NATURE AND SCOPE OF CRIMINAL LAW

The criminal law is instituted as a mechanism to protect society

and the individual against injuries that humans are capable of,
and have shown themselves to be capable of, inflicting on other
humans and institutions.
The Wolfendon Report in 1957 gave the following as the
functions of the criminal law, which seeks to:
 preserve public order and decency
 protect the citizen from what is offensive or injurious
 provide sufficient safeguards against exploitation and
corruption of others, particularly those who are specially
vulnerable because they are young, weak in body or mind,
inexperienced, or in a state of special physical, official or
economic dependence.
Criminal law is deemed to be an instrument of safety. Criinal law
is institutionalized because it is not only about the infringements
on private rights but also has an effect on the public as a whole.
It is aimed at forbidding conduct that threatens to do substantial
harm to society, even if the victim is just an individual.
Why Should Criminal Conduct be Defined?
The American Law Institute’s Model Penal outline provided that
criminal conduct must be defined in order:
• To safeguard conduct that is without fault from condemnation
as criminal

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• To give fair warning of the nature of the conduct declared to
be an offence
• To differentiate on reasonable grounds between serious and
minor offenses
In short, a person must know what conduct is prohibited as a
Commented [sq1]: The appellant was granted a licence
crime. PARKER v GREEN empowering him to keep an inn and ale house. The licence
stipulated that the appellant should not knowingly permit or
IS CRIMINAL LAW SEPARATE FROM MORALITY? suffer persons of notoriously bad character to assemble and
meet together at his premises.
On one night, 14 prostitutes assembled at his premises and
Criminal law is based upon moral principle – however one looks he was charged for breaching the stipulation in the licence.
The issue was whether the prostitutes were persons of
at it. However, the problem is that none of the moral codes can notoriously bad character. HELD: the prostitutes were
persons of notoriously bad character and since the
claim any validity except by virtue of the religion or creed on appellant knew them to be prostitutes and he allowed them
in the house longer than was necessary for the purpose of
taking refreshment, and they met there for purposes
which it is based. In PROPRIETARY ARTICLES TRADE connected with their vocation as prostitutes, the appellant
was liable.
ASSOCIATION v AG FOR CANADA, Their Lordships opined that
“Morality and criminality are far from co-extensive;
nor is the sphere of criminality necessarily part of a
more extensive field covered by morality – unless
the moral code necessarily disapproves all acts
prohibited by the State, in which case the argument
moves in a circle”
In terms of private morality, there are two schools of thought as
to whether it should be classified as law. Lord Devlin, who
belonged to one school posits that it is not possible to set
theoretical limits to the power of the State to legislate against
immorality (private ones of course). He asserts that it is not
possible to determine in advance areas of immorality the law
should not be made to enter. The other school also posit that the
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immorality of an action is not itself sufficient reason to
criminalize it – therefore, as long as the act does not harm any
other person, perhaps except the actor himself, there is no
justification in criminalizing the act. They further contend that
whilst it may legitimate to criminalize an act that causes harm to
another person, but where there is no victim, it is pointless to
criminalize the act and such conduct they term as victimless acts.
GLAH v THE REPUBLIC.BEATTY v GILLBANKS
COMMISSIONER OF POLICE v. BELLO
Facts: the appellant prepared some documents for the
complainant who was illiterate and charged an amount for the
services. He however issued a receipt for a lesser sum and was
subsequently convicted of stealing. Held the act complained of
did not constitute a crime within our statute books. For it to be
stealing the money must have been dishonestly appropriated
and to be larceny by trickery the said property must have passed
into the possession of the appellant by trickery with the
complainant not willing to part with the property but only
possession. From the facts the money was paid as a result of a
valid contract thus not a crime and the only remedy available is
through a civil action
Comment; the fact that an act is wrong does not impute as a
crime unless the said act is define as such within the statute
books. Moreover, some immoral acts as in the present case
cheating are not crime as they do not affect the public as a
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Commented [AK2]: the first appellant had an affair with
both his mother-in-law and sister-in-law, the other
appellants. The relationship had lasted seventeen years and
had produced two children with both women. The chiefs
and elders of the village had given them word to desist from
such immoral acts but they refused. This enraged the
inhabitants and as a result, Glah and his wives were
arrested and charged with an offence of conduct breaching
the peace, contrary to section 207 of the Criminal and other
Offences Act, 1963 (Act 29). The prosecution contended
that their acts were immoral and also against customary
law. They were convicted and on appeal, HELD: the court
held that the said immoral offence was not caught by any
section of the Criminal and other Offences Act, 1960 (Act
29), and as such wrong in law, to acquit them.
Commented [sq3]: This case arose out of opposition to
the
Salvation Army in its early days, the local Salvationists had
been convicted of unlawful assembly and ordered to find
sureties to keep the peace by a court of petty sessions. On
appeal to the Divisional Court it was held that since the
association was for religious exercises an assembly and
procession in the streets was not in itself unlawful. The
disturbance of the peace was caused by the opponents of
the Salvationists (known as the Skeleton Army) who had on
several occasions violently interfered with their activities. It
was clear that had the Salvationists not met in public and
marched in prcession, there would have been no
disturbance of the peace. Moreover previous meetings had
caused disorder so that the Salvationists knew that similar
consequences were likely to ensue. But since the
disturbances were caused by people antagonistic to the
Salvationists and they themselves had committed no acts of
violence, they could not be convicted of unlawful assembly
and be bound over to keep the peace.
whole. The mere fact that an act is morally wrong does not mean
it is a crime.

