accused person.

Battery

Actus reus

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This consists in the infliction of unlawful personal violence by D upon P. There may also be battery where
D inadvertently applies force to P and then wrongfully refuses to withdraw it. In Fagan (1969) 1 QB 439,
where D accidentally drove his min-car on to a constable’s foot and then intentionally left it there, the
court held that there was a continuing act, not a mere omission.

The touching a person for the purpose of engaging his attention has been held to be acceptable but
physical restraint is not.

Men rea

The element of mens rea in the offence of battery is satisfied by proof that the defendant either
intentionally or recklessly applied force to the person of another.

It is important to note that the law does not prohibit all force on the person, but only the unlawful use of
force.

Activity

Can a parent be convicted of common assault if they chastise their child?

ASSAULT CASES;

What were the facts in Attorney-General v Fred Chileshe Ngoma?

This is an appeal for an award of damages by a deputy registrar under a consent judgment for assault
and false imprisonment.

Activity

Sililo pours beer on Njavwa. What section is Sililo going to be charged with?

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8.2 ASSAULT OCCASIONING ACTUAL BODILY HARM

What does section 248 of the PC say? Any person who commits an assault occasioning actual bodily
harm is guilty of a misdemeanour and is liable to imprisonment for five years. Note that the term assault
here covers both assault and battery. The PC does not exactly define what assault occasioning actual
bodily harm means. But it includes any physical hurt or injury to the victim. Something more than a
mere contact which suffices for common battery is required. A bruise , grazes, black eyes or burns will
suffice but not spitting in the victim’s face nor pouring a glass of beer over him.

What is the actus reus of this offence? There must be an assault, which must cause actual bodily harm.

What kind of assault satisfies this offence?. It includes psychiatric injury but not merely transitory
emotions of fear, panic of hysteria caused during the assault or battery. Occasioning may be understood
as meaning causing or resulting in actual bodily harm. In the case of Chan-Fook [1994] 2 All ER 552, CA,
V, suspected of stealing the engagement ring belonging to D’s fiancée, was aggressively questioned by D,
then manhandled by D and locked in a room upstairs. The trial judge directed the jury that it sufficed for
actual bodily harm that the assault had caused in V ‘a nervous, maybe hysterical, condition’. Quashing
the conviction the court held ‘accordingly the phrase “actually bodily harm” is capable of including
psychiatric injury.

What is the mens rea?

The mens rea for section 248 is the mens rea for assault or battery. Once assault or battery is
proven, the only remaining question is one of causation- did the assault cause the actual bodily
harm? This is an objective matter.
Activity
P tries to take off W’s coat without her consent. There is a struggle between the two in that W
does not want her coat removed. W ends up with bruises on her arm. What can P be charged and
convicted with?

Kampangila v The People; the appellant was convicted of unlawfully wounding one Nickson Soikisi.
Following his conviction, the appellant was sentenced to twelve months imprisonment. He then
appealed against his conviction and sentence. Court held there can be no doubt that, on this evidence,
the prosecution have established that the complainant sustained actual bodily harm was not satisfied
that it goes far enough to establish a wound within the meaning of the definition. Abrasions can cause

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bleeding, but they might not necessarily constitute a wound. Convicted of assault occasioning actual
bodily harm

See the case of R v Venna [1975] 3 All ER 788, Court of Appeal where the appellant and others were
creating a disturbance in a public street. The police were sent for and during a scuffle which ensued as
the police sought to arrest him, the appellant kicked out with his feet. In so doing he struck the hand of
an officer and caused a fracture which resulted in his being convicted of an assault occasioning actual
bodily harm.

Appeal dismissed.

R V BROWN [1993] 2 All ER, House of Lords

Facts; the appellants belonged to a group of sado-masochistic homosexuals who willingly co-operated in
the commission of acts of violence against each other for sexual pleasure. Their activities included
whipping and canning, branding, the application of stinging needles to the genital area, inserting map
pins or fish hooks into the penis. There was no permanent injury done, no infection of the wounds and
no evidence that any of the men had sought medical treatment. Their actions were carried out in private
and there was no complaint made to the police who found out about these activities by chance when
they were investigating other matters. The appellants were convicted of assault occasioning actual bodily
harm contrary to s 47, and, in three cases, of malicious wounding contrary to s 20 of the Offences against
the Persons Act 1861.

The question whether the defence of consent should be extended to the consequences of sado-
masochistic encounters can only be decided by consideration of policy and public interest.

THEREFORE APPEAL DISMISSIED

R v Ireland; R v Burstow House of Lords [1997] AC 147

What were the facts? The appellant, Ireland, had pleaded guilty to three counts charging him with
assault occasioning actual bodily harm contrary to s 47 of the Offences Against the Person Act, 1861. The

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appellant used to make unwanted silent phone calls to three women over a period of several months.
His appeal was dismissed

8.3 GRIEVOUS HARM

S229 of the Penal Code states that any person who unlawfully does grievous harm to another is guilty of
a felony and is liable to imprisonment for seven years.

Therefore for somebody to be convicted under this section, the harm must be unlawful. What do we
understand by unlawful? The term unlawful also exonerates a person who causes grievous harm due to
consent given by a person who has capacity. The term unlawful in s 229 exonerates a person who acts in
self defence provided that the requirements of self-defence are satisfied, including the rule of
reasonable force, it also exonerates a person who causes grievous harm due to consent given by a
person who has capacity (Simon Kulusika: Text Cases and Materials on Criminal Law in Zambia,p;406)

While s 229 mentions ‘grievous harm’ rather than grievous bodily harm. It would appear that the
legislature intends to include both psychological and psychiatric harm. The absence of ‘bodily’ does not
preclude the ‘grievous harm’ to include harm inflicted on the body of the victim, such as excessive
bleeding, owing to a burst blood-vessel, broken bones, maim, permanent visible disfigurement, etc.
(Kulusika) Grievous harm may cover cases where there is no wounding, as for instance, the broken collar
bone. The PC defines grievous harm as ‘any harm which endangers life or which amounts to maim or
which seriously or permanently injures health or which is likely to injure health, or which extends to
permanent disfigurement, or internal organ, membrane or sense.’

Actus reus

There must be harm referred to as grievous or infliction of grievous harm. There must be no novus actus
intervienes. For example in terms of psychiatric harm, if I scare you so much that you develop
depression, then there will be no novus actus interviens I will be the direct cause of your condition

Mens rea

The mental element is stated to be ‘maliciously’ with a further element of state of mint; ‘intention to do
some grievous harm. Here maliciously means ‘intention or recklessness’

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When the prosecutor uses maliciously, it must be proven that a person foresaw some kind of harm
happening the complaint. But if intent is used then that means there must be the fault element. In this
case, the accused is said to have committed the offence only if the accused intends the consequences
that flow from his act.

R v Edwards (1957) R & N 107

What were the facts? The appellant was convicted on two counts of assault with intent to do some
grievous bodily harm. He appealed against the conviction.

HELD; the appellant’s intention may be inferred from his acts. Since he attacked his victim with a weapon
which had the potential to cause grievous bodily harm, then, in the absence of circumstances rebutting
such an inference, the accused may be presumed to have intended to cause grievous bodily harm. In my
opinion, if a man struck with considerable force about the head with an instrument of this description
that is an assault which is potentially likely to cause grievous bodily harm. In the absence of rebutting
circumstances, a man who struck such a blow can be assumed to have intended to inflict grievous bodily
harm upon his victim.

The court came to the conclusion that so far as assault with intent to do grievous bodily harm is
concerned, it is sufficient to prove that the accused committed the crime knowing that his act was likely
to cause grievous bodily harm and he committed it in circumstances which show that he was reckless
and careless as to whether or not such harm resulted.

In applying the law to the facts, the court held that ‘the instrument used and the fact that the blows fell
about the head of the complainant, the degree of force used and the ultimate injury satisfies the court
that the appellant has intent.

Turning to the second count, that although the instrument used was likely to cause grievous bodily harm,
she was mainly hitting on her behind which were extremely bruised but as far as the effect of the injury
was concerned, the complainant was not seriously incapacitated.

Court held if the appellant was careless as regards to whether he would inflict grievous bodily harm he
would not have hit the victim only on the behind. Therefore he should be given a benefit of a doubt as to
whether he intended to cause grievous bodily harm or not. Convicted of assault.

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TELEVISION CHIBUYE V THE PEOPLE (1978) ZR 43 (HC)

What were the facts? The appellant was convicted by the Subordinate court of the second class for the
Serenje District of doing grievous harm and was sentenced to two and half years imprisonment with
hard labour.

The complainant suffered harm to the extent that the appellant buttered her with his head in the face
and caused her to lose two of her teeth. I doubt if the loss of tow teeth constitutes ‘permanent
disfigurement’ as such; cosmetically the teeth can be replaced. As I see it however, reading the definition
as a whole, I consider that the legislature intended that the harm must be really serious harm. In setting
aside the sentence the court stated that the accused was provoked therefore the conviction of assault
occasioning actual bodily harm was substituted for s229 of the PC (grievous harm).

8.4 UNLAWFULLY WOUNDING

Section 232 states any person

a) unlawfully wounds another; or

b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing
to be administered to, or taken by, any person; is guilty of a felony and is liable to imprisonment for
3 years.

Actus reus;

There must be unlawful wounding done, caused or inflicted. But what constitutes a wound? There have
been a number of cases where particular importance has been paid to the instrument used. In order for
there to be a wound the continuity of the whole skin must be broken. But can unlawfully wounding be
committed without an assault? It is questionable whether one can say that unlawful wounding can be
committed without involving an assault. The PC provides a definition of a wound which is ‘any incision or
puncture which divides or pierces any exterior membrane of the body is not helpful of the purposes of
analysis, especially where there is need to distinguish between grievous harm and wound consequent on
the death of a victim of brutish assault. According to the case of Eisenhower, a burst of a blood-vessel in
the eye was held as not constituting a wound.

Mens rea;

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The courts will read wilfulness and malicious in the mens rea. So where somebody does an act wilfully
which results in the wound they would be convicted under this section. Others would argue that an
injury may constitute a wound and grievous harm such as injuries caused by a bullet fired by X and Z and
hitting him on his/her arm, but only breaking the outer most layer of the skin. But this according to the
case of Zakalia is not a wound because the inner layer of the skin is not broken. Therefore people argue
that the courts should relax the definition of unlawful wounding.

ZAKALIA V THE PEOPLE

The appellant and another were convicted of unlawful wounding, the allegation being that they
assaulted the complainant with an iron bar. The question for the court was whether the injuries inflicted
amounted to a wounding.

On appeal he was convicted of assault.

Activity

What constitutes a wound according to the Penal Code?

8.5 CONSENT AS A DEFENCE TO A CHARGE OF ASSAULT

What is the effect of consent? Consent negates crimes of assault and the onus of proving lack of consent
is on the prosecution.

It can be explicit or implied. For example a person who takes part in contact sport, such as football,
rugby or cricket match, impliedly and validly consents to the risk of such accidental actual bodily harm
(e.g a broken arm or leg), as can reasonably be expected because these are regarded as properly
conducted sports.(Barnes [2005] 2 All ER 113, CA.)

Consent cannot be implied if it is clear, by words or conduct, that the victim is positively not consenting
or would refuse consent if asked.(Card, Cross and Jones: Criminal lawp.189)

When can consent be invalid?

 Person lacks the capacity to consent on grounds of mental capacity, intoxication or mental
incompetence.
 The person gives consent under duress or

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 The person gives consent under a mistake

R v Wilson [1997] QB 47, CA

What were the facts? At his wife wishes, W branded his initials on the wife’s buttocks with a hot knife.
He was convicted of assault occasioning actual bodily harm.

Court held; Mrs Wilson not only consented to that which the appellant did, she instigated it. The
appellant did not actually want to cause injury to his wife but his desire was to assist her in what she
regarded as the acquisition of a desirable piece of personal adornment. The court cited the case of
Brown and held that it did not held that consent is not a defence to section 47 of the Act of 1861. The
speeches of the three Lords all refer to tattooing as being an activity which, if carried out with the
consent of an adult, does not involve an offence under section 47 .

For our part, we cannot detect any logical difference between what the appellant did and what he might
have done in the way of tattooing. The later activity apparently requires no state authorization, and the
appellant was as free to engage in it as anyone else.

Therefore appeal allowed.

HIV/AIDS
Should there be a crime on wilful infection of HIV? Some people have argued that actually there may be
two separate offences; where one who is HIV positive have sex with somebody who is not but does not
transmit the virus and where somebody who is HIV positive transmits the virus. In the first instance it is
an offence because there is an exposure and the second because the virus has been transmitted. In the
UK, there are a number of cases that have been tried and results in the convictions. But it is usually
difficult to prove unless somebody has tested before they engaged in intercourse.

In Dica 2004 QB 1257 it was held that one can validly consent to run the known risk of infection.

Activity

Kaluba is a professional footballer. Early 2014, his team was playing with another team when a member
of the opponent team stepped on his foot injuring him. Kaluba has been told that he may never be able
to play football. He is thinking of suing the person who stepped on his foot. Advise Kaluba.

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9. HOMICIDE
Goal

The goal of this unit is to enable you demonstrate an understanding of murder and manslaughter.

Objectives

After reading this unit, you should be able to understand and critique the following:

 Definition of murder
 Mens rea and actus reas of murder
 Manslaughter (voluntary and involuntary)
 Mens rea and actus reas of manslaughter

What is unlawful homicide? It is the unlawful killing of another person. So when a person unlawfully
ends another person’s life, there will be said to commit homicide. But homicide is made up of different
crimes such as murder, manslaughter, infanticide, child destruction, mercy killing and suicide.

Murder and manslaughter show the same actus reas that is causing the death of another person but the
difference between the two is that of mens rea. The distinguishing feature of murder is that the accused
person intended to kill or commit grievous bodily harm. Murder is a more serious crime than
manslaughter because to be guilty of it the accused must have intended to kill or commit grievous bodily
harm, where as a lesser state of mind suffices for involuntary manslaughter (Micheal Jefferson: p455).
Murder and voluntary manslaughter may have the same mens rea but for voluntary manslaughter the
accused did the act or omission under circumstances which the law regards as mitigating the gravity of
the offence.

How is homicide defined? It is defined in terms of one or more human beings taking the life of another
human being in circumstances not justified or excused by the criminal law.

Does the Penal Code define murder? There is no definition of murder in the Penal Code. There just have
been definitions by authors and commentators and one of them is Chief Justice Coke who defines
murder as ‘murder is when a man of sound memory and the age of discretion unlawfully killeth…any
reasonable creature in rerum natura under the King’s peace, with malice aforethought, … so as the party
wounded or hurt etc., die of the wound or hurt etc…(Micheal Jefferson: P.457)

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The expression ‘in rerum natura’ may be translated in being. This raises issues relating to foetuses, and
when an unborn child is treated as a human being or ‘in being.’ Section 208 of the PC provides that ‘a
child becomes a person capable of being killed when it has completely proceeded in a living state from
the body of its mother, whether it has breathed or not, and whether it has an independent circulation or
not, and whether the umbilical cord is severed or not.

Also according to our PC section 209; ‘ a person is not deemed to have killed another if the death of that
person does not take place within a year and a day of the cause of death. Such a period is reckoned
inclusive of the day on which the last unlawful act contributing on which the last unlawful act
contributing to the cause of death was done. When the cause of death is in part an unlawful act, and in
part an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the
last unlawful act was done or the day on which the omission ceased, whichever is the later. The case of
Dyson (1909) 1 Cr App Rep 13, CCA . The facts were that D’s daughter, Lily, was born on 6 th August 1906.
Lily was assaulted by D on 13th November 1906 (D was sentenced to six months’ imprisonment for that)
again on 29th December 1907 (D was sentenced to six months’ imprisonment for that). Lily died on 5 th
March 1908 and D was charged with manslaughter. The trial judge directed the jury that D could be
convicted of manslaughter, in effect, if Lily’s death had been caused either by the injuries inflicted in
November 1906 or those inflicted in December 1907. The Court of Appeal quashed D’s conviction for
manslaughter for which he had been sentenced to ten years imprisonment.

9.1 MURDER
Section 200 states that any person who of malice aforethought causes the death of another person by an
unlawful act or omission is guilty of murder.

Malice aforethought consists of intention on the part of the accused:

 Unlawfully to kill another human being; or

 Unlawfully to cause grievous bodily harm to another human being.

What does section 201 of the PC say? Any person convicted of murder shall be sentenced to-

a) to death; or
b) where there are extenuating circumstances, to any sentence other than death: provided that
paragraph (b) of this subsection shall not apply to murder committed in the course of aggravated
robbery with a firearm under s294.

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For the purposes of this section-

a) an extenuating circumstance is any fact associated with the offence which would diminish
morally the degree of the convicted persons’ guilty;
b) in deciding whether or not there are extenuating circumstances, the court shall consider the
standard of behaviour of an ordinary person of a class of the community to which the convicted
person belongs.

What do you understand by extenuating circumstances? Are things that are usually taken into
consideration when it comes to sentencing of the accused. Extenuating circumstances are judged on the
basis of the standard of behaviour of an ordinary person. That is therefore an objective test. According to
section 201(2), it gives the trial judge wide discretion to read any fact as extenuating circumstances and
use it to avoid the imposition of death sentence on a convicted person, provided that death was not
brought about in the course of robbery with a firearm, in which such an event the sentence is death.

While taking about murder we must first talk about causation.

9.2 CAUSATION
Where an accused is charged with a result crime, it is necessary for the prosecution to prove that his acts
or omissions caused the prohibited act.

In order to convict some body of murder there must be causation. Therefore causation needs to be
proved. Both legal and factual causation must be proved.

Factual Causation

What is the but for test? Sine qua non ? It is important to note that a person’s act cannot be the cause
of an event if the event would have occurred in precisely the same way had that act never been done. It
must be proved that, but for the accused act, the event would not have occurred. But are all acts which
are sine qua non of the event the cause of it? If I said that everybody was supposed to come to class on
Saturday and while you are crossing the road on the way to class you are hit by a car. The act would not
have happened if I did not say that there was class on Saturday. But I cannot be said to have caused the
death in law. Please see the case of R v White (1910) 2KB 124

Legal causation

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If X’s conduct (act) caused the prohibited consequence, X would be responsible for the occurrence of the
prohibited consequence. But the court must be satisfied that X’s conduct was the cause in law. (Simon
Kulusika: p112)

This can be illustrated by the case of Smith [1959] 2 QB 35 at 43, what were the facts? In the course of a
fight between soldiers of different regiments, D stabbed P twice with a bayonet. One of P’s comrades,
trying to carry P to the medical reception station, twice tripped and dropped him. At the reception
station the medical officer, who was trying to cope with a number of other cases, did not realize that one
of the wounds had pierced a lung and caused haemorrhage. He gave P treatment which, in the light of
the information regarding P’s condition available at the time of the trial, was ‘thoroughly bad and might
well have affected his chances of recovery.’ D conviction for murder was upheld and counsel’s argument,
that the court must be satisfied that the treatment was normal, and that this was abnormal was brushed
aside. It was held ‘if at the time of death the original wound is still an operating cause and a substantial
cause, then the death penalty can properly be said to be the result of the wound, albeit that some other
cause of death is also operating. Only if it can be said that the original wound is merely the setting in
which another cause operates can it be said that the death does not result from the wound. Putting it in
another way, only if second cause is so overwhelming as to make the original wound merely part of
history can it be said that death does not flow from the wound. What is the operative cause? This rule
requires the prosecution to show that the initial wound inflicted by X on Z is still the operating cause of
Z’s death even if there was bad medical treatment. The fact that factual causation is established does not
mean that legal causation can be established. For example, A shows B a job advertisement. B applies for
the job and C, the employer, invites her for the interview. On her way to the interview B is attacked by D
while walking through a park and killed. If A did not show B the interview, he would not have been killed.
In this case it is D’s acts which are the legal cause of B’s death.