WHAT IS A CRIME
Crime does not lend itself to easy definition. As such, an effort is
made only to describe it. In law, a crime is defined by reference
to the legal consequences of the act in question. Therefore, a
crime is an act that may be followed by criminal proceedings.
Fro this, a criminal proceeding is where the proceeding imposes
a penalty for an offence against the public, and the penalty is
meted out by judges according to the magnitude of the offence.
Commented [AK4]: Viscount Simon explained that if the
PARKER v GREEN, AMAND v HOME SECRETARY, BROWN v matter is one the direct outcome of which may be trial of
the subject and his possible punishment for an alleged
ALLWEATHER GROUTING CO. LTD. In short an act is a crime only offence by a court, the matter is criminal

if it is prohibited by statute and there is a penalty attached to the
doing of that act.
A crime is differentiated from a civil wrong. Both may be an act
Commented [AK5]: the mere fact the word “offence” is
used in a statute does not imply that the provision is to be
regarded as creating a criminal offence – sometimes the
failure to do something is prescribed as an offence although
the law maker imposes in respect of it, a pecuniary sanction
recoverable as a civil debt and not a criminal sanction

or omission. What distinguish between the two is whether

society has designated such an action or omission to be as such.
Civil wrongs are actions or omissions that are unacceptable but
are personal in their effect rather than notionally affecting the
whole society and for which society might not consider it
necessary to punish the offender, so to speak. A crime is that act
or omission that the State would punish
Until the State legislates to CRIMINALIZE an act, it is not a CRIME.
Therefore, an immoral act or omission is not necessarily a crime,
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until a law is passed making it a crime. Glah v The Republic. For
example, in Ghana, it is not a crime to engage in an adulterous
relationship, or to engage in fornication. From this, it can be
deduced that what amounts to a crime in one country may not
be so in another country.
Crimes may be classified in reference to their conceptual
immorality or inherent evil. In this respect, a crime may either be
 malum in se; or
 malum prohubitum
A malum in se crime is one that is wrong or evil in itself. This
refers to conduct that is thought to be inherently wrong by
nature – independent of laws governing that conduct. Eg.
Murder.
A malum prohibitum crime is one that is wrong because it is
prohibited – that is, conduct that is considered criminal only
because it is prohibited by law – without such prohibition it
Commented [sq6]: According to Wills J, there is a
would not be considered a crime. COLLMAN V. MILLS distinction between things criminal in themselves – that is
morally wrong and wicked, and things which are made
criminal and are prohibited under a penalty simply for the
public good
Case:

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Facts: is

Held: the byelaw was good and the defendant was guilty and
liable for the act of His servant that act having been performed
in the general scope of his employment although contrary to the
orders of the master.

Crimes are also classified according to their gravity and the

seriousness society attaches to them. This is seen in Section 296
of Act 30. They are
i. Offences punishable by death.
ii. First degree felonies
iii. Second degree felonies
iv. Misdemeanours
v. Offences punishable by fine
Offences punishable by death – also known as capital offences –
are considered the most serious offences – e.g. murder, treason
and high treason
The next in line in terms of gravity are first degree felonies – in
Ghana, first degree felonies normally attract a prison term of up

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to life sentence – examples are rape, and causing harm with the
use of an offensive weapon
Second degree felonies are considered less in gravity than first
degree felonies – in Ghana, they attract a term of imprisonment
not exceeding 10 years – examples abortion, causing harm, and
threat of death. However, offences involving dishonesty, though
second degree felonies, attract sentences of up to 25yrs - these
include stealing, robbery, defrauding by false pretences etc.
Misdemeanours are less in gravity than felonies – in Ghana,
misdemeanours normally attract a term of imprisonment not
exceeding 3 years – examples are threat of harm, assault, and
abduction. Then again, a fine (sum of money) may be imposed in
addition to a prison term
However, where the only penalty for an offence is a fine, then
the offence is a very minor one – examples are wilful neglect to
fill up or transmit the certificate of a marriage to the Registrar of
marriages; indecent inscriptions like advertisements in relation
to venereal diseases or an advertisement claiming aphrodisiac
properties for a preparation without the authorization of the
Minister for Health etc.

PRINCIPLE OF LEGALITY
This principle is captured in the Latin maxim nullum crimen, nulla
poena sine lege praevia lege poenali – shortened to nullum
crimen, nulla poena sine lege - No crime is committed and no