Contributory causes;

We are still on causation, what are the implications? Contributory causes may be the acts of others
including the acts of the deceased himself. Contributory negligence is not a defence in criminal law,
although it may be a defence in tort.

Substantial cause; it is sometimes said that the act must be a ‘substantial ‘cause but this seems to mean
only that D’s contribution must not be so minimal that it will be ignored under the ‘de minimis’ principle.

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This means that X’ act must have been the substantial cause of the prohibited consequence. That is, the
acts of X must be significant cause or more that minimal cause of the prohibited consequence. (Kulusika:
P, 112) This is so because, killing is merely an acceleration of death and factors which produce a very
trivial acceleration will be ignored. X’s acts do not have to be the only cause or even the most important
case of the prohibited consequence. We also find the ‘take your victim as you find him rule’ under this
heading.

Intervening Acts or Events; A situation may arise where, after D has inflicted an injury on P, some other
act or event intervenes before death. D is not responsible for the death where P dies as the result of
some subsequent act or event which would have caused death in just the same way even if D had not
inflicted the injury on P.

It is not, every intervening act or omission of casual nature which will relieve D from the liability for the
subsequent death. There are three different grounds on which he might still be held to have caused the
death;

a) where the injury inflicted by D may still be ‘an operating cause and a substantial cause of P’s
death. The intervening act may be a further injury inflicted by E, not in itself mortal, but causing
death when combined with the injury inflicted by D. D and E are both guilty of homicide. If P’s
wound is treated negligently by E, or by P himself, and P dies of the ill-treated or non-treated
wound, D is liable. In the case of the People v Lewis 124 Cal 551 (1899) Sup Ct of California P,
having received a mortal gunshot wound from which he would have died within the hour, cut his
throat and died within 5 minutes. D was held liable for manslaughter on the ground that the
original wound was an operating cause. In the case of Malcherek [1981] 2 All ER 422, D inflicted
upon P injuries which resulted in brain damage. She was put on a life support machine. Some
days later, after carrying out five or the six tests for brain death prescribed by the Royal Colleges,
doctors disconnected the machine and half an hour later she was pronounced dead. The judge
withdrew the question of causation from the jury, ruling that there was no evidence on which
they could decide that D did not cause P’s death. On appeal, it was argued that there was
evidence on which the jury could have found that the doctors caused death by switching off the
machine. The appeal was dismissed. It was held that there was no doubt that the injury inflicted
by D was the operating cause and substantial cause of the death.
b) A person may die as the result of some act or event which would not have occurred but for the
act done by D and which is a natural consequence of D’s act-that is, it was foreseeable as likely to

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occur in the normal course of events. If for example you knock somebody down and leaves them
in the law class room. Then there is an earth quake which occurs and the class room falls on that
person. You will not be convicted of homicide. Why? The law attributes such a death to the Act
of God and not to the assault, even if it may be certain that the deceased would not have been
in the building at the time of the earth quake, had he not been rendered unconscious. But if for
example you are by the beach and then you knock somebody unconscious leaving them on the
shore and then a tide comes and drowns him, that would be homicide. Why? P’s being drowned
was a ‘natural’ consequence of D’s action – that is, a consequence which might be expected to
occur in the normal course of the event. What if you do something for the purposes of self
preservation? It does not obviously break the chain of causation. In Pagett (1983) 76 Cr App Rep
279, D in resisting lawful arrest held a girl as a shield and shot at the police. The police fired back
and killed the girl. D was held to have caused her death and to be guilty of manslaughter.
c) The third one is the rule which states that you must take your victim as you find him. In the case
of Blaue [1975] 3 All ER 446, D, stabbed a young girl, and pierced her lungs. She was told that
she would die if she did not have a blood transfusion. Being a Jehovah’s Witness, she refused on
religious grounds. She dies from bleeding caused by the wound. D was convicted of
manslaughter and argued that P’s refusal to have a blood transfusion, being unreasonable, had
broken the chain of causation.

9.3 What is the actus reus of murder?

S 199 provides us with the actus reus which states that ‘any person who by an unlawful act or omission
causes the death of another person is to be convicted for the offence of manslaughter. Under section
200 any person would be held guilty of murder, if that person caused the death of another person by ‘an
unlawful act or omission’ with malice afore thought.

9.4 what is the mens rea of murder?

In Zambia, we seem to have three different types of malice aforethought. What does S204 of the PC
say? Malice aforethought simply means the mental state. According the case of The People v Njovu,
(1969) ZR 132 (HC); malice aforethought relates to the state of the mind of the accused person at the
time he caused the death of the deceased. Therefore the prosecution must prove either that the

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accused had an actual intention to kill or cause grievous harm to the deceased or that he knew that what
he was doing would likely cause death or grievous harm to someone.

In the case of Hyam v Director of Public Prosecutions [1974] 2 All ER 41, House of Lords. The appellant
set fire to a house where the four victims were. The four were Mrs. Booth and her three children. When
the house caught fire, she and her son managed to escape through the window but her two daughters
did not manage to escape and died because of inhaling of the fumes caused by the fire. The appellant’s
motive was jealousy of Mrs. Booth whom the appellant believed was likely to marry a Mr. Jones of whom
the appellant herself was the discarded, or partly discarded mistress. Her defence was that she had
started the fire only with the intention of frightening Mrs. Booth into leaving the neighbourhood, and
that she did not intend to cause death or grievous bodily harm. Appellant was convicted of murder. The
court of appeal dismissed the appeal.

Intention; R v Vickers [1957] 2 All ER 741, Court of Criminal Appeal. What were the facts? The appellant
broke into the shop which was occupied by an old woman of 73 years, a Miss Duckett, intending to steal
money. This woman was deaf. While the appellant was in the shop, she came down the stairs and saw
the appellant. She asked him what he was doing and came towards him, whereupon the appellant
attacked her with his fists and struck her several blows, she fell down. Medical evidence was that death
was caused by shock due to general injuries; the medical evidence was also that the degree of force
necessary to inflict the injuries sustained by the victim would be moderately severe to quite slight force.
The appellant appealed on the ground that the judge misdirected the jury when he told them that
malice aforethought could be implied if the victim was killed by a voluntary act done with the intention
of causing grievous harm. Lord Goddard held; constructive malice is if a person caused death during the
course of his carrying out a felony which involved violence, that always amounted to murder. Appeal
dismissed.

s204 of the PC has got ‘intention to cause the death or do grievous harm’, does the or has an meaning?
According to Kulusika p. 453, if we are to interpret this sentence as one that it implies that there is one
kind of malice aforethought which is express but if we are to say the ‘or’ connotes a continuation of
another sentence then it means s204 (a) has two types of malice aforethought; one being express and
the other one being implied. But with the second interpretation, it is not what the legislature intended
therefore the first interpretation is the one that stands.

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In this case, express malice requires an intention to cause death or to cause grievous harm where as
implied malice requires proof of knowledge that the act or omission will probably cause death of or
grievous harm to some person, even though such knowledge is accompanied by indifference.
Constructive malice aforethought is present if a person, that is the accused, causes death while
committing or attempting to commit a felony. Here there must be a causal link between the death and
the commission of a felony, if this is proved that that person will be convicted of murder even though
they did not have an intention to cause death.

Definition of malice aforethought: The People v Njovu (1968) ZR 132 (HC). The accused, James
Fuleshala Njovu aged 59 was convicted of the murder of his wife Talabilenji Njovu. Malice aforethought
relates to the state of mind of the accused person at the time he caused the death of the deceased. So
far as this case is concerned to establish ‘malice aforethought’ the prosecution must prove that the
accused either had an actual intention to kill or to cause grievous to the deceased, his wife, or that what
he was doing would be likely to cause death or grievous harm to someone. So far as the proof of the first
of these three necessary elements is concerned there is a little difficulty in this case. The accused all
along admitted that he killed his wife. He also admitted that he stabbed his wife with the knife which
was produced in evidence. To stab a person is unlawful unless it appears that the stabbing was justifiable
as being perpetuated legitimately in the exercise of the right of self defence. According to the accused’s
own evidence immediately prior to the stabbing his wife slapped him twice in the face, seized him by the
throat and dragged him or attempted to drag him from the bed room into the sitting room. The court
went on to talk about self defence; stating that the right to self defence extends no further than doing
what is necessary to repel the attack. It is true that if a person

Is intention the same as foresight? Foresight is not the same as intention and foresight will not
suffice for the case of murder. According the to case of He-Kaw The (1985) 157 CLR 523,
intention was defined as a decision to bring about a situation, so far as it is possible to do so, to
bring about an act of a particular kind or a particular result. What is oblique intent? It is used to
refer to the state of mind which occurs when there is no possibility of realizing one’s aim. If an
accused person sets fire in a room where he was detained in order to facilitate his escape, it
might be argued that he did not intend to cause damage to property, but did so as a means to
allow his escape undetected.
The right to self-defence extends no further than doing what is necessary to repel the attack. It is true
that if a person oversteps these bounds and kills his attacker, the need in his case for some reason of self

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defense may suffice in the circumstances to reduce his act of homicide from murder to manslaughter.
But I am fully satisfied on the evidence which I have heard, including that of the accused himself, that
when he stabbed his wife he was not acting in self-defence at all. It follows therefore that I am fully
satisfied that the prosecution witness have established the first two of the three elements that together
constitute the crime of murder, namely, that the accused caused the death of his wife by an unlawful act.
He is thus at the very least guilty of manslaughter.

But what about malice aforethought? The accused claims that he did not intend to kill or cause grievous
harm to his wife and, that he did not know that his use of the knife would produce either of these two
results. This was obvious difficult to believe but the accused claimed that his judgment was completely
overcome by the heat of passion engendered in him by the provocation he received from his wife, under
the stress of which he lost all control of himself. Sections 182 and 183 of the PC provides that when a
person unlawfully kills another, but does the act which causes the death in the heat of passion caused by
sudden provocation, is guilty of manslaughter only. What are the condition for provocation?

a) the provocation must be some wrongful act or insult of such a nature as to be likely, when done
or offered to an ordinary person of the community to which the accused belongs, to deprive him
of the power of self-control and to induce him to assault the person by whom the act or insult is
done or offered.
b) The assault so induced must be committed before there is time for the accused’s person aroused
by the provocation to cool.
c) The character and nature of the assault so induced must bear a reasonable relationship to the
provocation suffered.

9.5 What is the rule on provocation?

When the issue of provocation is raised, there is no burden on the accused to establish it; the burden is
on the prosecution to negative it and moreover to negate it beyond reasonable doubt.

Held; that the accused was provoked by the deceased conduct. She used to return home late, refused to
prepare food, demanding meat for herself and assaulting the appellant. What is the test for provocation?
The test is objective. Therefore was this provocation of such a nature as to be likely to deprive an
ordinary person half the community to which the accused belongs of his power of self control? The
provocation here was of such a nature likely to deprive an ordinary person of the accused’s community

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of his power of self control and that it did so deprive the accused of his power of self control. I also find
that when the accused stabbed his wife he did so in the heat of passion and before there was time for
that passion to cool. But can it be said that the accused’s stabbing of his wife bore a reasonable
relationship to the provocation he had suffered from hers? The courts took into consideration section
182 and 183 of the PC. It was held that on the standards of the community to which he belongs, the
retaliation did bear a reasonable relationship to the provocation. Therefore accused convicted of murder.

INTENTION

Dickson Sembauke Changwe and Ifellow Hamuchanje v The People (1989) ZR 144. The facts; threw out
passenger out of the moving train because he called them derogatory names when they manhandled
him regarding his ticket. The court looked at s200 and 204 of the PC which states that murder is a crime
which requires a specific intent or a specific frame of mind and it was for the prosecution to adduce
evidence which will satisfy this requirement. If therefore the verdict of murder is to be sustained, this
can only be on the basis that the appellants intended to cause grievous harm in terms or they knew that
their act would probably cause death or grievous harm. Thus it is a question of fact whether a
reasonable person must know or foresee that serious harm is a natural and probable consequence of
throwing someone out of a moving train. If, armed with this realization and foresight, and knowing that
serious harm could result, an accused proceeds as the appellants did, an intent founded on knowledge
of the probable consequence will be evident and it will suffice to satisfy this section.

10. MANSLAUGHTER
What is manslaughter? There are two types of manslaughter; these are voluntary manslaughter and
involuntary manslaughter. For voluntary manslaughter D may have the malice aforethought of murder,
but the presence of some defined mitigating circumstances reduces his crime to the less serious. This is
where for example D kills under provocation or under diminished responsibility. Whereas involuntary
manslaughter consist of homicides committed with a fault element less than that required for murder
but recognized by the common law as sufficient to found liability for homicide. When we talk of
involuntary manslaughter there are two types:

 Manslaughter by doing unlawful and dangerous act

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 Gross negligence manslaughter

What is provocation a defence for? Provocation is a defence under murder, so if during a trial for
murder the prosecution could not prove the intention then the accused may be acquitted. Only when
there is intention that is when the trial will continue and therefore the accused will be able to plead
provocation thus the sentence reduced to manslaughter. Provocation as a defence has three inseparable
elements;

 The act of provocation

 The loss of self control(both actual and reasonable)
 And the retaliation must be proportionate to the provocation.

On provocation there are obviously two test. The first one is was there provocation and the second one
is was the provocation enough to make a reasonable man do as he did? . In the case of Ibrams (1981) 74
Cr App Rep 154, the appellants and a young woman, A, had been bullied and terrorized by Monk over a
period up to and including Sunday October 7. They had been unable to get police protection.
Anticipating that there would be a repetition of Monk’s behaviour on Sunday, 14 October, on
Wednesday, 10 October the three made a plan. On Sunday Monk was to be got drunk and leave a signal
for the appellants who would attack him and break his arms and legs. The plan was carried out
meticulously and Monk was killed. The appellants were convicted of murder. They appealed on the
ground that the judge had wrongly withdrawn the defence of provocation from the jury. The appeal
court held that ‘here the last act of provocation was on Sunday, 7 October. It was not in any way
suggested that the dead man had provoked anybody on the night of his death. In fact, when Gregory and
Ibrams went into the bedroom he was asleep. The first blow he received was inflicted on him by Gregory,
and it dazed him but did not knock him unconscious. He was able to sit up in bed and he was attacked by
Ibrams. Nothing happened on the night of the killing which caused Ibrams to lose his self control. There
having a plan to kill Monk, his evidence that when he saw him all the past came to his mind does not, in
our judgment, provide any evidence of loss of self-control. Provocation may extend over a long period
of time provided it culminated in a sudden explosion, sparked off by some relatively trial incident.
Therefore if a person had the time to cool off, he would not be able to succeed with the defence of
provocation.

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Another example is that you are so provoked but you want to use a gun, but the gun is with your friend
maybe in Kabwata or by your shop in Kabwata. You then go to Kabwata to collect the gun and then kill a
person. Will your defence of provocation stand? No, it will not stand because you have had the time to
cool off.

If an act is done on the third party, is that enough to warrant provocation? Yes, It can, for instance if
Mulenga came upon Bwalya committing rape on the wife, that is enough to warrant provocation on
Mulenga. Or you come upon somebody raping your daughter that is enough to warrant provocation. The
court will take into consideration the characteristics of an ordinary person. In the case of Camplin [1978]
2 All ER 168, HOUSE OF LORD. What were the facts? Camplin, who was 15 years of age, killed a middle-
aged Pakistan, Mohamed Lal Khan, by splitting his skull with a chapatti pan. At the time the two of them
were alone together in Khan’s flat. At camplin’s trial for murder, his only defence was that of
provocation. According to the story that he told in the witness box but which differed materially from
that which he had told the police, Khan had buggered him in spite of his resistance and had then laughed
at him, whereupon Camplin had lost his self-control and attacked Khan fatally with the chapatti pan. He
was convicted of murder in the trial court but when the case went on appeal, it was held that the
‘proper direction to the jury is to invite the jury to consider whether the provocation was enough to have
made a reasonable person of the same age as the appellant in the same circumstances do as he did.
Held that the reasonable person referred to in the question is a person having the power of self-control
to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing
such of the accused’s characteristics as they think would affect the gravity of the provocation to him, and
the question is not merely whether such a person would in like circumstances be provoked to lose his
self-control but also would react to the provocation as the accused did.

R v Thornton [1992] 1 All ER 306, Court of Appeal, Criminal Division. What were the facts? The
appellant, who had a history of mental problems, married H, whom she knew to be a heavy drinker who
was jealous and possessive, in August 1988. There was thereafter a history of domestic violence leading
to charges being laid against H in May 1989. The abuse continued and on 10 June the appellant was
heard to say she would kill H. Following a row on 13 June concerning H’s drinking, during which H called
her a whore, the appellant went to the kitchen to look for something to provide protection in case she
was attacked. She picked up a carving knife and sharpened it. She returned to the couch where H was
lying and asked him to come to bed. He refused and said he would kill her when she was asleep. She said
she would kill him first and H sarcastically suggested that she should go ahead. The appellant then

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stabbed him once in the stomach and killed him. She then called for an ambulance and the police. At this
time, she told the police that she wanted to kill him and she made a remark when the police where
trying to save him stating ‘I do not know why you are bothering, let him die.’ When interviewed later she
said she had stabbed him after he had threatened to kill her; she meant only to frighten not to kill him
and thought he would have deflected the blow. The jury convicted her of murder.

Beldam LJ went on to say that provocation in ordinary language is used pretty freely and not always very
appropriately. He then stated that ‘provocation consists of some act or series of acts done or words
spoken or a continuation of words and acts which causes in the particular defendant a sudden and
temporary loss of self-control and which would have caused a reasonable, sober person to lose her
self-control and to behave as the defendant behaved. Therefore the two tests come into play here. So
the first question here is; whether the provocation conduct, such as it was, if there was any, caused the
defendant to lose her self-control? The defendant herself asserts that there was no sudden loss of self
control.

Appeal therefore dismissed.

Read the cases of:

Liyamba v The People (1978) Z.R 25

Diminished responsibility is also a defence. In this case a prosecution will have to prove murder and then
the defense be raised. So in the case, a person will kill another person and also have the intention or
malice aforethought but it will be reduced to manslaughter if it can be proved that that person suffers
from an abnormality of the mind or insane.

Involuntary manslaughter consists of unlawful act and gross negligence. What does s199 of the PC say?
Any person who by an unlawful act or omission causes the death of another person is guilty of the felony
termed ‘manslaughter.’ An unlawful omission is an omission amounting to culpable negligence to
discharge a duty tending to the preservation of life or health, whether such omission is or is not
accompanied by an intention to cause death or bodily harm.

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10.1 MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT

What does this involve? With the unlawful act, it simply means that if a person does an unlawful act, he
will be convicted of manslaughter although he did not have the intention but by virtue of him or her
doing that unlawful act, he should be convicted. For the courts to convict somebody of unlawful act
(constructive manslaughter) at least four elements must be present. These are;

i) that the act was intentionally or recklessly committed

ii) that the act was unlawful
iii) that the act was dangerous
iv) the unlawful act and dangerous act caused death.
The case of R v Franklin illustrates this. The defendant was charged with manslaughter. The facts of the
case are that he took a box from another man’s stall and threw in into the sea. The box hit and killed a
man who was swimming. The prosecution argued that the question of the defendant’s negligence was
immaterial, since it was manslaughter where death ensued in consequence of any wrongful act. What
were the facts in Church? The appellant was mocked by a woman and fought with her knocking her
unconscious. He failed to revive her and in a panic, thinking she was dead, threw her into the river where
she drowned. He was convicted of manslaughter. Is it always manslaughter to cause death by unlawful
act? In the case of Church, the Criminal Court of Appeal held that it was wrong to direct a jury that to
cause death by an unlawful act in relation to a human being is necessarily manslaughter. ‘for such a
verdict to follow, the unlawful act must be such as all sober and reasonable people would inevitably
recognize must subject the other person to, at least, the risk of some harm resulting and this should
not be exactly serious harm. What is the importance of the ruling in Church? The importance of this
ruling is that fact that it restricted the category of unlawful acts to dangerous acts. Before Church, there
was no doubt that death caused by such an act was manslaughter. It was less clear that an unlawful act
which was not obviously dangerous to human beings would not be sufficient, if by chance it caused the
death of a human being. What were the facts in Newbury? The appellants, two 15 year olds, pushed
into the path of an oncoming train a piece of paving stone which some workmen had left on the side of
the railway bridge. The stone killed the guard of the train. There were convicted for manslaughter.
According to the court an accused is guilty of manslaughter if it is proved that he intentionally did an
act which was unlawful and dangerous and that act inadvertently caused death and that it is
unnecessary to prove that the accused knew that the act was unlawful or dangerous. And according to
the case of Newbury; it was held by the House of Lords that some crimes; ‘need only what is called a

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basic intention, which is an intention to do the acts which constitute the crime. Manslaughter is such a
crime. Therefore, there must be an intention to do an act which is in fact unlawful and dangerous . If D
knows all the relevant facts, it is irrelevant that he does not realize that the act is unlawful or that it is
dangerous. ‘In judging whether the act was dangerous, the test is not did the accused recognize that it
was dangerous but would all sober and reasonable people recognize its danger.’ Therefore the test of
dangerous is objective. Therefore if the act is unlawful and it causes death, it will be manslaughter. So
even in the case of a parent chastising his child and the force used is unreasonable and as a result the
child dies, the parent will be convicted of manslaughter. In the case of Lamb [1967] 2 QB 981, D pointed
a loaded gun at his friend, P, in jest. He did not intend to alarm P and P was not alarmed. Because they
did not understand the way in which the revolver works, both thought that there was no danger, but,
when D pulled a trigger, he shot and killed his friend. It was held that he could not be convicted for
manslaughter because it was not unlawful.

What about when someone is doing a lawful act, which results in death, can that person be convicted
of manslaughter?

Mpande v The People (1977) Z.R 440

But in the case of Larkin [1943] 1 All ER 217, O had been committing adultery with D’s mistress, P. D took
a razor and, according to his story, pulled it out of his pocket with the intention only of terrifying O by the
show of the razor. P, who was drunk swayed against him and her throat was cut by the razor as he held it
out for the purpose of frightening O. D was convicted of manslaughter. It was held that in case of lawful
acts. If a person is engaged in doing a lawful act, and in the course of doing that lawful act behaves so
negligently as to cause the death of some other person, then it is for the jury to say, upon a
consideration of the whole of the facts of the case, whether the negligence proved against the accused
person amounts to manslaughter. It will not usually amount to manslaughter unless the negligence is of
a very high degree. But where the act which a person is engaged in performing is unlawful, then, if at
the same time it is a dangerous act, that is an act which is likely to injury another person, and quite
inadvertently he causes the death of that other person by that act, then he is guilty of manslaughter.

The People v Kajilo Muzungu (2011) Vol. 2 Z.R 334

10.2 MANSLAUGHTER : GROSS NEGLIGENCE

What are the requirements:

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 There must have been a duty to the victim; and

 There must have been a gross breach of that duty; and
 That breach must have caused death

See the case of Adomako [1995] 1 AC 171

In the case of The People v Zulu (1968) ZR 88; what were the facts? The facts are that this child, Emily
Shawa had diarrhoea and was vomiting. So the parents gave her medicine bought from the chemist and
her condition improved but then her parents decided to have her injected. Therefore the deceased
mother made arrangements with someone to have her child injected. So this person was paid to give a
chloroquine injection to the child. He injected the child with 10 cubic centimetres of chloroquine, the
maximum for the child being 11/2 cubic centimetres. Within minutes of receiving the injection, the
deceased died, the cause of death being cardiac arrest.

The court was of the view that this was not a case of causing death of a person by doing an unlawful act
per se. It is a case of manslaughter by negligence, and it is necessary to consider the relevant law.

Held; I have no doubt that the accused undertook to administer medical treatment (by way of injection)
to the deceased. He was therefore under a duty in law to have reasonable skill and to use reasonable
care in administering it. I find that he possessed no skill and used no care, except in the pure mechanics
of giving the injection. He had no medical training and no knowledge of the properties or usage of
chloroquine or of its correct dosage.

On gross negligence you can look at the cases of Adomako and Cucuto (1968) Z.R 149.

Infanticide; it is committed when a mother of a child under the age of twelve months, kills the child
because the balance of her mind is disturbed by reason of her not having fully recovered from the effect
of giving birth to the child, or by reason of the effect of lactation consequence upon the birth of the
child. This offence is found in s203 of the PC.

11. SEXUAL OFFENCES

The goal of this unit is to enable you as a student demonstrate an understanding of sexual offences

After reading this unit, you should be able to understand and critique the following:

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 Rape
 Defilement
 Indecent assault
 Sexual harassment

11.1 RAPE
It is unlawful sexual intercourse with a woman without her consent. Rape as a crime has been in
existence for a long time and in most cases it is used as a way of intimidating women.

There also has been an increase in rape statistics in Zambia. It seems there are more rape cases now
than there were before. The sad part is that, people believe that by having sexual intercourse with
children you will be cured of HIV or be rich.

But it is believed that although the statistics have been high, in most cases, these crimes are not
reported

Section 132 of the Penal Code states that ‘any person who has unlawful carnal knowledge of a woman or
girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats
or intimidation of any kind or by fear of bodily harm or by means of false representations as to the
nature of the act or, in the case of a married woman, by personating her husband, is guilty of the felony
termed rape. Any person who commits the offence of rape is liable to imprisonment for life. Any person
who attempts to commit rape is guilty of a felony and is liable to imprisonment for life. Mr. Kulusika P.
510 states that they are three types of rape;

1) primary group; which consist having sexual intercourse with a woman or girl; and without their
consent
2) secondary group involves having sexual intercourse with a woman or a girl with her consent; but
the consent is obtained by force, means of threats, intimidation, fear of bodily harm,
misrepresentation as to the nature of the act, or personating of the woman’s or girl’s husband or
boyfriend.
3) The conditional group; this arises as a result of change of circumstances that is having sexual
intercourse with a woman or girl, with her consent, but the consent is revoked (or withdrawn) at
the time of or during the progression of the act.

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So, what is the actus reas and mens rea of the crime of rape? The means rea of rape is intention or
recklessness. What if the person believes that the girl is consenting but in actual fact the girl is not
consenting?

It is a defence to the charge of rape, if the woman consented to the act. But if for example the woman
consents before the act and in the middle of the act changes her mind, does it mean that she has
withdrawn her consent? A woman can withdraw her consent any time. She has the right to withdraw her
consent even if the act has already started and if the man continues with the act, that will be deemed
rape. In the case of Kaitamaki v R [1985]AC 147, PC, where a woman revoked her consent during sex
and the man continued, it was held that it was rape. And according to the case of Cooper [1994] Crim LR
531, CA., it was held that penetration was a continuing act. It was held that if a man continues
penetrating after he has been told to stop and withdraw, it means he continues to penetrate without
consent.

What is the actus reas of rape? There need to be sexual intercourse without the consent of the woman
or the girl.

What about the phrase unlawful in the PC, what does it mean? It means that in order for the act to
amount to rape, the act must be unlawful. So, according to our law, a man cannot rape his wife because
they are lawfully married and therefore the act cannot be unlawful. It is said that when she consented to
the marriage then she must have consented to everything that comes with the marriage. According to
Hale (1976)1 PC 629 ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife,
for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
husband which she cannot retract.’ But according to English law, a husband is capable of raping the wife.
In R [1991] 4 All ER 481 , this case pre-empted legislative change by holding that the rule was no longer
appropriate in the modern law which recognized husband and wife as equal partners in marriage and
that accordingly a husband could be guilty of the rape of his wife. So the common law rule is that a man
cannot rape his wife but an Act was passed in Parliament which made it possible to convict a man of
raping his wife.

What does carnal knowledge in the PC mean? It means that having sexual intercourse with a woman.
The slightest penetration is enough to convict some body of rape. So in the case of rape, you don’t have
to prove anything apart from the fact that there was penetration and that penetration was without the
consent of the woman or girl. This was according to the case of Mporokoso (1939)2 NRLR 152. What

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were the facts in the Mporokosa case? The complainant claimed that on one particular night, she woke
up and found the appellant on top of her. The appellant was convicted of rape but he appealed.
According to the law, you cannot have sex with a person who is asleep or who is so intoxicated. ‘If a man
has or attempts to have a connection with a woman while she is asleep, it is not defence that she did not
resist as she is incapable of resisting. The man can therefore be found guilty of rape or attempted rape.
Held; however, I am not satisfied that the proof here of rape is sufficient. To prove a rape it is necessary
to prove penetration or partial penetration. The only evidence here is that of the complainant where she
says ‘I woke up and found Yohani on top of me…he had actually a connection with me. He was therefore
convicted of attempted rape.

The second element of the actus reus is that sexual intercourse took place without the consent of the
victim. This absent of consent must be communicated to the accused. If one has had sex with a person
who is so drunk or asleep then they will be said to have had intercourse without the consent of the
victim. Is submission the same as consent? No, submission is not the same as consent. In the case of
Olugboja (1982) QB 320 (CA), it was held that submission is not consent. According to this case, it was
stated that whenever there is consent, there is always submission but there can be submission without
consent. What were the facts of Olugboja? L raped V, and then took her companion K into an adjoining
room in order to rape her. L’s companion O told V that he was going to have intercourse with her and
asked her to remove her trousers, which she did because she was frightened. She did not struggle or
resist when O had intercourse with her. O was convicted of rape and appealed. The test is not ‘was the
act against her will?’ but ‘was it without her consent.’ It is therefore wrong to assume that the woman
must show signs of injury or that she must always physically resist before there can be a conviction for
rape. Appeal dismissed.

In the case of Linekar (1995) 3 All ER 70 (CA), the facts are the appellant was convicted of rape. The
complainant was a woman of 30 who worked occasionally as a prostitute to supplement her social
security benefit. On the particular day, she was working past mid-night when she was approached by the
appellant who was 17 years. There were negotiations between them and they finally agreed on the sum
of E25. After the act, the appellant went off without paying for the services. Immediately the
complainant knocked on the door of a neighbouring house. She was distressed, nearly naked and
complained that she had been raped. The appellant was arrested and, when interviewed he told a
number of lies. The prosecution’s evidence was that the act of sexual intercourse took place as a result
of a forced assault upon her and did not take place with her consent. She said in evidence that she would

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not have agreed to sexual intercourse until she had been paid in advance and unless a man wore a
condom. According to the appellant, the act did not take place without the consent of the complainant,
but it was just that after the act, the appellant did not keep his promise and went away with the money.
It was in fact clear that the appellant did not even have the E25 on him. Therefore the jury was of the
view that although there might have been consent, the appellant never intended to pay and the consent
was vitiated by fraud.

Court held; at one extreme, fraud as to the nature of the act is clearly accepted as rape; while, at the
other, a man who promises a woman a fur coat in return for sexual intercourse, with no intention of
fulfilling his promise, would not generally be regarded as committing rape.

What cases of consent by fraud amount to rape? It is fraud as to the nature of the act and
impersonation of a husband. Impersonation here can be of anyone. So where a person is made to
believe that they are having intercourse with a person that they know while in actual fact it is someone
else, that person can be convicted of rape. An essential ingredient of the offence of rape is proof that
the woman did not consent to the actual act of sexual intercourse with the particular man who
penetrated her. Therefore, if the prosecutor were to prove that she did not consent to sexual
intercourse, rape is proved. Like in the case of R v Flattery (1877) 2 QB 410 she agreed to a surgical
procedure which she hoped would cure her fits and in R v Williams [1923] 1 KB 340, she agreed to a
physical manipulation which would provide her with extra air supply to improve her singing. In these
cases it is the non-consent to sexual intercourse rather than the fraud of the doctor or choirmaster that
makes the offence rape. What about in the impersonation cases? That ingredient is not proved in the
husband impersonation cases because the victim did not consent to sexual intercourse with the
particular man who penetrated her. Therefore in this case, there was consent by the prostitute to sexual
intercourse. There was consent by the prostitute to sexual intercourse with this particular appellant.
Even in the impersonation cases, it is the absence of consent and not the existence of fraud which makes
it rape. Consent in this case demands a perception as to what is about to take place, as to the identity
of the man and the character of what he is doing. Once the consent is comprehending and actual, the
inducing causes can not destroy its reality and leave the man guilty of rape. Therefore the complainant
in this case has consented to the sexual act and the appellant cannot be charged with rape.

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and forcing himself on Sibeso. Can Mulenga be charged of rape?

11.2 Corroboration
In sexual cases the proper direction is that it is not safe to convict on the uncorroborated testimony of
the victim. But this does not mean that every time that there is a sexual offence they need to be
corroboration but usually they need to be. There must be corroboration as to the offence and
corroboration as to the identity of the accused. Why is there a need for corroboration when it comes to
the accused? There is always a danger of false complaint and false implication. If there is no
corroboration to the identity of the accused then the accused will not be convicted of rape. But if there
is no corroboration, the judge may also convict the accused if he is satisfied of the complainants’
evidence. A conviction may be upheld in a proper case notwithstanding that no warning as to
corroboration has been given if there in fact exists in the case corroboration or that something more as
excludes the danger to which we have already referred. But also note that a complaint made by the
complainant soon after the occurrence is no corroboration of the truth of the complainants story.

What were the facts in Butembo (1976) ZR 193? This man gave a lift to a woman and while on their way
he pulled off the road into a secluded place and had intercourse with her using force which resulted in
bruising of her face and other minor injuries. After that, they went back into the car.

In this case, the magistrate did not warn himself of the importance of corroboration and therefore
counsel for the appellant argued that this should lead to an acquittal. According to the court, it was
settled law that in a proper case, notwithstanding that no warning as to the corroboration has been
given when it should have been given, a conviction may be upheld. That there was ample corroboration
in fact cannot be doubted. The magistrate in the course of his judgment set out a number of matters on
which he relied and they were corroboration of the complainant’s story. The principal matters in
question are the injuries on her person, but more importantly perhaps the injury sustained by the
appellant himself which the complainant said had been inflicted by the sharp point of the umbrella. She
said that this injury was inflicted when she was struggling with the appellant prior to the rape. The police
officer to whom the report was made on the road said that the appellant himself had admitted that the
complainant had inflicted this injury on him, and the witness said also that he saw blood on the tip of
the umbrella; we do not consider that the failure of the doctor to mention blood on the complainant’s

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face, alleged to have come from the injury to the appellant’s hand, displaces the overwhelming nature of
the remainder of the evidence. The magistrate accepted as truthful the evidence of this officer as to the
statement made by the appellant that he had intercourse with the complainant following an argument
over the money, but he rejected the story of the payment of money and specifically referred to the fact
that the notes which the appellant said he had paid to the complainant were not found on her. On the
basis of these findings there was overwhelming corroboration of the evidence of the complainant, and
we have no hesitation in holding that in spite of the failure of the magistrate to warn himself as to the
desirability of corroboration, he did in fact consider all the matters which were corroboration and found
the evidence in this regard to be true. Had he warned himself as to the desirability of corroboration we
are satisfied that he must inevitably have convicted in any event and that the test laid down has been
met. Appeal therefore dismissed.

What were the facts in Tembo (1966) /ZR 126? The facts were that Joyce Tembo with the baby on her
back went to look for firewood. She met the appellant who greeted her, which she answered to and
continued. According to her, he then came from behind and grabbed her pushing her to the ground. She
fell on her back and he had a connection with her. She shouted for her and her friend came in answer to
her shouts. One of her friends, who came testified that when arrived, Joyce complained to her that
someone had had a connection with her. Joyce was pointing to the appellant who was walking away
from the scene. They then shouted for him to stop, which he did and he was taken to an office where he
was locked up. She noticed that Joyce had dust on her side and the baby also had dust on it. The
complainant was medically examined but there was nothing abnormal about her. Corroboration is
looked for, and the jury should be warned of acting without it, in all cases of sexual offences, irrespective
of the age or sex of the complainant or other party involved. In this case, there was corroboration as to
the identity of the appellant in the friend saw him walking away; as to the assault, in that there was dust
on Joyce’s side, and as to the lack of consent that she had shouted for help. There was, however, no
corroboration of the sexual element of the offence; and at this stage of the trial, the magistrate was
apparently not sufficiently satisfied with Joyce’s evidence to convict on it without corroboration. He
substituted the charge of rape for assault with intent to commit a felony, s 222 of the PC.

Section 198 of the Criminal Procedure Code authorizes a subordinate court to alter a charge that is
defective either in substance or form. In the instant case, it seems that it was not the charge that was
defective but the prosecution evidence which was adduced in its support. As I have said, the appellant
was put on his defence to the substituted charge of assault with intent to commit a felony, namely, rape.

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He gave evidence that he had met the complainant and that she spoke to him. Her friend then arrived.
They made a lot of noise, and he went with them to his place of work. They said they had found the man
who was troubling them in the compound, and when the police arrived it was only then she accused him
of having raped her. In his judgment, the learned magistrate stated that the complainant, Joyce, was an
unsophisticated young woman, and he felt that although she was not a dishonest witness it would be
unsafe to rely on her evidence that there was actual penetration. He said that it was because she was
not a good witness that he substituted the charge of assault for the charge of rape. He dealt carefully
with the need for corroboration in a charge of rape. He then said that corroboration was not required in
a charge of assault, but it should be looked for in the sexual element of the offence. He found no
corroboration there, but he decided that the only explanation for the assault was that the appellant had
the intention of raping the complainant and he convicted him. Therefore appeal allowed.