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punishment can be imposed without the act having been
prohibited and the punishment having been prescribed by a law
enacted before the act was committed.
It is divided into two parts:
 Nullum crimen sine praevia lege
 Nulla poena sine praevia lege
Nullum crimen sune praevia lege
This is to the effect that, an act or omission to act is only a crime
if before the act or omission was committed, there was a law
declaring the act or omission in question as a punishable offence.
Article 19(5) of the 1992 Constitution TSATSU TSIKATA v THE
REPUBLIC HASSAN v THE REPUBLIC
Nulla poena sine praevia lege
This is to the effect that, an act or omission to act is only a crime
if a specific penalty has been previously prescribed for that act
or omission.
In Ghana, this principle is carried further on two legs:
• the offence must be written in a law and defined
• a penalty must be prescribed for the offence
ARTICLE 19(11) OF 1992 CONSTITUTION
DEBRAH v THE REPUBLIC
The appellant was charged under s 53(A) of Act 370 with a
conduct with was disrespectful and insulting to the chief of
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Commented [sq7]: A person shall not be charged with or
held guilty of a criminal offence which is founded on an
act or omission that did not at the time it took place
constitute an offence
Commented [sq8]: The appellant signed as a guarantee
of a contract on behalf of the state in 1991. In the interim
an amendment of the criminal offences act made it an
offence to willfully cause financial loss to the state. In 1996
he signed a document releasing the said amt of money. He
was charged and convicted for causing financial loss against
the state. He contended that the act failed to define
willfully.
Held: there was no need for the act creating the crime to
define in tutu the words in the statue. This decision has
been criticized since the it is difficult to ascertain the nature
of the offence causing willful loss to the state as prohibited
by section 170(A).
Commented [sq9]: the appellant was found in the
possession of Indian Hemp, and was convicted by the Circuit
Court on a charge of possessing Indian Hemp ON 20TH
January, 1961, contrary to the Pharmacy and Drugs Act,
1961 (Act 64). However, Act 64 came into force on 13 June
1961. HELD: In allowing the appeal against the conviction of
the accused, the Supreme Court observed that on 20
January 1961 (the date captured on the charge sheet), there
was no offence like possession of Indian Hemp at the time
of the charge and as such, he was wrongfully convicted.
Commented [sq10]: No person shall be convicted of a
criminal offence unless the offence is defined and the
penalty for it is prescribed in a written law
kajebi. The act which the prosecution alleged amount to
disrespect of the chief was collecting stone from the entrance of
the palace. At trial the counsel for the defendant appellant made
a submission of no case which was declined by the trial judge. He
appeals from the decision overruling the submission of no case.
Holding and comment: for an act to be an offence the said act
must be defined by the section creating the offence and a
punishment proscribed or by the parent ACT. The act 370
provides for offences against a chief and not against custom. As
such the prosecution must fail as the basis of their prosecution
is for an act committed by the appellant contrary to custom.
Moreover since the offence complained of is against custom and
by virtue of section 8 of act 29 a person cannot be punished for
an offence against customary law the appellant is not liable in
the criminal. This is In accordance with the principle that the
criminal offence must be written, defined and the offender must
have prior notice of it as enshrined in article 19(11) of the
constitution 1992.
The rationale is that it is unfair to punish someone unless he has
a chance to know the law and to conform to it

THE RULE AGAINST DOUBLE JEOPARDY

This principle is to the effect that no man should be punished
twice for the same offence. Once a person has been tried for an
offence, he cannot be tried again for the same offence, whether

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his trial ended in an acquittal (autre fois acquit) or a conviction
(autre fois convict).
The rationale is that the criminal law seeks to prosecute
offenders not to persecute them – so once a person has been
tried and sentenced, he cannot be punished again for the same
offence since to do so would amount to undue oppression or
Commented [sq11]:
persecution. SECTION 19(7)
The rule applies where, in his trial, the accused was in peril in
respect of the same set of facts – for instance, under a charge of
murder, the accused would be in peril of being convicted for
manslaughter – so if he is acquitted, a fresh charge cannot be
brought for manslaughter against him. The accused must show
that the first trial ended in a final verdict of GUILTY or NOT
GUILTY. A discontinuance, hang jury, or the entry of a nolle
prosequi is not a final verdict
On the other hand, where a person causes harm to another, and
the victim is still alive, the accused is not in jeopardy of being
charged for murder at his trial for causing harm – if the victim
eventually dies, the accused may then be charged for murder.
Commented [sq12]: A person convicted or acquitted of
Section 115 of Act 30. an act causing consequences which together with the act
constitute a different offence from that for which that
person was convicted or acquitted, may be afterwards be
tried for that last-mentioned offence, if the consequences
had not happened at the time when that person was
PUNISHMENT acquitted or convicted.

Punishment is deemed to be the bedrock of criminal law. there

is no exact definition of punishment. However, in an attempt to
describe it, punishment enatails the infliction of suffering by a

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deliberate act of the authority of the State on an offender after
he has been lawfully convicted for an offence.
INDICES
 Punishment is inflicted on a person found guilty of an
offence – This suggests the possibility that it may be
inflicted on a person who may not be factually culpable.
 It involves the infliction of some pain or suffering or
deprivation – this may take the form of imprisonment, fine,
or the imposition of the performance of some service –
therefore, a pleasant visitation is anything but punishment.
 It must be inflicted deliberately or intentionally by the
authority of the State – so if the pain, suffering, or
deprivation is the unintended consequence of the action of
the authority of the State, it is no punishment
 Punishment must be meted out to a person by another – so
if a person inflicts pain or suffering or some deprivation on
himself, it does not qualify as punishment – self-flagellation
is no punishment – a self-flagellant is a person who scourges
himself as a religious discipline or as a sexual stimulus.
 Punishment is related to the commission of a crime – it
cannot be imposed in a vacuum – it must be the
consequence of the commission of a crime – therefore
punishment cannot be imposed before the commission of a
crime.