What were the facts in Emmanuel Phiri v The People (1982) ZR 77? This woman who was pregnant was
walking along a road near her village when a man on a bicycle came up to her. He forced her to the
ground, beat her up and threaten her with death if she refused, and had carnal knowledge of her with
out her consent. Throughout the incident, she was struggling and shouting for help. She was again
beaten after the rape for not being quiet during the rape. She was bruised and covered in dirt and was
crying. She let several people know and also described the appellant and the bicycle that he had. A few
moments later a person saw the appellant who fitted the description given, both as to the attire and the
bicycle and intercepted him, whereupon the appellant dropped the bicycle and ran off into the bush. The
following day the appellant was identified by the complainant when he came to the village to retrieve his
uncle’s bicycle. He was apprehended and handed over to the police. The appellant argues in one of his
grounds of appeal that it was not established that the offence had been committed. With this
submission we cannot agree. There was ample evidence to support the finding that the complainant had
been raped. There was adequate support for her testimony in the evidence of early complaint, her
distressed condition, her appearance and the substance of the medical evidence which disclosed a state
of affairs which was in the doctor’s opinion, consistent with having had something inserted in her private
parts. The major ground of appeal concerned the identity of the accused. In this case the trial magistrate
warned himself of the need to look for corroboration but he only did this with regard to the crime but
not to the identity of the accused. For in as much as there is always recognized the danger of a false
complaint, the courts have consistently recognized an even greater danger, namely, the danger of false
implication. The court below had confined its consideration of the issue of identity to a review of the

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quality, nature and circumstances of identification by reason of which the complainant’s evidence was
found to be reliable. As will be seen shortly, while this finding cannot be questioned, the failure on the
part of the learned trial magistrate to warn himself with reference to corroboration as it related to the
identity of the offender must be viewed as a misdirection. We must now proceed to consider whether on
the facts of this case the proviso should be applied. As this court has said before, in Butembo, a
conviction may be upheld in a proper case notwithstanding that no warning as to corroboration has been
given if there in fact exists in the case corroboration or that something more as excludes the danger to
which we have already referred. According to the court, the incident occurred in broad daylight, and
judging from the complainant’s ability to give an accurate description, which enabled others to spot the
appellant, the opportunity to make reliable observations, must have been good. Appeal therefore
dismissed.

What were the facts in Mweemba and Another v The People (1973) ZR 127? The complainant alleged
that she and her husband had been drinking at a beer hall with the appellants and that shortly after her
husband had left to go on duty she also left and proceeded home. On the way home, she alleged that
the appellants overtook her and each raped her in turn. The complainant reported the incident to three
people before telling her husband. But when she told the first and second person she did not mention
that she was raped she just mentioned that she had been assaulted. She only mentioned the rape aspect
to the third person. The complainant’s husband said that the complainant reported that she had been
raped. All the witnesses alluded to the fact that the complainant was in a distressed condition, that she
had only one shoe, and that she was not wearing a chitenge; the complaint herself said that the chitenge
cloth had been taken from her by the appellants. The first appellant confirmed when interviewed by the
police that he had intercourse with the complainant but that there was consent. The second appellant
admitted that he was present when the first appellant had intercourse with her. In court, the first
appellant in an unsworn statement denied having anything to do with the complainant on the day in
question; the second appellant, also in an unsworn statement, denied having intercourse with the
complainant and in his case his position was consistent with the statement made to police. But there is
some unsatisfactory aspect in this case; the complainant says that the appellants were in her company
and that of her husband before her husband left for work; this is supported by the statements made by
both appellants to the police. On the other hand, the husband himself was obviously asked in whose
company he had left his wife when he went to work and he mentioned two people who on the face of
the record were clearly not the appellants. This conflict cannot be dismissed as unimportant; it suggests

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that after the husband left for work the complainant joined the appellant at the beer hall. In the present
case the magistrate does not in fact say whether he finds corroboration, and if so, what evidence he
regards as such, or whether on the other hand he finds that there is no corroboration but that he is
satisfied that it is safe to convict without it. In effect he says simply that he accepts the evidence of the
complainant. This approach is misdirection and the evidence can not stand unless this court can apply a
provision. The court was of the view that there was evidence on which the court would have convicted
on such as the distressed condition of the complainant but there was also evidence that the complainant
did not mention the rape in the first case but just the assault. The conflict as whose company the
husband left the wife in is also conflicting. Therefore there was evidence before the court on which a
conviction could have been sustained but there was also some doubt. Therefore appeal allowed.

Activity

In order to prove rape, there must be corroboration in most cases. What does one need to corroborate
to?

11.3 INDECENT ASSAULT

Please note that s 137 of the PC has been amended. It now states ‘any person who unlawfully and
indecently assaults any child or other person commits a felony and is liable, upon conviction, to
imprisonment for a term of not less than 15 years and not exceeding 20years. Subsection ii states that it
shall not be a defence to a charge of an indecent assault on a child to prove that the child consented to
the act of indecency. Note that in this subsection the proviso has been removed. There was a proviso
which stated that it will be a defence if a person had reasonable belief that the child was of or above the
age of 12years. So even though the accused believed that the child was 18 years but in actual fact the
child is 10 years that will not be a defence. Section 158 talks about male persons whether in public or
private who commits any act of gross indecency with a male child or person or attempts to do that
commits a felony and is liable to imprisonment for not less that 7 years and not more than 14years.
Subsection ii talks about females whether in private or in public commits any act of gross indecency with
a female child or person or procures such persons or attempts to procure the commission of any such act
by any female person with herself or with another female child or person whether in private or public
commits a felony and is liable to imprison for more than 7 years but less than 14 years. But a child who

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commits such acts or attempts to commit such act with another child will be liable to community service
or counselling.

So having looked at it in the PC, what do you understand by indecent assault? It includes a wide range of
activities which right minded persons of the community would consider offensive to the public and the
victim.

What is the actus reus of indecent assault? It comprises two aspects; assault or battery and
circumstances of indecency. Can an indecent act take the form of an assault? Yes, and this is according to
the case of Rolf (1952) 36 Cr. App 4, in the case the accused was convicted where he moved towards a
woman with his person exposed, inviting her to have connection with him, even though he did not touch
her. There can be no assault unless a person does something to another or acts so as to cause another to
apprehend that he is going to do something to him. In earlier cases, the courts were of the view that
there can only be indecent assault if the act was hostile. What were the facts of Faulkner v Talbot [1981]
3 All ER 468? The appellant was convicted of indecent assault on a boy, who at the time was 14 years
old. The events happened in the appellant’s home because the boy was living with the appellants having
left his parents home. The appellant and the boy watched a horror film on the television, the boy said he
was scared by the film and as a result the appellant told that boy that he would sleep with her if he
wished. Once they were in bed, the appellant invited the boy to have sexual intercourse with her. She
pulled her on top of her and had intercourse with her. According to counsel for the appellant, he argued
that since the act of sexual intercourse in these circumstances is not an offense on the part of a woman
therefore touching of a boy cannot amount to an offense. His other argument was that by the woman
just lying there and letting the boy do all the acts, it would not be an offence. Here counsel for the
appellant was relying on the previous cases which stated that there can be no indecent assault with no
acts of hostility. Court held; first of all it defined an assault. An assault is any intentional touching of
another person without the consent of that person and without lawful excuse. It need not necessarily be
hostile or rude or aggressive, as some of the cases indicate. Appeal dismissed.

What were the facts in Mwanza (1979) ZR 154? He was charged with indecent assault on a female
contrary to s 137 (1) of the PC. The facts are that the complainant was taken by the accused into the
fitting room where in the presence of two others the accused stripped her naked because she was
suspected of concealing things which she had stolen and when he found nothing on her, he apologized.
According to the complainant, he touched her breasts and held her waist. The two witnesses confirmed
everything apart from the fact the he touched her on the breasts or for that matter anywhere else

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except in the course of actually removing her clothes. The accused had told the Youth Regional Secretary
that he undressed the girl because the other ladies refused to do so and because the other ladies told
him she had stolen something. But in a warn and caution statement it was said that he told the police
that the ladies searched her. According to the magistrate’s judgment he appears to consider that two
witnesses corroborated the complaint in her evidence that the accused touched her private parts. But
this is not so. Furthermore the magistrate never at any point said what constituted indecency; on what
evidence he found the assault and on what evidence he found the indecency. Was it the mere fact of
undressing the complainant or was it because he though the accused touched her private parts? The
accused alleged statement to the police that it was the women who undressed the complainant; this
contention for a start has to be rejected before there can be a conviction wherever view of the law is
taken. The alleged touching of the private parts was not corroborated and it is the indecency which
must be corroborated and not the assault. Therefore, is it indecent within the meaning of the section
for a man to undress a woman suspected as a thief quite openly in the presence of other woman? Then
they looked up for indecency in the dictionary. It was defined as unseemliness, unbecoming or
outrageous conduct an instance of this, uncomeliness or some immodesty… If that is what the word
means then a male, by undressing the complainant a female, was behaving indecently. The offences
contained in chapter 15 from section 132 to 164 have in every one of them an overtone of sexual
morality. Perhaps the reason for this is simply that at the time the sections were passed Parliament only
thought of morality in terms of sexual morality where as today immorality is not confined to one aspect
of morals but concerns all parts of a person’s moral character. I take the view that indecency in this
context has a wider meaning than pure sexual indecency. It is my view that to construe the word
‘indecency’ so narrowly that an offence under this section cannot be made out unless there is explicit
evidence of what we would call ‘sexual desire’ is to construe the section wrongly in Zambia today. It is
not possible to say precisely where the line shall be drawn but in this case here is a man vested with
authority to search, deliberately strips a suspect of the other sex naked when everybody knows and the
common practice is known that men do not search women just as women do not search men: to break
that custom in Zambia in these circumstances is to my mind indecent.

See the case of R v Church [1988] 2 All ER 221, House of Lords

In indecent assault consent is a defence. Therefore in order to convict a person the prosecution must
prove absence of consent.

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What is the mens rea? There must be the mens rea of assault or battery. The mens rea for assault is
the intentional or reckless causing a person to apprehend the possibility of imminent violence or
immediate application of force. Whereas the mens rea of battery is that the accused intends to
inflict unlawful violence on the victim. In addition to that the accused must intend to commit
assault which, right minded people would consider indecent. Is there need to prove that the accused
assaulted for sexual gratification? There is no need to prove this in certain cases but where the
conduct falls on the border line between indecency and not being indecent, the accused’s motive
important and if proved he can be convicted unless he had an innocent motive.

s 136 now states that a person who commits indecent assault against a girl child or a woman is liable
upon conviction to imprisonment for a term of not less than 15 years and not exceeding twenty
years.

S137 has two types of indecent assault. The first one is indecent assault which is unlawful and
indecent and the other one indecent assault arising or caused by curiosity. The unlawful and
indecent one is described as a felony where as the curiosity one is defined as an offense.

11.4 DEFILEMENT
S 138 talks about defilement. S 138 provides;

i) any person who unlawfully and carnally knows any child commits a felony and is liable, upon
conviction, to a term of imprisonment of not less than 15 years and may be liable to imprisonment
for life.

ii) any person who attempts to have unlawful carnal knowledge of any child commits a felony and is
liable, upon conviction, to imprisonment for a term of not less than 14 years and not exceeding
20years.

i) any person who prescribes the defilement of a child as a cure for an ailment commits a
felony and is liable, upon conviction, to imprisonment for a term of not less than 15 years
and may be liable to imprisonment for life.
According to section 138 a child is a person who is below the age of 16years. But how do you
reconcile this with a girl who is married. It is important to note that in the Zambian culture, a person

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under the age of 16 can get married. In this case s138 specifically states that the carnal knowledge
must be unlawful. So, if it is lawful, then the person cannot be charged with defilement. So if a man
of 60 years old is married to a girl of 15 years, the man cannot be charged with defilement so long as
all the requirements of a customary marriage have been met. In order for an offense to constitute
defilement; there must be sexual intercourse, with a girl, and the girl being under the age of 16years.

Activity

Lukundo who 14 years old has a sugar daddy by the name of Phiri. Lukundo is short of upkeep
money and initiates sex with Phiri in order to get money from Phiri. Lukundo and Phiri have sex
intercourse but Lukondo’s mother finds out about the incident. Can there be a charge against Phiri?

These days people are defiling children because they have been told or they believe that by sleeping
with children they are going to be HIV negative or get rich. S 138(3) specifically states that if
somebody prescribes defilement of a child as a cure they are also liable to imprisonment. This
means that if somebody has been convicted of defilement and maybe in their defence state that
they did it because somebody prescribed it as a cure, the courts or police are going to arrest that
person who prescribed defilement and if found guilty may be convicted to life.

What if a boy above the age of 12 years old is convicted of defilement, what happens? In such a
case the boy will be liable to community service or counselling as the court may determine.

Having carnal knowledge with an imbecile or person with mental illness.

S139 states that ‘any person who, knowing a child or other person to be an imbecile or person with a
mental illness, has or attempts to have unlawful carnal knowledge of that child or other person in
circumstances not amounting to rape, but which prove that the offender knew at the time of the
commission of the offence that the child or other person was an idiot or imbecile commits a felony
and is liable, upon conviction, to imprisonment for a term of not less than fourteen years and may be
liable to imprisonment for life.’ In this case, the accused must know that such a person is an
imbecile. If he does not know, he cannot be convicted.

Section 140 talks about procuring for the purposes of prostitution and pornography. Here it does not
matter whether it is an adult or a child the accused will still be convicted. Procurement can be
outside Zambia or inside. In such cases, there is need for corroboration. No person shall be convicted

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of an offense under this section upon the evidence of one witness only, unless such witness be
corroborated in some material particular by evidence implicating the accused.

S 141 talks about defilement by threats, or fraud or administering drugs. It states that ‘any person
who by threat or intimidation procures or attempts to procure any child or other person to have any
unlawful carnal knowledge, either in Zambia or elsewhere; by false pretence or false representation
procures any child or other person to have any unlawful carnal knowledge, either in Zambia or
elsewhere; applies, administers to, or causes to be taken by any child or other person any drug,
matter or thing, with intent to stupefy or overpower so as to thereby to enable any third party to
have unlawful carnal knowledge with such a child or other person; commits a felony. According to
English law, these offenses are not committed unless sexual intercourse actually takes place.
Persuading a girl to agree to have intercourse and to accompany a man for that purpose is not
‘procuring’ if the intercourse does not take place; but it is an attempt to procure. To procure
means to produce by endeavour. Proof that the threats or false pretences induced a person to
submit to sexual intercourse will inevitably establish this. There is a provision; provided that no
person shall be convicted of an offence under this section upon the evidence of one witness only,
unless such witness be corroborated in some material particular by evidence implicating the
accused. The offenses under this section are not strict liability offences. But the nature of ‘threat’ or
‘intimidation’ or ‘attempt’ requires proof according to standards of proof in criminal proceedings. In
para (c), the actus reas and mens rea must both be proved beyond reasonable doubt.

11.5 Sexual harassment

Read section 137 Sexual harassment has been defined in s137 A (3) (a) as a seductive sexual advance
being an unsolicited sexual comment, physical contact or other gesture of a sexual nature which one
finds objectionable or offensive or which causes discomfort in one’s studies or job and interferes
with academic performance or work performance or a conducive working or study environment. In
this case, it means that in proving ‘offensive, objectionable or discomfort’ the intention or
recklessness or negligence of the defendant will come into question.

S 177 A talks about engages a child in pornography.

12. OFFENCES AGAINST PROPERTY

The goal of this unit is to enable you demonstrate an understanding of offences against property.

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At the end of this unit, you will understand and be able to critique:

 the crime of theft

 the mental and conduct element of theft
 claim of right
 the crime of robbery
 burglary
 false pretences

12.1 THEFT
Found under s 264 of the PC and s 265. S 265 states that a person who fraudulently and without
claim of right takes anything capable of being stolen, or fraudulently converts to the use of any
person other than the general or special owner thereof anything capable of being stolen, is said to
steal that thing. The word ‘claim of right’ introduces honesty and without intention to defraud and
the negative of it is dishonest. According to Kulusika: p581, the word fraudulent may be taken to
mean that the taking must be intentional, without mistake and with knowledge that the thing
being taken belongs to another person.

THEFT BY FINDING

According to s 265 (4) when a thing converted has been lost and found by the person who converts
it, the conversion is not deemed to be fraudulent if at the time of the conversion the owner is not
known to the accused person and he believed on reasonable grounds that the owner cannot be
discovered.

What are the five elements of theft?

i) there must be something capable of being stolen (property)

ii) that thing must belong to another person;
iii) the accused must take and move the thing;
iv) the accused person must intend permanently to deprive another person of the thing; and
v) the accused person must act fraudulently

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What is the actus reus of the offence? The actus reus of theft has several elements. 1. Taking and
moving; it basically means to get something in one’s possession, or move something or get control of
something. This taking and moving must be done without the consent or knowledge of the owner
(Kulusika: 583). But what if the moving was done involving tricks or cheating? In this case the
complainant parted with his or her things by being fooled. The complainant could simply be described as
having consented unaware that the accused person was tricking or cheating him or her. The thing stolen
must be a tangible thing. What is a tangible thing? The taking itself must be factual and not fictional. It
needs also to be established that the taking and moving must coincide and is fraudulent.

Another important element which must be proved is that the thing was taken and moved, the accused
got possession without claim of right and carried away the thing. What is this claim of right? According
to the case of Mwachilama v The People (1972) ZR 287; the appellant was convicted in the High Court of
stock theft. His defense was that the six cattle in question had strayed onto his land and had eaten his
maize. In evidence he stated that he knew the cattle were not his, that he did not know the owner, but
that he had the right to keep and to sell them because they ate his maize. In claim of right, there may be
an honest belief, that the taker believed he had a right to the property or he may have an honest
belief that he had a claim of right against another and honestly believed he had a right to enforce his
claim or right to enforce his claim against another person’s property. Thus it is not necessary for the
claim to be valid nor (reasonable) indeed, as the authorities make clear, is it necessary for it even to be
reasonable; all that is required is that the belief in the validity of the claim be honestly held. But, of
course, if the alleged claim is unreasonable this may well be a factor to be taken into account by the
court in deciding whether it was honestly held. The appeal in this case was allowed.

R v Malamula (1962)R & N 550; the accused had hired an ox cart to a friend. The friend lost an inflator
pump. The friend paid the hiring charge but refused to pay compensation for the loss of the pump. The
accused openly took a bicycle belonging to the hirer as a security, stating an intention to return when the
claim was met. Accused was convicted of the theft of the bicycle. In this case it was held that the
expression ‘claim of right’ does not refer to actual legal right, it means belief in legal right. The case of
Boden best illustrates this; P’s father got some money from D’s friend. D met P and said to him ‘pay me
the eleven sovereigns you owe me’ and thereupon knocked him down. It was held that D could not be
convicted of assault with intent to rob, the claim of right negativing the intent to rob. This case illustrates
that a claim of right need not be a claim to present ownership or to a propriety right in a thing, it may be
a mere belief by the taker that his conduct was lawful in the circumstances. In the Boden’s case, the

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attacker could not have had any belief that the actual sovereigns in the assaulted man’s pocket belonged
to him. The most he could have entertained was an honest belief that the assaulted man owed him a
personal debt amounting to the value of eleven sovereigns. He was guilty of an assault only. For theft to
succeed the prosecution has to establish intent and absence of claim of right. The statute has the two
words ‘fraudulent and without claim of right’ what does it imply? The court thinks that ‘fraudulent does
add something to the words ‘without claim of right’ and we think it means that…that the taking must
be intentional and deliberate, that is to say, without mistake. You must know that you take the
property that is the property of another and that you are taking it deliberately, not by mistake and to
deprive the person of the property in it. This was according to the case of Williams. If a person
honestly believes he has a right to the property and the taking is in vindication or in exercise of a bona
fide claim of right, that person is not acting feloniously even if the taking is intentional and deliberate. In
another case, it was ruled that if P owed C money of which C can not get payment, and C’s servant D
obtains P’s property by false pretences in order to enable his master to compel him to pay the debt, D
cannot be convicted of theft. The claim of right, as opposed to actual right, was solely in respect of the
mode of bringing pressure to bear on the debtor. There are two aspects to the claim of right; an honest
belief in a jus in personam leading to an honest belief in a right to take the other party’s property even
by force, or by a ruse to enforce payment of the claim, however against the will of the owner. It was held
that he had a bona fide claim of right.

But what was different in the Muzyamba case (1975) ZR 83? A bull had strayed and was found amongst
the appellant’s herd. In his defence at first he claimed it was his bull, and then later qualified his earlier
contention by saying that the bull had destroyed some of his maize and he was keeping the bull until he
got compensation from the owner. He appealed against conviction for stock theft on the grounds that he
had a bonafide claim of right on the bull until he got compensation for the maize the bull destroyed.
Court held; the defence of bona fide claim of right made in good faith is not confined to those cases
where an accused person believes that the property in question was his or had become his; it is
applicable also in those cases when the accused has a bona fide belief that he has the right to keep or
deal with somebody else’s property. In this case, the defence of bona fide claim of right failed, because
the accused initially insisted that the bull was his.

If the thing is removed from the rightful owner or from the original place then there is theft. If
something is attached to immovable thing, it must first be removed before they can be any claim of
theft.

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2. A thing capable of being stolen; s 264 intends to provide a definition of what property is. It only states
that every inanimate things whatever which is the property of any person and which is movable, is
capable of being stolen.

3.Belonging to another; this in s 265 has been put as ‘which is the property of any person’. What
does this mean? It means that a thief may steal a thing capable of being stolen from any of the
following persons; the owner of the thing, the possessor of the thing; the person who is in charge
of the thing, or the person who is in physical control of the thing. Belonging to another does not
refer to ownership, but is should be understood as covering a situation where someone is in
possession of property or in control thereof. Because of this, it can be said that lost golf balls at the
golf courses belong to the gold course. Therefore since possession or control is not necessarily
lawful, a thief may have possession or control over property he has stolen from another. It simply
means that another thief can steal the property from the thief. Can an owner steal his own
property? The case of Turner (No. 2) (1971) 1 WLR 901 (CA) illustrates this; Turner took his car to a
garage to have it repaired. After the repairs were done, the car was left in the road outside the
garage. T called at the garage and told the proprietor that he would return the following day, pay
him, take the car; instead he took the car, using his spare key, without paying for the repairs. Later he
lied about the matter to the police. He was convicted of theft of the car. Appeal court held that; it is
sufficient if it is found that the person from whom the property is taken, or to use the words of the
Act, appropriated, was at the time in fact in possession or control. Appeal dismissed.

What is the mens rea of theft? There are two elements to this; there is fraudulent intent and
intention of permanent deprivation.

What does fraudulent intent imply? What does it mean when it comes to theft? Although the PC
provides some definition of the term fraudulently but it does not say much about its application
when it comes to theft. So here it means that the determination of ‘fraudulently’ must be put off
until and unless the issue relating to intention of permanent deprivation is resolved (Kulusika: Text,
Cases and Materials; Criminal law in Zambia: p586). The definition of fraudulently is in s 265(2). But
how do we determine whether there was fraudulent intent? In considering whether or not there
existed one of the fraudulent intents specified in s265 the simplest test may be to raise the question
as to the intention of the accused person at the time of taking or conversion.

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Intention of permanent deprivation, what does it mean? It does not necessarily mean that there
must be permanent deprivation of the owner. The requirement could be satisfied if it could be
shown that the accused person ‘has an intention indefinitely to exclude the victim from exercising
her right to property. The most essential feature of the requirement of intention of permanent
deprivation is that the thief intends to deprive the owner of his property permanently, by means of
keeping the property, disposing of it, destroying it, or hiding it so that it is not to be found. So, in
situations where goods were stolen but have since been returned to the owner, the person who took
the goods will still be convicted of theft. Even if the thief for one reason or another, changes his
mind, after stealing a thing belonging to another, and decides to return the thing to the place where
it was originally was located, that person will still be convicted of theft. What is this intention to
deprive? It is an ulterior intention. Therefore it accompanies the actus reus rather than directed
toward the actus reus itself. The requirement is not that the accused person intends to take and
move the thing which is capable of being stolen, but the act of taking and moving be done with
the further intent that the owner be deprived permanently, this was according to the case of
Morris.

What about taking money from the safe intending to return it later on, is it theft? According to
s265(2)(e), it will be regarded as theft to take money with the intention to return it later on. So if you
are maybe an accountant and you take money from your employers with the intention to return it
later on. You can be convicted of theft if such an act were uncovered, whether the equivalent of the
money was returned or not, the officer in question would be liable to prosecution for theft. It was
also held to be theft where a neighbour took a bottle of milk delivered and left at the neighbour’s
door-steps, intending to replace it later in the day. The neighbour who took the bottle of milk would
be convicted of theft, because of his intention of permanently to deprive his neighbour of his bottle
of milk.

Is consent a defense when it comes to theft? R v GOMEZ [1993] HOUSE OF LORDS; the facts of the
case are that the respondent, Gomez was employed as assistant manager at a shop trading by retail
in electrical goods. In September 1987 he was asked by an acquaintance called Jit Ballay to supply
goods from the shop and to accept payment by two stolen building society cheques, one for E7, 950
and the other for E9, 250, which were outdated and bore no payee’s name. The respondent agreed,
and prepared a list of goods to the value of E7, 950 which he submitted to the manager, Mr. Gilberd,
saying it represented a genuine order by one Johal and asking him to authorize the supply the supply

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of the goods in return for a building society cheque in that sum. Mr. Gilberd instructed the
responded to confirm with the bank that the cheque was acceptable, and the respondent later told
him that he had done so and that such a cheque was ‘as good as cash.’ Mr. Gilberd agreed to the
transaction, the respondent paid the cheque into the bank, and a few days later Ballay took
possession of the goods, the respondent helping him to load them into his vehicle. The other
consignment of goods to the value of E9,250 was ordered and supplied in a similar fashion. Later the
two cheques were returned by the bank marked ‘Orders not to pay. Stolen cheque.’ The respondent
was arrested on the charge of theft.

A question was then passed to the house of lords; when theft is alleged and that which is alleged to
be stolen passes to the defendant with the consent of the owner, but that consent has been
obtained by a false representation, has, (a) an appropriation within the meaning of s 1(1) of the
Theft Act 1968 taken place, or (b) must such a passing of property necessarily involve an element of
adverse [interference] with or usurpation of some right of the owner?

The court first looked into the facts of Lawrence and Morris cases and tried to reconcile the two. In
the Lawrence case, the appellant was convicted of theft in December 1969. On 1 st September, 1969 a
Mr. Occhi, an Italian who spoke very little English, arrived at Victoria station on his first visit to the
country. He went up to the taxi driver, the appellant, and showed him a piece of paper on which an
address in Ladbroke was written. The appellant said it was very far and very expensive. Mr. Occhi got
into the taxi, took E1 out of his wallet and gave it to the appellant who then, the wallet being still
open, took a further E6 out of it. He then drove Mr. Occhi to Ladbroke Grove. The correct lawful fare
for the journey was in the region of 10s. The appellant was charged with and convicted for the theft
of the E6. The conviction was upheld by the Court of Appeal, Criminal Division, which in granting
leave to appeal to the House of Lords posed the following questions; whether s 1(1) of the Theft Act,
1968, is to be construed as though it contained the words ‘without the consent of the owner’ or
words to that effect.

According to the House of Lords; the main contention of the appellant in this House and in the
Court of Appeal was that Mr. Occhi had consented to the taking of the E6 and that, consequently, his
conviction could not stand. In my opinion, the facts of this case to which I have referred fall far short
of establishing that Mr. Occhi had so consented. Prior to this Act, it was important to prove that theft
took place without the consent of the owner. That is no longer an ingredient of the offence. Theft
has now four elements; a dishonest, appropriation, of property belonging to another and with the

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intention of permanently depriving the owner of it. That there was appropriation in this case is
clear. That an appropriation was dishonest may be proved in a number of ways. In this case it was
not contended that the appellant had not acted dishonestly. S 2(1) provides that a person’s
appropriation of property belonging to another is not to be regarded as dishonest if he appropriates
the property in the belief that he would have the other’s consent if the other knew of the
appropriation and the circumstances of it. A person is not to be regarded as acting dishonestly if he
appropriates another’s property believing that with full knowledge of the circumstances that other
person has in fact agreed to the appropriation. The appellant, if he believed that Mr. Occhi, knowing
that E7 was far in excess of the legal fare, had nevertheless agreed to pay him that sum, could not be
said to have acted dishonestly in taking it. Belief or the absence of belief that the owner had with
such knowledge consented to the appropriation is relevant to the issue of dishonesty, not to the
question whether or not there has been an appropriation. That may even occur even though the
owner has permitted or consented to the property being taken. So proof that Mr. Occhi had
consented to the appropriation of E6 from his wallet without agreeing to paying a sum in excess of
the legal fare does not suffice to show that there was not dishonestly in this case. There was ample
evidence that there was. On property belong to another; counsel for the appellant contended that if
Mr. Occhi consented to the appellant taking the E6, he consented to the property in the money
passing from him to the appellant and that the appellant had not, therefore, appropriated property
belonging to another. I do not agree with this, a person who by any deception dishonestly obtains
property belonging to another with the intention of permanently depriving the other of it…commits
that offence. The short answer to this contention on behalf of the appellant is that the money in the
wallet which he appropriated belonged to another, to Mr. Occhi. There was no dispute about the
appellant’s intention being permanently to deprive Mr. Occhi of the money. The four elements of
theft have therefore been proved. Therefore each of the questions posed were answered in the
negative. This judgment contained two clear pronouncements, first that it is no longer an ingredient
of the offence of theft that the taking should be without the owner’s consent and, second, that an
appropriation may occur even though the owner has permitted or consented to the property being
taken.

A civil case of Dobson v General Accident Fire and Life Assurance was cited. In this case the conflict
between Lawrence and Morris case was decided but the court decided to apply the Lawrence case.
The facts were that the plaintiff had insured property with the defendant company against, inter alia,

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‘loss or damage caused by theft’. He advertised for the sale of a watch and ring at the total price of
E5,950. A thief telephoned expressing an interest in buying the articles and the plaintiff provisionally
agreed with him that the payment would be a building society cheque in the plaintiff’s favour. The
rogue called on the plaintiff the next day and the watch and the ring were handed over to him in
exchange for a building society cheque for the agreed amount. But he was later on told it was
worthless. The defendant company denied liability under its policy of insurance on the ground that
the loss of the watch and ring was not caused by theft within the meaning of the Act. The plaintiff
succeeded in the trial court and also on appeal. One of the arguments for the defendants was that
there had been no theft because the plaintiff had agreed to the transaction with the rogue and
reliance was placed on Lord Roskill’s statement in Morris which stated that appropriation involves
not an act expressly or impliedly authorized by the owner but an act by way of adverse interference
with or usurpation of those rights. According to this court it held that appropriation is against the
will of the owner and that dishonesty was common ground. I would have supposed that the question
in Lawrence’s case was where appropriation necessarily involved an absence of consent.

Activity

Mbenkele works as an accountant at the Ministry of health. He decides to borrow money from the
safe without permission from his superiors with the intention of replacing it at the end of the month.
Before the month end, his boss checks the safe but cannot find the money. What can Mbenkele be
convicted with?

Public Servant; Simango v The People; the applicant was convicted of theft by servant. He received
money and kept it to himself. The employer was alleged to be Zambezi River Transport a statutory
corporation. That corporation ceased to exist long before the offence was committed. His employer
was not the government. The offence of theft by servant consist of two ingredients; there must be
actual theft of money and the money must be stolen from an employer. The second ingredient not
proved, therefore convicted of theft.

Abandoned Property; R v Nicholas Vega. He was convicted of stealing sheets of corrugated iron
belonging to the government. The appellant admits that he took the sheets but he thought they
were abandoned. Court held, we think he acted in good faith, entirely innocently in the bona fide

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and reasonable belief that the old sheets had been abandoned by the government. Therefore he had
no mens rea for theft. The question to be asked is did the accused fraudulently take something
capable of being stolen? It is well established in law that ‘things of which ownership has been
abandoned are not capable of being stolen.

Theft by finding; Soko v R; the appellant went into the bush off a road near Ndola to look for
firewood and found wire lying there in which seemed to have been there for a long time. He left it
there but when he returned days later it was still there. The accused arranged with another person
to pick up the wire and sell it. As a result of the questions put to him at the scrap yard he took fright
and ran away. The owner of the wire could not be found. He was convicted of theft by finding. The
learned magistrate correctly said that there were two elements; belief that the owner cannot be
found and reasonable grounds for the belief.

Activity

Tumba is a waiter at manda hill. One of the customers leaves a phone and the table. Three days pass
by and there is no follow up from the owner, Tumba starts using it. Can he be convicted of theft?

12.2 FALSE PRETENCES

There are several offences in the Penal Code on obtaining something by false pretences. These include
obtaining property by false pretence (s306); obtaining pecuniary advantage by false pretence (s309A);
obtaining execution of a security by false pretence (s 310); obtaining anything capable of being stolen by
trick or device (s 311); obtaining credit or delivery of any charge on property (s 312); etc.

This offence is found under section 308 of the PC. It states that ‘any representation made by words,
writing or conduct, of a matter of fact or law, either past or present, including a representation as to the
present intentions of the person making the representation is false in fact, and which the person making
it knows to be false or does not believe to be true, is a false pretence.

But there are certain elements which must be proved in order for the conviction to stand;

i) there must be a representation made by words, writing or conduct;

ii) the representation made must be of a matter of fact or of law;

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iii) the matter of fact or law, must be either past or present;

iv) that the person making the representation knew it to be false, or did not believe it to be
true;
v) that there was an intent to defraud, though in many cases this may be inferred from the
circumstances; and
vi) that the change of ownership of the thing was actually induced by false pretence.

When it comes to false pretences, one cannot state that there were false pretences if the representation
is as to the future events. On the definition; false pretence by words or conduct. R v Silverman (1987) 86
Cr. App. R. 231 (CA) illustrates this. In this case, the accused gave excessively high quotations for repairs.
The victims were elderly and the accused had done some work for them previously. There was a kind of
mutual trust between these ladies and the accused. It was held that his silence raised the representation
that he would not make more than a reasonable profit, when in fact it was excessive. On false pretence
by conduct or implied representation. DPP v Ray (1974) AC 370 illustrates this. The accused went to a
restaurant with his friends for a meal. By ordering a meal he implied that he has money to pay for the
meal. There was a continuing false pretence as to the accused’s intentions. The waiter would not have
taken the order if he knew that the accused person did not intend to pay. When the waiter left the room
the accused’s false pretence was present. When it comes to false pretence does not only cover
intentional false pretences, but also reckless misrepresentation. False pretence does not need to be
planned or made deliberately. False pretence at the moment of need will suffice. When it comes to false
pretences, the victim must be deceived. If the victim is not deceived there cannot be any false pretences.

PUNISHMENT; s 309; any person who, by any false pretence and with intent to defraud, obtains from any
other person anything capable of being stolen, induces any other person to deliver to any person
anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three
years. This section therefore requires the prosecution to establish false pretence in addition to intent to
defraud (dishonesty) and the necessary causal link between the obtaining and the false pretence and
intent to defraud, framing of charges or information is very crucial to secure a conviction.

What is the actus reus of false pretences? There are actually four elements; the accused person must
obtain; a thing capable of being stolen, the thing must belong to another and by false pretence (and
intent to defraud). Under the last element, please note that all the elements under false pretence will
come in. In the first element, obtains means ownership, possession or control of it. It is to be noted that

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anyone of these will be considered as sufficiently constituting an obtaining. This may mean that the
physical control of a thing without ownership will satisfy the requirement of the actus reus above.

S 309 refers to ‘any person’; this would be satisfied, where the accused person deceived (or induced) the
victim to deliver goods to his friend. The accused person, in this case, would have obtained goods on
behalf of his friend.

What is the mens rea? There must be deliberation or recklessness, on the part of the accused, in regard
to false pretence and intent to defraud; ii) fraudulence (or dishonesty) in regard to the obtaining; iii) the
obtaining must be with the intention of permanent deprivation of the victim of the property.

Activity

What are the conditions for false pretences?

12.3 OBTAINING PECUNIARY ADVANTAGE BY FALSE PRETENCES

S 309 A of the PC states that ‘any person who, by false pretence, dishonestly obtains for himself or
another any pecuniary advantage, is guilty of a misdemeanour and is liable to imprisonment for five
years. The cases in which a pecuniary advantage within the meaning of this section is to be regarded as
obtained for a person are cases where;

a) any debt or charge for which he makes himself liable of is or may become liable (including one not
legally enforceable) is reduced or in whole or in part evaded or deferred; or

b) he is allowed to borrow by way of overdraft, or to take out any policy of insurance or annuity contract,
or obtains an improvement of the terms on which he is allowed to do so;

c) he is given the opportunity to earn remuneration or greater remuneration in an office or employment,

or to win money by betting.

What is pecuniary advantage? The ordinary meaning of pecuniary advantage is some kind of monetary
advantage or benefit.

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Does it mean that this section covers all instances where somebody obtains money by false pretences?
No. The definition of pecuniary advantage in s 309 A(b) and (c) clarifies the matter. Under this section, it
is not necessary to prove that the accused did actually obtain a pecuniary advantage. It is also not a
requirement that the victim so deceived should have suffered a financial loss.

What is the actus reus? a) there must be false pretence, b) the accused person obtains for him/herself
or another person; and c) pecuniary advantage. Pecuniary advantage is defined in s 309 A (b) and (c).

What is the mens rea? a) deliberately or recklessness in respect of the false pretence; and b) dishonesty
in respect of obtaining.