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  Some writers suggest that a feature of punishment is that it
symbolizes an expression of disapproval for the violation of
a rule.
 from the foregoing, punishment is distinguished from non-
punitive penalties like flunking an exam, disqualification,
off-side, spot-kick, dismissal etc. – i.e. punishment is a strict
and narrow form of penalty

PURPOSE/AIMS OF PUNISHMENT
Punishment is intended to ensure compliance with the criminal
law. it is intended to achieve a desired object.
JUSTIFICATION OF PUNISHMENT
 it vindicates the law
 it upholds the majesty of the law
 it encourages us to obey the law.
THEORIES OF PUNISHMENT
There are two main theories; retributive and utilitarian theories
of punishment.
RETRIBUTIVE THEORY
There are two themes of this theory; classic retributive theory
and proportionality theory.
1. CLASSIC RETRIBUTIVE THEORY: This theory is based on
seeking revenge. It is to the effect that the offender should be

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 paid back in their own coin – lex talionis – the law of
retaliation. This theory is modified into:
The Proportionality Theory: This denotes that punishment
must fit the crime – i.e. the moral culpability of the offender
justifies the punishment. As such, punishment must not be
imposed out of proportion to the offence committed.
MELFA v THE REPUBLIC APALOO v THE REPUBLIC KWADU
v THE REPUBLIC
REASONS WHY RETRIBUTIVISTS PUNISH
The focus of retributivism is on different degrees of punishment
for different degrees of crime. A retributivist punishes because
the offender deserves it – this is in contrast to utilitarian views
that base punishment on the ideal of the greater good of
preventing future offences and also in contrast to justifying
punishment on the good it does the criminal. Under the
retributive theory the consequences of punishment are
irrelevant to its justification.
UTILITARIAN THEORIES
This theory is attributed to Jeremy Bentham. It is to the effect
that law must ensure to the greatest good for the greatest
number of people. It also posits that the moral worth of an action
is determined by the outcome – i.e. the end justifies the means.
The utilitarian theories of punishment therefore are to the effect
that punishment must be a means to an end – it should not be
imposed for its sake – it must serve a purpose – the purpose it
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Commented [sq13]: The appellant had gone to a pub to
have a drink and was sitting at a table quite different from
that at which the deceased, an international footballer, was
sitting with his friends. The deceased had a quarrel with one
of his own friends and a fight ensued between them. The
appellant did what any reasonable man would do, by trying
to separate the two. The deceased picked upon the
appellant and beat him up and threw him onto a fence. In
the face of the beatings, the appellant picked up a broken
bottle and warned the deceased to stop beating him but the
deceased still advanced and he stabbed him. He was
sentenced to 8 years of imprisonment because the trial
judge saw the crime as one of violence. HELD: The CA held
that, each crime of violence should be considered on its
own merits when inflicting penalty on the perpetrator and
that if the trial judge had considered all the facts in relation
to the crime he would not have imposed such a long
sentence. From this, the court concluded that the deceased
was a man of temper and as such, was the aggressor. In the
circumstances, the sentenced was reduced to 4 yrs
Commented [sq14]: the first appellant was arrested,
charged and convicted contrary to s19a(11) and s 32 of Act
242 with the possession of a currency printer , fake
currencies and the abetment of forgery. They were
sentenced to a term of 15 years. They appeal against the
conviction and the sentence. HELD: The principles upon
which the court would act on an appeal against sentence
were that it would not interfere with a sentence on the
mere ground that if members of the court had been trying
the appellant they might have passed a somewhat different
sentence. The court would interfere only when it was of
opinion that the sentence was manifestly excessive having
regard to the circumstances of the case, or that the
sentence was wrong in principle. Grave offences (such as in
the instant case) usually called for deterrent sentences. But
the general principle was that a sentence of imprisonment,
even though intended specifically as a general deterrence,
must not be excessive in relation to the facts of the offence.
Having regard to all the circumstances, the sentences of the
first appellant to fifteen years imprisonment was
inordinately excessive and ought to be reduced to ten years
imprisonment.
Commented [sq15]:
serves being the end. Here, the focus is on the beneficial
consequences of punishment and not really the suffering visited
on the offender.
i. Deterrence: Punishment is imposed to communicate to
the community that such conduct would not be tolerated
thus reducing the incidence of crime. Here, punishment
reduces crime through fear by discouraging others from
engaging in similar conduct in the future.
HARUNA v THE REPUBLIC
On appeal against a deterrent sentence of eight years
imposed on a young man aged 26 by the trial circuit
court for the first offence of possessing Indian hemp
contrary to sections 47 (1) and 57 (1) of the Pharmacy
and Drugs Act, 1961 (Act 64), HELD: that when young
men have their first brush with the law, it is essential in
the interest of the reformative element in criminal
justice that they be not sent to prison unless a prison
sentence is a mandatory legal requirement. If a prison
sentence is not a mandatory legal requirement, then as
a general proposition, unless there are special
circumstances calling for a custodial sentence, the court
must avoid incarcerating young offenders’.
a. General Deterrence: This focusses on the effect of
punishment on society at large. They are usually
severe and the offender is usually seen as a scape goat.
Here, the special circumstances of the offender are
often taken into consideration thereby leading to the