Obtaining property; Sharma v The People (1969) ZR 91 (HC). The facts are that the appellant falsely
pretended that he was D Clack, the designated payee of a certain cheque. The evidence was that an
open cheque was presented to the bank employee. There was no evidence that the appellant either
expressly or by conduct held out that he was D Clack. The prosecution must prove the making of the
pretence as laid in the charge, and any variation in substance between the pretence laid and that proved
is fatal. Appeal allowed.

Wilson Makasa Kapasa v The People (1980) ZR 114; the facts of the case were that the appellant was
convicted on two counts of obtaining money by false pretences. In the first instance he obtained a K10
note by pretending that he could show someone the person who wanted to kill him when in fact he was
not able to do so and obtained K30 in similar circumstances. He told these people that the money would
be returned to them after he had performed the magic. He pretended to return the money but in actual
fact he concealed it and only returned worthless pieces of paper. He appealed against both convictions
and the sentence. On appeal it was held that the complainants did not intend to part with ownership of
the two sums of money, it therefore follows that this was a case of theft. But in this case the magistrate
was of a view that he cannot convict him of theft, it being a higher offence. When it went to the
Supreme Court, it was stated that the magistrate misdirected himself. Under s 188(2) of the Criminal
Procedure Code it is specifically provided that, when a person is charged with obtaining anything capable
of being stolen by false pretences with intent to defraud and it is proved that he stole the thing, he may
be convicted of the offence of stealing even though he was not charged with it. Appellant was convicted
of theft.

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REPRESENTATION AS TO FUTURE MATTERS; Sinyinza v The People (1972) ZR 218 (HC). The appellant was
charged with the offence of obtaining goods by false pretences. The facts were that the appellant with
intent to defraud obtained two loud speakers and one record deck altogether valued at K1, 817 by falsely
pretending that he was going to pay for the goods on the following day when he did not. Court held, in
the present case the matter of fact alleged was as to the future since the particulars state that he
appellant’s representation was to the effect the he would, that is in the future, pay for the property he
obtained. Because of that simple rule of law I find that the conviction here cannot be allowed to stand,
the charge on which it is based is bad in law.

In R v Ghosh [1982] QB 2053, G a consultant surgeon, obtained money by falsely pretending that the
money owed as an anaesthetists’ fee. He was convicted of dishonestly obtaining money by deception.
The court went on to look at the definition of dishonest. It was held that there are two tests, one is
objective and then after that you go to the subjective test. If the mind of the accused is honest, it cannot
be deemed dishonest merely because members of the jury would have regarded it as dishonest to
embark on that course of conduct. An example was given whereby if a person comes from a person
where they do not pay bus fares but comes maybe to a place where they do so and he does not pay.

DISTICTION BETWEEN THEFT AND FALSE PRETENCES

Rv Chungu )1954) 5 NRLR 681; the prisoner agreed to purchase fish from the complainant. He told the
complainant that he had E10 in his hut. They agreed that the complaint should give the prisoner E3 as
change. In fact, the complainant gave him E3 10s by mistake, but the prisoner never gave him the E10
and disappeared with the same. He was convicted of theft by trick. This offence closely resembles the
offence of obtaining by means of a fraudulent trick, namely false pretences and cheating. In the offence
of theft, the owner of the thing stolen has no intention to part with his property therein to the person
taking it; in false pretences, the owner does intend to part with his property in the money or chattel, but
it is obtained from him by fraud. It was held that the complainant parted with the money because of the
false representation by the accused as to the money which he had. Accused found guilty of cheating by
false pretences, to the amount of E3.

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12.3 ROBERRY
Robbery is basically theft accompanied by an assault. The assault can be technical as well as physical. In
order to convict someone of robbery, all the elements of theft must be proved. If a person believed that
they had a legal right in property, they cannot be convicted of robbery. S292 of the PC states, any person
who steals anything, at or immediately before or immediately after the time of stealing it, uses or
threatens to use actual violence to any person or property to obtain or retain the thing stolen or to
prevent or overcome resistance to its being stolen or retained, is guilty of the felony of robbery and is
liable on conviction to imprisonment for 14 years.

The elements of robbery are that there must be theft which must be accompanied by force or threats to
use actual violence which must occur at or immediately after the time of stealing. It must be directed to
any person or any property where the violence is used or threatened to be used in order to commit
theft, to obtain or retain the property stolen or to prevent or to overcome resistance to its being stolen
or retained. Under s 292 the use of or threat of violence must not only be for stealing, but also for
retaining the thing stolen or to prevent or to overcome resistance to its being stolen or retained. It is not
clear whether this is an additional element apart from the use of or threat of violence which must
coincide with the act of stealing. Since this is tied to the requirement of ‘at or immediately before or
immediately after the time of stealing.’

What is the actus reus? The actus reus of robbery are the elements mentioned above. But if there is no
theft then a person will just be charged with assault. What is the mens rea? There must be violence
which must be applied intentionally or at least recklessly. The accused must also be proved to be aware
that he had used or threatened to use violence to any person or to any property.

One of the elements of a crime is that there must be actual violence, what does this mean? Does it
mean slight or major violence? The PC states that there should be a threat to use actual violence. This
means that actual violence is not required. This same violence need not to be applied to the owner of
the property or victim of theft. Violence to a third party will suffice.

What does the statement that actual violence must be applied or threatened to be applied at or
immediately before or immediately after the time of stealing raises the question of time-frame. In
Gathuri Njuguna v Republic (1965) EA 583; it was held that the propriety of the conviction for robbery
with violence depends upon whether or not the violence was used ‘immediately after’ the articles were

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stolen. The essence of the offence of robbery is an openly committed theft from or in the presence of
someone or a theft where the offender is caught more or less in that act or immediately after the act.

Actual violence on a person; Mugala v The People (1975) ZR 282 (SC); The appellant was convicted of
aggravated robbery. The prosecution case against him was that he attacked a night watchman at a farm
and hit him on the head with an iron bar and he also broke some windows in the farmhouse and stole six
curtains and tow mattresses valued at K93. The accused agreed to the charge but stated that he only did
so because the owner of the property owed him money. It was held the accused thought he had a claim
of right to take the property. He was convicted of assault occasioning actual bodily harm.

Haonga and others v The People (1976) ZR 200; the appellants were convicted of the murder of a
farmer, who was shot and killed during an armed robbery carried out by five men. The appellants were
identified by one witness as the occupants of a car which had been involved in an accident some three
hours before the time of the murder; two of the appellants were identified, each by one witness, as
having been among the five robbers, and a third was found some weeks later in possession of a firearm
from which the fatal shots were proved to have been fired. Witnesses stated that five men attacked the
deceased when he arrived at the farm in his car. A dog tried to come to the aid of the farmer and at that
point one of the assailants pulled a firearm from his jacket and shot the dog. He then shot the deceased.
The assailants escaped in the car. The evidence as to who fired the shots was conflicting, and the
prosecution conceded that the case must proceed on the basis that it was not known who fired them.

There was no evidence placing the third and fourth appellants at the scene of the crime and so their
appeals were allowed. The cases of the first, second and fifth appellants stand on a different footing;
they turn on the question of common purpose. In the trial court, the trial judge found as a fact that the
first appellant was the man who pulled the firearm from his jacket and shot and killed the deceased. The
decision was arrived at on the basis of statements made to the police by his fellow co- accused. But the
trial judge misdirected himself in using them as evidence against the first appellant; it is trite law that an
outside the court statement by one co-accused is not admissible as evidence against another. In this
case the prosecution argued that the whole group should be convicted of murder because of the
common purpose. It was submitted that once it is proved that five persons were engaged together in the
commission of a felony and someone is killed then all are guilty of murder. We can see the force of this
submission in a case where the death results from the kind of act which was part of the common design.
Suppose for instance a gang in planning a robbery at a place where a night watchman is known to be
employed agree to incapacitate the watchman and to gag him in order to prevent his raising the alarm;

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and suppose that the watchman dies as a result. It seems to us that if this be murder in one then it is
murder in all. But the authorities are clear that where death results from an act of one of a gang which
went beyond the common design to which the others were parties those others cannot be convicted of
the offence of which the one is guilty. But where two or more people are known to have been present at
the scene of an offence and one of those people must have committed it but it is not known which one,
they must all be acquitted of the offence unless it is proved that they acted with the common design.
The trio convicted of aggravated robbery.

Actual violence on person or property; Mwape v The People (1976) ZR 160; the appellants, together
with other persons, broke into the ZNBC shop in Mporokoso, blew up the safe, obtained a large amount
of money contained therein together with other goods. It was alleged that they attacked the security
guard, stabbing him in the leg and generally using violence on him in order to execute their objective.
The appellant was convicted of aggravated robbery from the confession he gave which was accepted by
the court. The question before the court was whether or not the appellant was guilty of the crime or
some other offence since he claimed to have acted as a driver and did not assault the night watchman
but remained in the car. The offence of aggravated robbery was committed. The matter that must be
considered is whether the appellant and his associates had formed a common intention to commit the
offence of aggravated robbery. In law a participation which is the result of a concerted design to commit
a specific offence is sufficient to render the participant the principal. S 22 of the PC. In the case of
Mutambo v The People, it was held that to bring a person under s 22 as being guilty of an offence, the
following facts must have been proved against him beyond reasonable doubt;

i) that two or more persons, of whom the appellant was one, each formed an intention to
prosecute the common purpose in conjunction with the other or others.
ii) That the common purpose was unlawful.
iii) That the parties, or some of them, including the appellant, commenced or joined in the
prosecution of the common purpose.
iv) That, in the course of prosecuting the common purpose one or more of the participants
murdered a person.

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As can be seen from the appellant’s confession it is quite clear that the expedition was to break into the
ZNBC shop and to steal propert. That was obviously the common purpose to which the appellant was a
party. The offence of violence against the night watch man which was committed by the appellant’s
confederates was not a probable consequence of the prosecution of the common purpose. It has,
however, been argued by counsel for the respondent that the use of violence against the property of
ZNBC shop was an element of the offence of aggravated robbery. According to our Penal Code; violence
to property alone without inducing fear in the mind of the person having charge of or in any way
connected with such property cannot amount to robbery. Therefore the appellant is convicted of store
breaking and theft.

Ordinary Aggravated robbery; Jonas Nkumba v The People(1983) ZR 103; the appellant was sentenced
to death in consequence of his conviction on a charge of aggravated robbery involving the use of the fire
arm. The facts of the case were that a group of five bandits staged a robbery at the complainants’
house. Some were dressed in police uniforms while the rest were wearing army uniforms. After holding
up and terrorizing the complainants and their servants, the men made off with a quantity of property
and cash as well as a vehicle belonging to the complaints. The men were alleged to have been armed
with guns. None of the eye witnesses could identify the appellant. But as a result of the report received
by the police, the appellant was apprehended the very next day after the robbery. The appellant led the
police to his wife and things that were reported stolen were found there. The appellant also argued that
being found in possession of stolen property does not exactly mean that person has stolen the property.
The court held that while that statement was correct, nonetheless, that possession in this case was so
recent that there could have been no opportunity for transfer of the property from another person to
the appellant. Therefore the appellant was involved. On being armed with guns, there was no evidence
that there were guns involved or that the guns were fired. The guns may have been imitation because
they were not tested to be firearms within the meaning of the Firearms Act. Therefore it would be
unsafe to uphold a conviction on a charge of armed aggravated robbery. Appeal allowed but convicted of
aggravated robbery.

Activity

Mulenga goes to Ntumba and demanded that Ntumba pays him back his money. He had a machete with
him to execute his demand. Has Mulenga committed any offence?

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12.4 AGGRAVATED ROBBERY

Robbery is theft aggravated by the use of or threat of actual violence. But the PC penalizes another type
of robbery which is aggravated by the use of ‘any offensive weapon or instrument’ and therefore
described as aggravated robbery. In order to convict an accused person under s 294, the elements of
theft must be established, the elements of robbery under s 292 must be proved beyond reasonable
doubt, in addition to either;

i) that the person was armed with any offensive weapon or instrument, or
ii) the accused person with one person or more, whether or not armed with any offensive
weapon or instrument steals anything.

The sentence is life imprisonment and the minimum is fifteen years.

Penalty for aggravated robbery is mandatory death sentence where the offensive weapon or instrument
used is a firearm or grievous harm is done to any person in the course of the offence. But there are
some defences which a person can raise; these must be proved on a balance of probabilities;

i) that he or she was not armed with a firearm;

ii) that he or she was not aware that any of the other persons involved in committing the
offence was armed;
iii) the he or she disassociated him, or herself from the offence immediately on becoming so
aware. It is not clear whether the ‘dissociation’ should amount to unequivocal withdrawal,
or being absence at the time of the commission of the offence, or doing something to
prevent the use of a firearm, or standing by and saying that the others should desist from
using a firearm; and
iv) that the accused person neither contemplated nor could reasonably have contemplated that
grievous harm might be inflicted in the course of the offence.

What is an offensive weapon under this section; according to John Timothy and Feston Mwamba v The
People, (1977) ZR 394, the supreme court considering the issue relating to proof as to the use of firearm
said; to establish an offence under s 294(2) which carries the death penalty, the prosecution must prove
that the weapon used was a firearm with the meaning of the Firearms Act, that is to say that it was

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lethal barreled weapon from which a shot could be discharged or which could be adapted for the
discharge of a shot. As regards disassociation, the prosecution case that a firearm was used in this
aggravated robbery and that the first appellant must have known about it and did not dissociate himself
from the use of such firearm has therefore been established.

In the case of Kanyama (1974) SC , the court had to determine whether or not it was necessary that the
person subjected to actual violence should be the immediate custodian of the thing stolen. The court
held that; it is unnecessary for the person (against whom the violence is used) to be the immediate
custodian of the thing stolen; it is sufficient if, in the words of s 294 the violence is used or threatened to
obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

In the case of Mwape (1976) ZR 160, the question was whether violence to property was sufficient to
result in conviction, or whether something more is required, such as putting the person who is the
immediate custodian of the thing stolen in fear. The court held: in this country the reference to property
in s 294 must be looked at in the light of the above authorities. In our view violence to property alone
without inducing fear in the mind of the person having charge of or in any way connected with such
property cannot amount to (aggravated robbery). In the case before us, the blowing up of the safe was
not calculated to induce fear in any person; the appellant had no common intent to harm the watch man
and consequently he cannot be guilty of aggravated robbery.

Francis Chongo, Peter Ngosa Makola v The People SCZ Judgement No. 10 of 1998; the appellants who
were charged with armed robbery and convicted of the same, were sentenced to life imprisonment. The
two appellants whilst acting together with unknown person and whilst armed with a firearm, robbed
Funny Mwale’s various items all valued at K197,000.00 and used violence at the time of the robbery.
According to her, some intruders broke into her house whilst she was sleeping and demanded money.
They were armed and threatened to shoot her. They then collected the items. As the intruders were
leaving the house, she shouted for help. One witness heard her and chased the two appellants;
according to the witnesses they heard gunshots while chasing the appellants. According to the learned
trial Judge, the robbery and the use of the firearm was not in dispute. It was the identity of the accused
that was in dispute. He found that the victims’ evidence on identity of the robbers in the house was
doubtful; but that the evidence of possession of the mattress by the appellant supported the doubtful
evidence of identification. When the case went on appeal, it was held that there was no evidence that
guns were used. It was held that even toy guns could make noise. On extenuating circumstances, it was
stated that they could only apply when it come to murder cases and not any other case. Therefore

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conviction for armed aggravated robbery was quashed and thereby substituted for ordinary aggravated
robbery.

12.5 BURGLARY AND HOUSE-BREAKING

S 300 provides a clear definition of the circumstances which, if done, would constitute the offence of
‘house breaking’ in general, which covers the offence of ‘burglary’ which is committed at night. Entry
does not mean that the accused physically enter the house, it may be a situation whereby he is outside
but he is using a thing such as a wire to gain entrance into a house. Also gaining entrance into a building
of whatever description by threat or artifice, or by collision with another in the building, or through any
chimney is deemed to have broken and entered the building.

Based on the definition in s 300, house breaking or burglary may be committed by;

i) by breaking and entering a building or part of a building,

ii) as a trespasser, as provided for under s 306,
iii) with intent to commit a felony ( rape, theft, grievous harm) according to s 301,
iv) or having entered perhaps lawfully commits a felony and breaks out; this requirement is
intended to deal with those who lawfully enter a building, i.e by invitation but venture into
another part of the building where they are not allowed to, or over-stay their welcome
and/or commit a felony, e.g theft and make an attempt to escape from the building. This
according to s 301, constitutes breaking out.

The offences alluded to are of two types; offences committed at the time of entry and offences
committed inside the building or part of the building. These two types of offences are contained in s 301
but are clarified in s302-304.

The elements for the first type of the offence, offences committed at the time of entry are;

i) entry
ii) knowingly or recklessly as a trespasser;
iii) into a building (i.e dwelling house) or part of the building; and
iv) with intent, at the time of entry, to commit a felony.

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The elements for the second type of the offence, offences committed inside the building or part of the
building are;

i) entry (by the accused),

ii) knowingly or recklessly as a trespasser;
iii) into a building or part of a building; and
iv) having entered, with intent to commit a felony, or while in the building, the accused
commits a felony.

Fanwell v R (1959) R & N 81 Fanwell; together with Musonda, were found in possession of recently
stolen clothes. The property was stolen from a room in the mine compound which had been broken into.
From the evidence it was shown that on the night of the theft the two went to a friend’s house with
stolen clothes valued at E25. The next day Musonda was found wearing articles of stolen clothing, and
Fanwell sold a stolen shirt. The rest of the clothes were found in Fanwell’s house. In his defense Fanwell
accused Musonda of the theft. They were both convicted of house-breaking and theft. If one is found in
possession of recent stolen goods, the inference may be drawn not must. The inference must be the only
reasonable inference. And if an explanation is given, because guilt is a matter of inference, there cannot
be conviction if the explanation might reasonably be true, for then guilt is not the only reasonable
inference. In this case, Fanwell was in possession of recently stolen goods and could not give an identity
of the person from whom he bought the goods from. The only reasonable inference, and one which I
think must be drawn, was that he was a party to the house breaking and theft.

Definition of a dwelling house; Mumba v The People (1971) ZR 125; it must be a building or a structure
or part of a building or structure which is for the time being kept by the owner or occupier for the
residence therein of himself, his family or servants or any of them, and it is immaterial that it is from
time to time uninhabited.

Punishment; you have to look at the different sections on burglary and house breaking.

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What is the actus reas? There must be an

i) entrance either of any part of D’s body within the building or the insertion of an instrument.
According to the case of Brown [1985] Crim LR 212, CA it was held that the entrance must be
effective. Therefore the entrance must have been affected.
ii) As a trespasser; it has been held that any intentional, reckless or negligent entry into a
building is a trespass if the building is in fact in the possession of another who does not
consent to the entry. In R v Collins [1972] All ER 1105, this guy was invited by a girl who
thought it was her boyfriend. She saw a naked person outside her window sill and thought
that it was her boyfriend. He was invited in. D’s conviction for burglary (entering as a
trespasser with intent to commit rape) was quashed. Why? The court was of the view that
the appeal should be allowed on the basis that the jury were never invited to consider the
vital question whether this young man did enter the premises as a trespasser, that is to say
knowing perfectly well that he had no invitation to enter or reckless of whether or not his
entry was with permission. In the case of R v Jones, R v Smith [1976] 3 All ER 54 Court of
Appeal, Criminal Division. Two TV sets were removed in the early hours of the morning for
the home of a Mr. A . Smith without his knowledge or consent. The sets were later on found
in the homes of Alfred Smith his son and his friend John Jones. At their trial for burglary
Alfred Smith said that Christopher would not be a trespasser in his house any time. The
appellants were convicted of burglary. Counsel for the appellants urged that a person who
has been given permission to enter the premises could not be convicted of assault. He stated
that a son whose father has given him permission to enter the house cannot be a trespasser
if he enters it even though he had decided in his mind before making the entry that he was
going to still something. This court held that they would be a trespass if a person enters the
premises knowing that he is entering in excess of the permission that has been given to him
to enter, or being reckless whether he is entering in excess of the permission that has been
given to him to enter, providing the facts are known to the accused which enable him to
realize that he is acting in excess of the permission given or that he is acting recklessly as to
whether he exceeds that permission, then that is sufficient for the jury to decide that he is in
fact a trespasser. Appealed therefore dismissed.
iii) In any building or part of the building; To qualify as a building the structure must have some
degree of permanence. The outer buildings of a house are also considered to be buildings so

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are farm buildings. Atleast structures such as dwellings, shops, factories, school-houses ,
offices, shed, garages should constitute buildings for the purposes of house-breaking, store-
breaking etc. When it comes to part of the building, A may enter a house and stays in the
living room hiding from the occupiers. If he is not intending to steal from the living room but
he intends to steal from the bedroom, then that is not burglary although he was trespassing.
It will only be burglary when he gets to the bedroom. Even if the accused person was
authorized to enter a building, if he strays into part of the building where he was not
permitted, his being inside that part becomes trespasser. Mohamed S/0 Issa v R (1962) EA
392, a visitor who, without consent of the host, goes into a room where he is not authorized
to enter, and takes and moves a thing from that room, ‘part of a building’ will have
committed ‘house breaking’ or burglary because he entered that room as a trespasser and
committed a felony, namely theft. In this case, he was in the house with the consent of the
owner but then he broke into another room and stole some items. The appellant was found
in possession of the goods stolen, but there was no evidence as to how the appellant
effected an entrance from the rest of the house into the unlocked room. There was evidence
that maybe he climbed over a partition wall. But the court held that breaking in does not
involve the climbing over of a partition wall. In this case he was not convicted of
housebreaking but was convicted of being in a building used as a human dwelling place with
intent to commit a felony contrary to s295 of the PC
iv) With intent to commit a felony.
Having stated the actus reus, what is the mens rea?

i) there must be intention to enter as a trespasser; the accused must be proved to know (or be
reckless as to) the facts which constitute him as a trespasser.
ii) ulterior motive; it must be shown that
a) either entered with intent to steal or to inflict grievous harm, or to commit rape, or to do
unlawful damage to the building or anything therein, or
b) entered and committed, or attempted to commit, the offence of stealing or of inflicting grievous
bodily harm.
Fatyela v The People(1966) ZR 135 (HC); the appellant appeared before a subordinate court along with
two others jointly charged with burglary and theft. They all pleaded not guilty, but the two other accused
escaped from prison and the appellant stood trial alone. He was convicted of burglary and not of theft.

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He is appealing against both conviction and sentence. The dwelling house in question was inhabited and
looked after by servants. One of these, a Mr. Daka testified that he closed the house at about 6p.m but
when he returned the following day at 7 am the door lock was broken and that variety of articles as
detailed in the charge were missing. Night is defined in s 15 of the PC as being the interval between 7
o’clock in the evening and 6 o’clock in the morning. The prosecution has not excluded the possibility
that the breaking occurred between 6p.m on the 24 th or between 6 a.m and 7a.m on the 25 th. It was
therefore not proved that the house was burglared, but merely that it was broken into. During police
interrogations the appellant confessed to the taking of property, and during his trial the magistrate used
the confession as a basis for conviction. He also looked at another case where the accused was involved
but was acquitted. When it went on appeal, it was held that the court is not allowed to look into the
records of the previous cases and therefore allowed the appeal. This is so because it was stated that the
magistrate believed the evidence but it is impossible to be certain that he would have done so if the
confession had not been admitted.

Burglary distinguished; Gathuri Njuguna v Republic: the complainant left home at 7a.m having locked
and secured it. On his return from work at 9 p.m. he saw the accused carrying a bundle and coming from
the direction of his home. When the complainant got home, he found the house had been burgled, so he
alerted neighbours and chased the accused. They apprehended him, but not before the accused
attempted to resist by hitting the complainant with a club. The magistrate found him guilty of robbery
with violence. He appealed. It was held; the essence of the offence of robbery is an openly committed
theft from or in the presence of someone or a theft where the offender is caught more or less
immediately after the act. We do not think it extends to a case as this where the offence was committed
without discovery or chase until after the offender had left the premises and had proceeded so far on his
way as he had in this case without being discovered to be the thief. Therefore convicted of burglary and
theft.

12.6 STOLEN PROPERTY

See s 318 -320 of the PC.

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S 318(1) deals with cases where the accused received or retained goods he knew or had reasonable
cause to believe that the goods were stolen goods. That is, goods which were stolen through theft, or
robbery, burglary, extortion or other means of threat or intimidation. S 318(2) deals with goods subject
of a criminal act such as obtaining goods by false pretences, or by fraudulent trick, or by finding which
involves fraudulently taking or converting the thing found.

S 319 deals with cases where the accused person is found in possession of certain property, which is
suspected of having been stolen, but he was unable to account as to how he came by those goods. In
such cases the evidential burden is on the accused.

S 320 deals with offences committed outside Zambia, but the goods stolen or the proceeds of crime
were received or retained by the accused within Zambia. Indirectly this involves cross-border crimes or
global crimes.

What is the actus reus? There are two elements that make up the actus reus?

i) that the accused person receives or retains goods; and

ii) the goods were stolen (or must be stolen goods).
What is the mens rea? It consists in

i) the accused person knowing or having reasonable cause to believe the goods were stolen or
fraudulently or dishonestly obtained; and
ii) fraudulence (or dishonesty)

There are certain concepts that need to be explained. These are;

Receiving; it means the accused person acquires possession or control over the stolen goods from
another. Once there is control and possession, the receiving is complete. (Kulusika P. 608).The accused
may receive the goods alone or jointly with others. Here a temporary possession will suffice, such as
receiving stolen goods for hiding until the dust settles. To establish possession, it must be shown;

i) that the goods are either in the accused’s immediate physical custody, or located at a place
over which the accused has control, and
ii) a mental element, the intent by the accused to possess the goods.

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Chizema v The People (1972) ZR 7; the appellant was convicted in the Subordinate Court of the First
Class for the Chingola District of the offence of being in possession of property suspected to have been
stolen contrary to s 287 (a) of the PC. The appellant pleaded guilty to this charge and in his plea
indicated that he received the goods knowing them to be stolen. He appealed against the sentence.

The trial magistrate purported to convict him on a plea of guilty. In his plea this is what the appellant
said, ‘I understand, the trousers and dresses belonged to Peter Mbango. He stole them. He is now in
prison. I knew the goods were stolen. I was going to sell the goods to get some money. On a proper
construction this is a plea to receiving stolen property and should not have been accepted as a plea to
the offence of being in possession of property reasonably suspected of having been stolen. There is no
provision in our law to the effect that if a man is charged with the offence of being in possession of
property, contrary to s 287 of the PC he can be convicted of the offence of receiving stolen property
contrary to s 286. Conviction and sentence quashed. A retrial ordered.

Retaining; to retain is to keep possession of, not losing, possession of the goods, or continuing to have
the goods. If he finds out that the property was stolen and remains inactive, he will be adjudged as to
have dishonestly retained the stolen property.

Lazarous Kantukomwe v The People (1981) ZR 125; the appellant was convicted of the theft of a motor
vehicle. The evidence of the prosecution was to the effect that a vehicle stolen from the complainant,
and the complainant’s friend saw the stolen vehicle with the appellant sitting in the driver’s seat. Whilst
the friend, who was a prosecution witness, was watching the vehicle he saw the appellant come out of
the vehicle and attempt to stick a piece of paper over the registration license on the windscreen. This
prosecution witness then arranged for the arrest of the appellant.

The appellant has quite properly indicated that the trial magistrate relied on a statement by a co-
accused, and also a confession statement made by the appellant himself without first asking the
appellant whether he objected to the admission of that statement. This is a very valid ground for appeal
and in order for the conviction to stand, it would be necessary for this court to apply the provisio to s 15
(1) of the Supreme court Act.

Having regard to the fact that the learned trial magistrate accepted the evidence of PW2 who actually
saw the accused sitting in the driver’s seat of the stolen vehicle, we are quite satisfied that, despite the

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misdirection by the magistrate, any reasonable court must have convicted the accused. When a person is
found in possession of recent stolen property, it is the duty of the trial court to consider whether the
only reasonable inference is that person stole the item in question. It is the duty of the court to consider
whether there was another explanation for the appellant being in possession of the stolen property. In
this case, it is quite possible that the appellant did not steal the motor vehicle, but it is certainly clear
that he was in possession of stolen property and should properly be convicted of receiving stolen
property knowing it to be stolen.

Retaining stolen property;

R v Kanwa [1982] 2 All ER 529; K’s husband brought home stolen goods. K, knowing them to be stolen,
used them to furnish the house. Later, she told lies to the police officers about the goods in order to
persuade them that they were not stolen. She was convicted of handling stolen goods by dishonestly
assisting in their retention, and appealed. It has been held that merely using stolen goods in the
possession of another does not constitute the offence of assisting in their retention. To constitute the
offence, something must be done by the offender, and done intentionally and dishonestly, for the
purpose of enabling the goods to be retained. Such conduct must be done knowing or believing the
goods to be stolen and done dishonestly and for the benefit of another, amount to handling stolen goods
by assisting in their retention. It was held that she misled the police officer who had come to get the
goods and misrepresented the identity of the goods which she knew or believed to be stolen. Appeal
dismissed.

Stolen Property: any property which was a subject of stealing (theft) is stolen property. S 300(2) extends
the meaning of ‘stolen’ by providing that goods are stolen where the same are obtained by false
pretences (i.e have been unlawfully taken, obtained, converted, or disposed of). The prosecution does
not need to prove the identity of the person who actually committed the offence (e.g theft) or the owner
of the property. What is crucial is that the property must be proved to be stolen.(Kulusika: p.608)

Knowledge and belief; s 318 requires that at the time of receiving or retaining the stolen property the
accused person must know or have reasonable cause to believe that the property was stolen. Suspicion
is not sufficient.

Dishonestly; when it comes to hard cases or boarder line cases, it is important to determine whether or
not the accused person acted dishonestly when receiving or retaining the goods he knew or has
reasonable believe that the goods were stolen.(Kulusika:p 610)

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Doctrine of recent possession; The People v Chabala (1969) ZR 66 (HC); the accused was found on a
road carrying a paper bag containing a blouse believed to have been stolen from Jeune Boutique. The
following day, the police showed the blouse to the manager of the store who identified it as the property
of the store. The accused was convicted of theft on the doctrine of recent possession. The doctrine is
briefly that where an accused is found in possession of property proved to have been recently stolen the
inference that the accused is the thief may be drawn. But when it went on appeal it was held that since it
was not known when the blouse disappeared from the store the accused could not be convicted.
Conviction quashed.

See also the case of Mbinga Nyambe v The People Z.R vol. 1 2011, 246

Stephen Manda v The People (1980) ZR 116; the appellant was a Customs and Excise Officer employed in
that capacity in a distillery; he was charged with the theft of a bottle of whisky there from. The learned
trial magistrate found that there was no evidence of any deficiency in the stocks of the distillery or any
evidence that the particular bottle and its contents had been stolen from the distillery. The accused was
acquitted of the charge as laid but in delivering judgment he was convicted of the offence of being in
possession of goods reasonably suspected of having been stolen or unlawfully obtained. On appeal it
was held that since it was not him who was found in possession he can not be convicted of that offence.
Appeal allowed.

Activity

Kasonde works as a shop attendant in Kalingalinga. The shop was broken into a few days ago and
Kasonde is found with some of the items from the shop. When asked where he got the items from, he
cannot explain how he ended up with the items. What will he be charged with?

12.7 FORGERY
A person is guilty of forgery if he makes a false instrument and for this purpose ‘instrument’ is defined
as; any document, whether formal or informal, any stamp issued or sold by the Post office, any inland
Revenue stamp; and any disc, tape, sound track or other device or in which information is recorded or

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stored by mechanical, electronic or other means. A currency note is not an instrument for the purposes
of forgery. (Check the Penal Code)

The essence of forgery, is the making of a false document intending that it be used to induce a person to
accept and act upon the message contained in it, as if it were contained in a genuine document. In the
straightforward case a document usually contains messages of two distinct kinds- first a message about
the document itself (such as the message that the document is a cheque or a will) and secondly a
message to be found in the words of the document that is to be accepted and acted upon (such as the
message that banker is to pay a specified sum or that property is to be distributed in a particular way).
Therefore it is only documents which convey not only the first type of message but also the second type
that need to be protected by the law of forgery.

The notion of ‘instrument’ or ‘document’ is peculiarly difficult to define. To constitute an instrument for
the purposes of forgery, the document must do more than merely convey information; it must be of such
a nature that the information contained in it as a document is intended to be acted on in some way,
usually, though not necessarily exclusively, by purporting to effect the rights or interests of some person
or persons.

In the case of Hopkins and Collins (1957) 41 Cr App Rep 231, CCA. D and E, the secretary and treasurer of
a football supporters’ club, received monies raised by members and made disbursements on behalf of
the club. Over a period of time they i) entered in the books amounts less than were paid in; ii) entered
amounts in excess of what was paid out; and iii) altered certain of the entries. It is clear that their
accounts were inaccurate but to keep inaccurate accounts is not forgery. The accounts must tell a lie but
to be forgery they must tell a lie about themselves.

13. TREASON
The goal of this unit is to enable you demonstrate an understanding of offences against public order.

At the end of this unit, you will understand and be able to critique the following offences:

 Treason
 Sedition
 Promoting tribal wars

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 Inciting mutiny
 Unlawful assembly or riot

The offence of treason is found under s 43-45 of the Penal Code. In Zambia, there are three classes of
treason; treason, misprision of treason and treason felony. Treason can be committed in Zambia by any
person but if the acts are done outside Zambia, non Zambians are exempted. In Zambia, any person who
is charged with treason, whether or not he owes his allegiance to Zambia or to another country, is
amenable to the Zambian jurisdiction, save that, in terms of s 43(3) of the Penal Code, a non-Zambian is
not punishable for treason committed outside the country. Under English law, duty of allegiance must be
proved in order to secure a conviction. In a charge of treason, an overt act must be proved to the
satisfaction of the court. So it must be stated in the charge sheet or information.(Kulusika: p728). The
only overt acts which may be proved are those charged or mentioned in the information sheet. Whether
an overt act has been sufficiently proved is a matter of law to be determined by the court. Where a
conspiracy is alleged or established an overt act of any of the conspirators in furtherance of the common
design may be given in evidence against all. The word ‘incite’ under s 43 (e) can be said to mean urge
on, rouse, stimulate, encourage, etc. If the person incited or assisted to commit the crime of invading
Zambia was unable, or desist on his own, or prevented from carrying out a plan to invade Zambia, the
accused would, nevertheless, be charged and convicted of treason (Kulusika: p728). The offence of the
felony term misprision is committed where a person becomes an accessory after the fact to treason, or
knew about it but failed to alert the relevant authorities of the conspiracy or did not do anything
reasonable to prevent the commission of the crime.

With the offence of treason-felony, the accused person or persons must have prepared or endeavored to
procure by unlawful means the alteration of the law or the policies of the Government; or must have
prepared or endeavored to carry out by unlawful means the usurpation of the executive power of the
State (Kulusika: p729).

PUNISHMENT; if convicted under s. 43(1), the person is sentenced to death. When a person is found
guild of the offence of the felony of misprision, that person is liable to imprisonment for life.

A person convicted for felony-treason is liable to imprisonment for twenty years. The court can exercise
its discretionary powers and may impose any sentence of imprisonment.

SHAMWANA CASE (1985) ZR 41

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The appellants together with four others were tried before the High Court on one count of treason,
contrary to s 43(1) (a) of the PC. The particulars of the offence were that, between 1 April and 16 th
October 1980, they, together with Pierce Anfield (who had since fled the country), had prepared at
Lusaka, Mwinulunga and other places unknown in the Republic of Zambia, to overthrow by unlawful
means the Government of the Republic of Zambia as by law established, by eleven specified overt acts.
At the close of the case for the prosecution, the four other persons jointly charged with the appellants
were all found to have no case to answer and were accordingly acquitted. The overt acts were reduced
from eleven to four.

What is an overt act? It is which manifests the criminal intention and tends towards the criminal object.
An open, manifest act from which criminality may be implied. An outward act done in pursuance and
manifestation of an intent or design. An open act, which must be manifestly proved. Or it must be
something done that directly may towards the crime, and brings the accused near to its commission
than mere acts of preparation or of planning, and will apparently result, in the usual and natural course
of events, if not hindered by external causes, in the commission of the crime itself.

MUYANGWA AND OTHERS V THE PEOPLE (1976) ZR 320

The appellants were convicted of treason. They are alleged to have recruited people for military training
and in one case to have undergone military training himself. The important witnesses were all men who
alleged to have recruited and to have undergone military training. All the witnesses were given the usual
indemnities by the DPP. In evidence they all said that they had been forced to cross the Zambezi river at
gunpoint and that they did not want to undergo training but feared for their lives if they refused. The
trial court did not treat them as accomplices but they are. The witnesses may have been speaking the
truth when they said that they underwent military training only because they feared for their lives;
but they were bound to say this, and even if there were no other indications in the evidence that in
this regard also they were exculpating themselves, and there was indeed such indications; where the
prosecution puts a witness forward as one who at the very least has an interest to exculpate himself
the court cannot decline to treat him as such without some very positive reasons. Therefore the trial
judge should have treated the witnesses with an interest to exculpate themselves.

According to the witnesses the appellant told them that he was recruiting people for jobs as builders.
They state they were taken from Choma to Livingstone and when they arrived in Livingstone, they were

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forced in a boat at gunpoint. Court was of the view that the first appellant knew exactly why the people
were being recruited; this is because the interviews were done at his house. According to court, the first
appellant may also have been deceived by the conduct of Mr. Chipango. The fact that Mr. Chipango lied
to the police officers at the road block does not indicate that the first appellant knew the purpose the
recruitment. The conviction of the appellant depends on the inference but the fact that he knew is not
the only inference.

On the second appellant, he was found with a forged UNIP card and fake drivers license but the people
who implicated him were also part of the group so this cannot stand unless we apply the provisio which
is ‘does there exist in this case corroboration of such manifest cogency that the conclusion is not to be
resisted that the jury, property directed, would certainly have arrived at the same conclusion’. In this
case the forged documents and being found in the group of others who said there were in Namibia is
enough evidence that the second appellant was part of the group. Therefore death sentence mandatory.