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 imposition of harsher sentences than would otherwise
have been imposed – for instance, if a person in
authority commits a crime or someone who should
have known better, like a law enforcement agent,
commits a crime, a harsh sentence is often imposed.
KWASHIE v THE REPUBLIC, ADU BOAHENE v THE
REPUBLIC
b. Specific Deterrence: This seeks to discourage the
individual offender from repeating the commission of
a crime – that is, it seeks to prevent recidivism.
ii. Prevention: The focus here is removing the individual
offender from society to render him physically incapable
of committing further crimes.
iii. Reform and Rehabilitation: This is aimed at assisting the
offender to turn a new leaf by adopting a lifestyle
different from the criminal one through moral education.
iv. Atonement and Reparation: Here, the offender is made
to compensate the victim for the damage or injury
resulting from his criminal conduct.
CRITIQUE OF THE THEORIES
1. The retributive theory is criticized for focusing too much on
the punishment – it is said that punishment for its sake does
no good – that, punishment requires some good to justify
it.
2. The utilitarians further argue that there is no such thing as
just deserts because it is only God who knows what people
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Commented [sq16]: In collaboration with two other
police officers, the first appellant used his office as a police
detective to seize a large quantity of goods that had been
smuggled into the country. Rather than sending the goods
to the police station they were sent to the private house of
one of the accomplices for the purpose of selling them for
the benefit of all who participated. The appellants and their
accomplices were found guilty of stealing contrary to
section 124 of Act 29 and were each sentenced to seven
years’ imprisonment with hard labour. Counsel for the first
appellant argued that the sentence was excessive. HELD:
since the offence was of a very grave nature, the sentence
must not only have been punitive but it must also have
been a deterrent or exemplary in order to mark the
disapproval of society of such conduct by police officers.
And that when a court decides to impose a deterrent
sentence the value of the subject-matter of the charge and
the good record of the accused become irrelevant. In
determining a sentence it is proper for a court to consider,
on the one hand, the social or official position of the
offender, and on the other, that the offence may be
aggravated by reason of such position. The trial judge was
justified in taking the official position of the first appellant
into consideration in passing an exemplary sentence.
Commented [sq17]: the appellant was charged and
convicted for fifteen years and hard labour on the count of
robbery. He was identified by the complainant and another
witness, however he contended that the mode of
identification was wrong as such the verdict was
misconceived or alternatively appealing the sentence. Held:
dismissing the appeal
The trial court in giving the deterrent sentence took a look
the prevalence of robbery in the state as such the
punishment was not only punitive but aimed to serve as a
deterrent and make an example of him.
Fulfilling the deterring and exemplary element of the
criminal law. In giving the judgment the learned trial judge
took cognizance of the prevalence of robbery in the country
and the need to show societies disapproval of such an act.
 truly deserve and that by just deserts, we are just playing
God.
3. Further, the utilitarians argue that we are all guilty – so that
if we each got what we truly deserved, we would all be
punished – based on scripture – no one is holy, no, not one
– judge not, lest thou shall be judge – he that is without sin
among you, let him cast a stone at her1
4. The retributivists would also remark, in practice, all
punishment is essentially retributive because it is imposed
in response to the commission of a crime and not because
it could prevent crime.
5. It is also said that punishment itself seldom reforms the
criminal and it never deters others.
6. The utilitarians would ask the retributivists – are you not
being barbaric by inflicting suffereing on an offender,
regardless of the consequence? Aren’t you merely punishing
for the sake of punishment?
7. The retributivists would respond – is it wrong to punish an
offender for the sake of punishment – is that not a desirable
consequence? The retributivists would in turn ask the
utilitarians – if your aim is to achieve desirable
consequences by inflicting suffering on the offender, and not
because the offender has committed a crime, then why
don’t you punish an innocent man, by pretending that he is

1
John 8:7

16 | P a g e
 guilty. To this, the utilitarians would respond, that their
focus is on punishment of the morally guilty
From this, it appears that none of the theories is foolproof and
as such, it has been suggested that there should be a third
justification which will be a dual justification, called Teleological
justification (rightness of an act is determined by its end) and
Entitling justification (the problem of avoiding injustice to
individuals in the pursuit of goals).
Requirements of Criminal Liability
In law, liability (in general) may be
 strict
 absolute
 vicarious, or
 based on fault
Where liability is based on fault, a person’s actions or omissions
by themselves would not render him culpable unless he is
morally blameworthy for that act or omission
Liability is said to be strict as long as it can be shown that a
person’s act or omission has resulted in a particular undesired
result. In this case, it is immaterial whether he was at fault or
whether he is morally blameworthy – however, he is afforded
defences, if any defence is available to him

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Liability is absolute where the defendant’s moral
blameworthiness is immaterial and he is afforded no defence
whatsoever
Vicarious liability involves holding a person responsible for the
acts or omissions of another
In criminal law, the general rule is that there cannot be liability
without fault or blameworthiness. Before a person is convicted
of a crime, the law requires the ascertainment of whether he was
at fault or whether he is morally blameworthy.
From this, there are two conditions that must be fulfilled in
criminal law before a person’s guilt can be established, namely:
i. a physical act (actus reus): that the person has
committed a prohibited act
ii. a requisite mental element (mens rea): that the
commission of the prohibited act was accompanied by a
prohibited mental state or state of mind.
The two elements must coincide in respect of the same event for
the act to amount to a crime – if either element is absent, then
the general rule is that no crime has been committed. This finds
expression in the Latin maxim actus non facit reum nisi mens sit
rea – an act does not make a man a criminal unless the mind
be guilty.

18 | P a g e
ACTUS REUS
The actus reus may be –
 an act of commission or omission simpliciter
 or an act considered together with the surrounding
circumstances – for instance, with respect to the offence of
stealing, it is not merely the act of taking an item belonging
to another that is prohibited, but a taking under some
Commented [AK18]: AUTHORITY: Smith and Hogans….
circumstance, i.e. without the consent of the owner
Sometimes the actus reus involves a mental component - for
instance, in the case of the offence of possession of narcotic
substances, mere physical or manual possession does not render
the accused culpable – the actus reus includes a mental
requirement that the accused had knowlegde of the nature and
quality of what he possessed.
Sometimes the actus reus does not require the doing of an overt
act – a negative course of conduct sometimes constitutes the
actus reus – in this situation the not doing becomes the actus
reus – this is what is termed, criminal omissions.
Sometimes, the actus reus is neither constituted by an act or
omission, but by a status – the state of being in something or
being something – e.gs are the old common law offence of being
a vagrant, and the offence of possession.
No matter the form it takes, the actus reus must be committed
voluntarily for liability to arise – that is the person’s muscular
contractions and movements must be accompanied by his
19 | P a g e
cognitive faculties – that is, the accused must engage in the act
on his free will or choice, and not out of external pressure or
force .
The insistence on the voluntariness of the commission of the
actus reus implies that involuntary acts cannot form the basis of
criminal liability.
Thus, for instance, acts done in situations of the absence of
volition (will or desire) will not do – these situations include
situations of duress or coercion or where a person is not in
control of his mental faculties – instances include:
- where a person is employed as an involuntary agent
in the commission of a crime
- acts done in situations of unconsciousness like
Commented [sq19]: The appellant invited his son to a
somnambulism or epileptic fit R v Charlson window sill to watch a rat and he struck his son’s head with
a hammer resulting in grievous injuries. It came up that the
Involuntary acts are sometimes referred to as automatism – that appellant was a rather doting (loving) father and there was
no conflict between him and the son. Medical evidence
is, an act which is done by the muscles without any control by suggested that the appellant may have been in a seizure of
epilepsy at the time, and it was also shown that there was a
history of such seizures in the appellant’s family. HELD: in
the mind such as a spasm, a reflex action or a convulsion, or an the case of certain diseases, a person suffering from the
disease may be deprived of the control of his actions. A man
act done whilst suffering from concussion or whilst sleep- in the throes of an epileptic fit does not know what he is
doing.
walking. However, an act is not to be regarded as involuntary
simply because the doer does not remember it – after-the-fact
amnesia is no defence if the doer was conscious of what he was
doing at the time in question. Then again, an act is not
involuntary simply because it is unintentional or that its eventual
consequences were unforeseen. A man charged with driving

20 | P a g e
dangerously cannot be heard saying that he didn’t mean to drive
Commented [sq20]:
dangerously. R v Bratty.
Still on the point of voluntariness, sometimes the accused may
plead that they are not responsible for their actions not because
they lost control of their cognitive faculties as a result of natural
causes but as a result of external factors, such as a failure to take
a prescribed drug (non-insane automatism)
- here, although their actions are involuntary so to
speak, yet they brought it upon themselves through
their own irresponsibility – thus, the general
attitude of the law is to view such so-called
Commented [AK21]: Here the courts are very reluctant
involuntary conduct with skepticism. R v Hennessy to hold for automatism.
Commented [sq22]: the appellant was found by the
A duty to act may arise in several instances police with a stolen Ford Granada. As he was about to spark
off a police officer took the key from the ignition lock.

 a duty to act may be imposed on a person by law When he was being taken to the police station, he engaged
in a hearty conversation with the police.

 a duty may also arise where one enters into a contract to

perform a task
 other times, a duty is deliberately assumed by a person in
circumstances recognized by the law as giving rise to a duty
Indeed, he went as far as to say that had the ignition key not
been removed, he would have given the police a real run for
their money. All this while he appeared cheerful and
intelligent. However, he later appeared to be confused and
dazed and he claimed that he was diabetic and had
forgotten to take his insulin so he lost control of his senses
and he did not know that he was stealing a car. Held: The
court held that the appellant cannot be availed the defence
of automatism because he had knowledge of his actions.

 for instance, if one decides to care for a helpless

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

21 | P a g e
 However, an omission to act would not inculpate a person where
that failure to act was not by a conscious exercise of will or by a
Commented [sq23]: the accused drove and parked a car
deliberate decision Kilbride v. Lake on a street. In his absence, someone removed a warrant of
fitness (or roadworthiness) he was required to display on
the windshield
He was charged with permitting a car to be on the road
while failing to display a warrant
CAUSATION It was held that a person cannot be made criminally
responsible for an omission unless it was in circumstances
where there was another cause open to him. If this
condition is absent, any omission must be involuntary or
unconscious – hence no liability arises
For a person to be found culpable for a crime, there must be
established a causal connection between the accused and the
act or omission that constitutes the actus reus. In the absence of
this link, a person cannot be held liable for the particular offence.
Causation, therefore, is the result of a person’s action or inaction
– the law looks to see whether we can link the event with one’s
act. Causation is governed by sections 13, 64 and 81 of Act 29.

STATUTES SUPPORTING CASES

SECTION 13 OF ACT 29- CAUSING AN EVENT

(1) If a person
intentionally or negligently
makes an involuntary agent
to cause an event the
person is deemed to have
caused the event himself
1. R v MICHAEL: In this case, the
accused, a single mother seeking
to kill her baby gave a bottle of
laudanum to another woman
named Stevens to be
administered to the child a
teaspoonful every night. Stevens