13.1 SEDITION
See s 57 – 60 of the PC.

A person shall not be convicted of any offence under s 57 on the uncorroborated evidence of one
witness. Also a person cannot be prosecuted for any offence under s 57 without the written consent of
the DPP.

S 60 defines a seditious intention. An essential element of all seditious offences as observed in Chona
(1962), is that the accused person must have done an act, subject of the prosecution, with intent to
incite public disorder and endanger public tranquility. In all cases involving seditious words, or seditious
intention publication f whatsoever description, a seditious intention is the most important aspect of the
offence. In the case of Ogidi, it was held that ‘it is difficult to conceive of anything better calculated to
bring into hatred or contempt the administration of justice in Nigeria than such an attack, and since an
appeal lies from the customary courts to the High Court of the Region it is not at all clear that the attack
does not, by implication, extend to the High Court.

In the Chona case, the court said that the elements of seditious offences are satisfied when the seditious
words or publications are intended ‘to bring into hatred or contempt and to excite disaffection against

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the administration of justice in the territory, and these words do not fall within the exemptions set out in
the latter part of s 53 G.

As regards intention, within the context of seditious intention, the court said, intention means ‘the state
of mind of the publisher of the document, who foresees and desires that certain consequences shall
follow from his publishing the document, the word ‘motive’ to mean the object he had in mind in
bringing about those consequences. In view of the court there is no need to establish intention in
offences involving seditious publication, because, if the legislature had intended to make the intention of
the person publishing the document an ingredient of the offence, then the legislature would have used
express words to the effect.

In the Boucher case(1951) SCT 265, there were hostility between the Quebec Roman Catholic
community and the Jehovah’s witnesses. The Witnesses distributed anti-roman catholic tracts and
leaflets considered by the authority as likely to lead to disorder. The distributor of the tract, was charged
with seditious libel, and was found guilty. The case then came before the Supreme Court of Canada. The
court held as follows;

i) that an essential element of seditious intention is an intention to ‘incite violence or public

disorder or unlawful conduct against an institution of the state.’
ii) That to incite disaffection against the administration of justice, or to promote feeling of ill-
will and hostility between different groups in the community, does not without the intention
to promote resistance to or disobedience of the law or the authority of the state, amount to
seditious intention.
iii) That criticism of government or a group in the community cannot amount to seditious
offence, even if the criticism is excessive.

R v CHONA

The accused was the National Secretary of UNIP and in November 1961 issued a document describing
the evils of colonial rule, which was addressed to all divisional secretaries, consitutency secretaries and
international representatives of the party for ‘distribution and publication’. The document was signed by
the accused. He was charged with publishing a seditious publication contrary to s 53 D(1) of the Penal
code.

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During 1961 there was an outbreak of violence designed to bring pressure on the colonial government
with regards to constitutional advancement of the territory. Many UNIP members were convicted of
arson, violence and destruction of property. The accused congratulated members of UNIP on the
violence displayed and on the bravery that was shown. By November 1961, this campaign of violence
had largely died down and public order restored.

The accused sent the whole statement to the commissioner which is therefore seditious. In his defence
the accused stated that he could not remember what was in the other paragraphs but he specifically
underlined paragraph 8 and 9 for the Commissioner. According to court, even if the accused did not have
a seditious intent, the offence is not ‘with seditious intent publishing written or printed matter’, it is
‘publishing written or printed matter which matter has a seditious intention.’ In the context of the instant
case, I take the word ‘intention’ to mean the state of mind of the publisher of the document, who
foresees and desires that certain consequences shall follow from his publishing the document, and the
word ‘motive’ to mean the object he had in mind in bringing about those consequences. Therefore
accused convicted.

Activity

What constitutes sedition according to the case of Boucher?

13.2 PROMOTING TRIBAL WARS

S 46 of the PC; any person who, without lawful authority, carries on, or makes preparation for carrying
on, or aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for,
by, or against any chief, or with, for, by, or against any tribal group, is guilty of a felony, and is liable to
imprisonment for life.’

The above section criminalizes any act or activity that is likely to enfuel inter-communal feud, or inter-
tribal conflict or inter-ethnic dispute that involves the use of firearms or offensive instruments against
any chief or tribal group without being sanctioned by the state or any agency of the State lawfully
authorized. In this respect, it is unlawful;

i) to carry on any war or warlike enterprise against a chief or a tribal group,

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ii) make preparations for carrying on any war or warlike enterprise against a chief or a tribal
group.
iii) To aid in carrying on any war or warlike enterprise against a chief or tribal group, or
iv) To advise the carrying on of any war or warlike enterprise against a chief or a tribal group.

S 46 envisages four different situations where any of the prohibited acts or activities may arise;

i) where the accused person with any chief or tribal group carry on or make preparation for carrying on
etc.; any war or warlike undertaking against another chief or tribal group

ii) the accused person carries on, or makes preparation for carrying on any war or …for a particular chief
or tribal group, that is for the interest of the said chief or tribal group,

iii) the accused person facilitates for a chief or a tribal group the carrying on or making preparation for
carrying on any war or war-like enterprise against another chief or tribal group.

v) the accused advises a chief or a tribal group how to carry on, or make preparation to carry
on war or war-like enterprise against another chief or tribal groups or the accused advises
the conspirators to carry on or make preparation for carrying on war or warlike enterprise
which or acts marked by sectarian or tribalistic tendencies.
If a person is found guilty under this section, the sentence is life imprisonment.

S 46 does not provide any definition of mens rea of the offence. The court may treat such offences as
strict liability offences, or it may read in mens rea thereby requiring the prosecution to prove it beyond
reasonable doubt.

This offence under s 48 may be committed by attempting to effect seduction, or incitement of members
of the Defence Force or Police Service;

i) to show infidelity to the head of state, or

ii) to commit acts of mutiny, or
iii) to make or endeavour to make a mutinous assembly.

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13.3 INCITING MUTINY

Aids; it would mean that the secondary party gives assistance to the principal in the commission of an
offence. The giving of assistance may be before or at the time of the commission of the offence.

Abets; it means to incite, to instigate, to encourage the commission of offence. Abetting the commission
of crime should mean encouraging the commission of the crime at the time it is committed. If it entails
encouragement before the time of the commission it may be preferably to employ the word aid.

Mutiny; it is to rise against lawful or constitutional authority.

An attempt to seduce (whether the attempt was successful or not) would constitute the offence. The
word ‘advisely’ add clarity to the word attempt, suggesting careful thinking or deliberation. In addition,
the prosecution must prove i) that the person seduced or incited is serving in the Zambian Defence
Force, or Zambian Police Service, and ii) that the purpose of the seduction or incitement was traitorous
or mutinous.

PUNISHMENT; penalty for offence committed under s 48 is life’s imprisonment. For those convicted
under s 49, the general punishment for a misdemeanour will apply.

13.4 UNLAWFUL ASSEMBLY AND RIOT

According to section 74(1) when three or more persons assemble with intent to commit an offence, or
being assembled with intent to carry out some common purpose, conduct themselves in such a manner
as to cause persons in the neighborhood reasonably to fear that the person so assembled will commit a
breach of peace, or will by such assembly needlessly and without any reasonable occasion provoke other
persons to commit a breach of the peace, they are an unlawful assembly. It is immaterial that the
original assembly was lawful if, being assembled; they conduct themselves with a common purpose in
such a manner as aforesaid. According to section 74 (2) when an unlawful assembly has begun to
execute a common purpose by a breach of the peace and to the terror of the public, the assembly is
called a riot, and the persons assembled are said to be riotously assembled. Both these offences are
misdemeanours. For unlawful assembly the sentence is five years and for taking part in the riot it is
seven years.

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An assembly is distinguished from a meeting in that the latter connotes prior or contemporaneous
organization, with an order of business, and the transaction of business including delivery of speeches
and passing of resolution.

The concept of an assembly includes any coming together of persons. It may include processions, prayer
groups getting together, demonstrations etc. An assembly is complete by getting together: no form is
required; no object be intended to be accomplished.

Public place for assembly, is a place where the public have access, but not necessary a right. Some of the
public places are a dance hall, a railway carriage in service, a bus, part of a railway station open to the
public in general, inter-city bus station, public libraries, car park, sports grounds, cinemas, hotels, shops
etc. According to Holdsworth’s History of English law, unlawful assembly is defined as ‘the company of
three or more people disorderly coming together, forcibly to commit an unlawful act.’ A lawful assembly
may become unlawful assembly if it produces sufficient disorder as the court held in R v Caird (1970) 54
Cr. App.R .499. That a peaceful crowd may become unlawful assembly the moment it commences to act
for some stated common purpose, ready to support one another in the use of violence, in such a way
that persons of reasonable firmness may apprehend a breach of peace. As soon as the unlawful
assembly commences to produce offensive weapons or use abusive words, the unlawful assembly is
transformed into a riot.

The elements of a riot are;

i) there must be three or more persons

ii) unlawful, common purpose, if the purpose is lawful, there must be a display of unnecessary
violence
iii) inception or execution of the common purpose
iv) an intent to help one another by force if need be in the execution of the common purpose
v) display of actual violence as to alarm at least one person of reasonable firmness.

Activity
What is a riot? Differentiate between an unlawful assembly and a riot.

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13.5 DISORDERLY BEHAVIOUR IN PUBLIC PLACE;

i) going armed in public (s 84)
ii) Affray s 88
iii) Challenge to fight a duel s 89
iv) Threatening violence s 90

According to s. 84 any person who goes armed in public, without lawful occasion, in such a manner as to
cause terror to any person is guilty of a misdemeanour and his arms may be forfeited.

According to s. 88 any person who takes part in a fight in a public place is guilty of a misdemeanour and
is liable to imprisonment for six months or to a fine not exceeding seven hundred and fifty penalty units.

All the above offences are misdemeanours and sentencing range from about six months to five years.

14.OFFENCES AGAINST PUBLIC AUTHORITY

14.1 Contempt of Court
You find this under s.116 of the PC

Punishment it is six months or you pay a fine.

14.2 Fraud or Breaches of Trust by Public Officers

According to s. 123 any person employed in the public service who, in the discharge of the duties of his
office, commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust
would have been criminal or not if committed against a private person, is guilty of a misdemeanour.

The above Act criminalizes conduct of any person in the service of the government, its various
departments, corporations, agencies, and also those employed by local authorities or other local bodies
(including institutions of higher learning or which the Ministry of Education or Ministry of Science and
Vocational Training are either direct supervisors or major benefactors, who commits any fraud or breach
of trust whilst discharging the duties of his or her office. However, the person concerned is deemed to
have committed such a fraud or breach of trust if such a conduct affects the public. That is the act must
be harmful or injurious to the public. Such harm or injury may not necessarily be physical or in terms of
pecuniary loss, but may be economic loss, or loss in the integrity of the office such that the public

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confidence is eroded or lost. The adverse effect of the criminal conduct of the accused public servant is
both physical and psychological. But the accused public servant will be charged with misdemeanour
under s.123 only if he or she commits the offence whilst on active duty. This can be understood from the
phrase ‘in the discharge of the duties of his office.’ The shortcoming is that it does not contain any
definition or amplification of the term ‘fraud’ or the phrase ‘breach of trust’.

Punishment; it is not specified but it is a misdemeanour.

14.3 Disobedience of Statutory Duty

According to s.126 every one who willfully disobeys any Statute or Act by doing any acts which it forbids,
or by omitting to do any act which it requires to be done, and which concerns the public or any part of
the public, is guilty of a misdemeanour and is liable, unless it appears from the Statute or Act that it was
the intention of Parliament to provide some other penalty for such disobedience, to imprisonment for
two years.

The above section criminalizes conduct which amounts to the contravention of any Statute or Act, or
simply any enactment either by doing any act which is forbidden by the statute or Act itself or by
omitting to do any act required to be done. The act which must be done or which must not be omitted to
be done, should be of concern to the public in general, or part of the public as the case may be.

Punishment: once somebody is found guilty the punishment is for two years.

14.4 CRIMINAL DAMAGE

Destroying or Damage Property belonging to another

What is contemplated by ‘destroy or damage’ is actual destruction or damage; that is, some physical
harm, impairment or deterioration which can be perceived by the senses. It was not this reason that
intangible property was excluded from the definition of property. It is not enough to show that what has
been done amounts to a civil wrong, as for example a trespass to land or goods for neither requires
proof of actual damage.

A thing may be damaged though nothing is actually broken or deformed. A car is damaged just as much
by uncoupling the brake cable as by cutting it with a pair of pliers. So a machine may be damaged by
removing some integral part, or by tampering with some part so that it will not work although no part is
removed or broken, or by running it in an improper fashion so that impairment will result. These

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principles apply just as much to land as to chattels. To dump rubbish on another’s land , even though
there is not tangible hurt to the land beneath the rubbish, may be to damage the land if the owner is put
to expense in removing the rubbish before the land can be put to his uses. If property, whether real or
personal, is rendered unfit for use to which it might be put, it may be sensibly be said to have been
damaged. This is not to say that property is damaged merely by a denial of its use. It could not be said
that a house or car is damaged by the theft of the keys to the front door or to the ignition keys even
though the owner may be put to expense before he can put the house or car to their intended uses. On
the other hand property may be damaged though there is no interference with its performance if it is
rendered less valuable. A car is damaged if the paintwork is scratched and food is damaged by spoiling as
where milk is watered. Therefore different things may be damaged in different ways. In the case of A v R
[1978] Crim LR 689 it was held that spitting on a policeman’s raincoat did not damage the raincoat where
the spittle could be removed by a wipe or a damp cloth. No doubt it would have been otherwise had the
material been capable of being stained by the spittle.

While it may be difficult to lay down ‘any very general rule and, at the same time, precise and absolute
rule as to what constitutes ‘damage’, it is submitted that it goes too far, as some of the cases suggest, to
say that it is a matter of fact and degree to be determined by the tier of fact in a commonsense way.

To destroy clearly goes beyond damage and does not contemplate half measures. To destroy, of
structures means to pull down or demolish, of crops or growing things to lay waste, of machines to break
up, and of animals to deprive of life.

What do we mean by property? It has the same definition as property in theft. But there are exceptions;
land which cannot be stolen can be the subject of criminal damage and the second exception is that
while intangible property has now been brought within the subject matter of theft, it is still excluded
from the definition of property for the purposes of criminal damage. In Cox v Riley (1986) 83 Cr App Rep
54, it was held that D was guilty of criminal damage where he erased the programmed from a plastic
circuit card which operated a saw to cut wood to programmed designs.

What do we mean when we say belonging to another? This offence may be committed only where D
destroys or damages property ‘belonging to another’. Here again the policy of the law of criminal
damage, which must be to protect interests in addition to ownership, is very much the same as that for
the law of theft. Here ownership is not important.

Mens rea

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The destruction or damaging of property must be intentional or reckless, and without lawful excuse.
Thus in the Chief Constable of Avon and Somerset Constabulary v Shimmnen (1986) 84 Crim App Rep 7,
while demonstrating his skills in Korean arts, put his foot through a shop window, it was held that his
belief that he had eliminated as much risk as possible showed that he realized that there was still some
risk and he could accordingly be convicted of criminal damage.

But there is a defence; if for example you damage property belonging to another because you want to
protect your property you can plead the defence. But the property must be in immediate need of
protection. The other defence is claim of right. The position would appear to be the same where D,
though he does not believe he is the owner of the property which he destroys or damages, nevertheless
acts under a claim of legal right.

Activity

What is criminal damage?

15. THEORIES OF PUNISHMENT

Retributive: it may be used to indicate either vengeance or expiation. It also refers to giving the offender
his or her just deserts. It is used to show that punishment is being employed as a means of censure or
denunciation. According to this theory, it is morally fitting that a person who does wrong should suffer in
proportion to his wrong doing. That a criminal should be punished follows from his guilt, and the severity
of the appropriate punishment depends on the depravity of the act.

i) vengeance; punishment inflicted on the perpetrator of an offence meets with the victim’s
desire for vengeance, and the state by imposing punitive sanction is acting on behalf of the
victim in order to avoid private retaliation.
ii) Expiation; the offender is seen as a sinner who must be purified through the act of being
subjected to suffering and pain by the infliction of punishment. The offender is paying for his
past crime. This he must do, through the medium of punishment in order to regain his
rightful place in society to which he had done some wrong.
iii) Dessert; he society punishes the wrong doer because he deserves it.

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Prevention/ Deterrence; according to this theory punishment is unjustifiable unless it can be shown that
more good is likely to result from the imposition of punitive sanctions than the absence of such
sanctions. This is also known as the Utilitarian theory of punishment. According to them punishment is
desirable if it a means to;

i) the treatment of the offender,

ii) the protection of the people against other offences, and
iii) to act as a deterrence to would be offenders.

Reformation: here the concentration is on the personality of the offender and turning him into a useful
member of the society after discharge from prison. The reformatory or the prison where inmates are
confined becomes an institution where offenders are locked up until the desired reformation is achieved,
and crime is reduced not only by the elimination of re-offending, but by the discovery of potential
criminals, who in turn, will be subjected to treatment to make them safe.

Activity

What is the purpose of punishment?

15.1 SENTENCING
A court has the power to impose any sentence within the PC.

Imprisonment; it is one of the ways of isolating dangerous people. It serves the best interest of the
public but it is also very costly on the state.

Fine; this usually happens in cases of misdemeanours. What is the disadvantage? Those with the means
will pay but those without will be imprisoned.

Probation; it is important because it facilitates the reintegration of the offender into the community,
avoids the negative aspects of imprisonment, and reduces the financial burden of the state. But they
should be adequate supervision, if not then it becomes a problem. In Zambia, you find it under the
Probation of Offenders Act, Cap 39, and section 3 defines the actions that the court may authorize when

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making a probation order in respect of an offender of any age, but in practice its use is confined to
juveniles.

Deportation; according to section 34 and 35, the High Court or any subordinate court may recommend
to the President that an offender, who is a citizen of Zambia, or a foreigner, be deported to such part of
Zambia as the President may direct. The deportation order may not be made without the
recommendation of the High Court.

Community sentence; offenders must service in the community. But he or she is required to comply with
certain requirements set by the court as to his or her behaviour. The compliance is to be monitored,
supervised and enforced if need be. The success of community sentence depends on the capacity of
supervisors to win the confidence of the offender and to persuade the offender that what he or she is
performing is good for him or her and the community at large. These include community rehabilitation
order where an offender is required to blend in his or her community. Community punishment is where
the offender is required to do unpaid work for certain hours and drug treatment or testing is where
offenders is to under go treatment.

Pardon; the president may exercise this power as conferred to him under the Constitution in articles 57
and 60. It is also known as prerogative of mercy and cannot be subject to review by the courts of law. It
is also not subject to legislative intervention, except by way of amendment. In exercising this power the
President is advised by an advisory committee constituted by him or her in accordance with the
provisions of article 60 of the Constitution. The institution where a convicted person is confined may
make recommendations to the President regarding certain convicted persons, who , in its view, deserve
to be considered for pardon. Even a convicted person on his own or his family may petition the President
for pardon

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