22 | P a g e
 (2) Involuntary agent
means an animal, thing or
person who cannot be liable
for a crime by reason of
infancy, insanity or
something else under this
provision
(3) If an event was caused
negligently or intentionally
by a group of persons either
jointly or independently
they would be deemed to
have caused the event.
However any defense
available on any of the
persons would have effect
on his case regardless of the
fact that the other persons
might not have that defense
IN OTHER WORDS;
23 | P a g e
left the bottle on top of a shelf
and another child of five years,
who came into contact with the
bottle, administered half of its
contents to the baby. As a result,
the baby died.
HELD: the Court held the accused
liable for the murder of the child
as the five year old was found to
be an involuntary agent and his
act was akin to administration by
the accused herself.
Commented [sq24]: The first accused sought to kill his
QUEEN v SAUNDERS wife so as to marry another. He devised a plan with the
second defendant to kill his wife. He gave her a poisoned
Sene v Republic- the appellants apple. She took a bite and gave the rest of the apple to their
daughter who died thereafter. HELD: it was held that the
were brothers. The first was wife was merely an involuntary agent used to achieve the
purpose the accused persons set out to accomplish. She
acted innocently by giving the apple to the child thus she
engaged in an unlawful fight with was not liable for murder. This case also applies to transfer
intent. He intended to kill someone and ended up killing
the deceased. The second another. The law transfers the mens rea to the actus rea.
appellant threw a stone at the
deceased and after the first
started raining blows on him.
Appeal was allowed because the
trial erred by placing emphasis
on who started the fight and it
was held that the defense of
provocation should have been
brought up. Conviction of
 Where an event is caused by
the acts of several persons
acting jointly or
independently, each of the
persons who intentionally
or negligently contributed
to cause the event has
caused the event. Each of
the parties can however
prove defence on their part
(4) A person shall not be
convicted for negligently or
intentionally causing an
event if the event would not
24 | P a g e
manslaughter substituted for
murder.
OR
REPUBLIC v YEBOAH: The
accused was seen leading a
group of men chasing after an
unknown man, shouting, ‘thief’
‘thief’. The next day, the
unknown man was seen severely
battered lying unconscious on
the ground. He died later at a
hospital and the doctor
predicted the cause of death as
brain concussion as a result from
an attack with a blunt or sharp
object. The accused was arrested
and charged with his death. On a
submission of no case, HELD: The
Court held that there were no
evidence to show which of the
acts of the perpetrators caused
the deceased’s death and as such
it was upheld
R v Jordan-The defendant
stabbed the victim. The victim
was taken to hospital where he
was given anti-biotics after
 have occurred but for the
existence of some
circumstance which was not
taken into and had no
reason to be taken into
consideration
IN OTHER WORDS;
A person shall not be deemed
to have cause an event
irrespective of his act, but for
the intervention of any other
event or by any person or the
set of facts or any event that
the accused did not take into
consideration and did not have
a reason to, that event will not
have happened.
25 | P a g e
showing an allergic reaction to
them. He was also given
excessive amounts of
intravenous liquids. He died of
pneumonia 8 days after
admission to hospital. At the
time of death his wounds were
starting to heal. It was held that
he victim died of the medical
treatment and not the stab
wound. The defendant was not
liable for his death.
OR
R v CATO: The accused together
with the deceased, after a night-
out, administered bouts of
heroin to themselves by one on
another throughout the night.
They fell very ill the next morning
and the deceased died, with the
accused surviving. He was
charged with manslaughter.
HELD: The court held that, the
acts of the accused as well as the
deceased were reckless and he
should have taken into

(5) However this does not
apply for someone who
caused an event by omitting
to perform a duty
(6) A person who causes a
voluntary agent to cause an
event within the jurisdiction
while he is outside the
jurisdiction is deemed to
26 | P a g e
consideration that it could cause
harm. The court also held that de
minimis contribution to causing
an event will not suffice for the
purposes of establishing a
criminal liability for that event
Commented [sq25]: The appellant a soldier stabbed
R v SMITH another officer in a barrack room fight. When the deceased
was been rushed to the hospital he was dropped twice and
R v Pittwood-The defendant was at the hospital the wrong treatment was administered. He
was convicted for murder. He appeals.
employed by a railway company Held: the direction given by the trial judge was accurate.
The death flowed from the wound albeit the fact that the
treatment was wrong. It seems to the court that if at the
to man the gate at a level time of death the original wound is still an operating cause
and substantial cause then the death can properly be said to
crossing. The defendant lifted have resulted from the wound albeit that some other
factors caused the death. From the facts of the case, parker
the gate to allow a cart to pass cj held the death of the private was inevitable as the wound
substantial would have caused the death of the deceased.
and then went off to lunch failing
to put it back down. A train later
collided with a horse and cart
killing the train driver. The
defendant was liable for the
death of the train driver as it was
his contractual duty to close the
gate.
 have caused the vent within
the jurisdiction
(7) Subject to this act, it is
a question of fact whether
an event was reasonably
and fairly caused by a
person’s act
(8) A person would not be
relieved from liability from
an attempt to cause an
event negligently even if the
act did not cause an event
The rule here is that, A THABO MELI v THE QUEEN
would still be liable and the
act of concealment will not
27 | P a g e
R v Yeboah- the accused was
seen leading a crowd shouting
‘thief’. The next morning a man
was found unconscious in the
direction of the chase. The man
died and the accused was
arrested. It was held that there
was no evidence connecting the
death to the accused
R v White- The defendant put
some poison in his mother's milk
with the intention of killing her.
The mother took a few sips and
went to sleep and never woke
up. Medical reports revealed that
she died from a heart attack and
not the poison. The defendant
was not liable for her murder as
his act of poisoning the milk was
not the cause of death. He was
liable for attempt.
Commented [sq26]: Thabo Meli, the appellants, in
accordance with a preconceived plan, took a man to a hut,
gave him beer so that he was partially intoxicated, and then
struck him over the head. They, believing him to be dead,
took his body and rolled it over a cliff, dressing the scene to
make it look like an accident. In fact, the man was not then
dead, it being established from medical evidence that the
final cause of his death was exposure when he was left
unconscious at the foot of the cliff. The appellants
contended that the two acts were separate acts, and that,
while the first act was accompanied by mens rea, it was not
the cause of death. But that the second act, while it was the
cause of death, was not accompanied by mens rea, and
that, therefore, they were not guilty of murder. HELD: There
is no doubt that the accused set out to do all these acts in
order to achieve their plan, and as part of their plan; and it
is much too refined a ground of judgment to say that,
because they were under a misapprehension at one stage
and thought that their guilty purpose had been achieved
before, in fact, it was achieved, therefore they are to escape
liability
 be held to have broken the
chain of causation
SECTION 64- CAUSING DEATH
(a) A person would be
liable for the death of a
person if the harm he
inflicted caused the person
to die. It does not matter if
the person would have died
sooner
(b) It does not matter if
the person would not have
died for some factors such
as age, infancy, disease,
intoxication or the state of
mind of the person at time
harm was caused
28 | P a g e
Twum v Republic- The deceased,
a healthy and able-bodied police
constable, was hit in the face by
the appellant. The deceased fell
down and bled from the nose
and mouth. He was admitted in
an unconscious state to a
hospital where he died the next
day. It was found out the man
had oedema which would have
killed him later. The accused was
liable.
R v Hayward- The defendant
chased his wife out of the house
shouting threats at her. She
collapsed and died. He did not
physically touch her. She was
suffering from a rare thyroid
condition which could lead to
death where physical exertion
was accompanied by fright and
panic. Both the defendant and
his wife were unaware she had

(c) It does not matter if
the person would not have
died if he had sought
medical or surgical
treatment or the treatment
was done negligently or
improperly unless the
person had no disregard for
his own health
(d) A person would still be
liable for the death of a
person even if death
resulted from the medical
29 | P a g e
this condition.The defendant
was liable for constructive
manslaughter as his unlawful act
(assault) caused death.
R v Blaue- The appellant stabbed
a little girl he had wanted to have
sexual intercourse with. She was
rushed to the hospital. At the
hospital she refused to receive a
blood transfusion which was
essential to keep her alive since
she was a witness. She died a few
hours later and the appellant was
convicted of murder. In
dismissing the appeal Lawson l.j.
held that the maxim take your
victim as you find them included
the whole man not just the
physical man. Thus the question
was the cause of death the
Commented [sq27]: the accused assaulted another
answer the stab wound. cutting his fingers with an iron instrument. The deceased
upon reporting at the hospital refused to have his fingers
amputated but altered for an alternative treatment with
R v HOLLAND lead to the fester of the wound and eventually his death.
Counsel for the accused contended that the death of the
R v Smith- accused stabbed man. deceased resulted from his own recklessness not the wound
inflicted on him by the accused. The court held that the
accused was guilty. The question the court held is not
On the way to the infirmary the whether the deceased failed to resort to proper treatment
but rather whether the wound inflicted by the prisoner was
man was dropped several times. the cause of death. ( I think the import of this take your
victim as you find him and the gross negligence on the part
At the infirmary he was given of the victim and a doctor is to ensure that those who Cause
unjustifiable harm to others are punished by the law).
 or surgical treatment of the
harm unless such treatment
was overly negligent or
death could not have been
foreseen as a likely to result
from the treatment
However if the treatment
administered to the deceased is
inadequate it does not
exonerate the accused from the
harm caused which has led to
the death of the deceased.
30 | P a g e
incorrect treatment and he died.
Accused was held liable at the
wound was still the operating
cause at the time of death.
R v MALCHEREK, R v JORDAN Commented [sq28]: A husband stabbed his wife nine
times with a kitchen knife. She was rushed to the hospital
and put on a life support system. After a while, doctors
determined that she was brain dead and so removed her
from the machine. The accused contended that the
discontinuance of the treatment had broken the chain of
R v BASARE causation. HELD: by Lane CJ that, where a medical
practitioner adopting methods which are generally accepted
comes, bona fide to the conclusion that the patient is
The accused was caught stealing practically dead and that such vital functions as exist for
example circulation are being maintained solely by
cocoa by the deceased from his mechanical means , and therefore discontinues treatment
that does not prevent the person who inflicts the injury
house. When the deceased from being responsible for the victim’s death.
Commented [sq29]: The defendant stabbed the victim.
followed him to recover the The victim was taken to hospital where he was given anti-
stolen cocoa bag the accused biotics after showing an allergic reaction to them. He was
also given excessive amounts of intravenous liquids. He died
shot him. He was admitted at the of pneumonia 8 days after admission to hospital. At the
time of death his wounds were starting to heal. It was held
hospital but died a weeks later that he victim died of the medical treatment and not the
stab wound. The defendant was not liable for his death.
due to injury to his lower
abdomen. Counsel for the
accused contended that the
accused should be acquitted as
the cause of death should be
inadequate medical treatment
but not the gun shot by the
accused.
The court of appeal with
Granville Sharp delivering the
judgment rejected this
contention. He held that death
resulting from treatment of a

(e) A person would not be
liable for the death of a
person the time between
the death and the harm
inflicted is over a year and a
day. If it is within, the
person is liable
SECTION 81-EXCEPTIONS TO CAUSING AN EVENT
(a) A person would not be
liable for harm caused to a
person by refusing to supply
the person with the
necessaries of life and
health unless it is shown
that by reason of age,
31 | P a g e
wound unlawfully inflicted does
not however inadequate
exonerate the person who
inflicted the wound from the
consequences of his act, unless
the treatment itself amounts to
murder or manslaughter.
R v Dyson- appellant brutally
beat three month old baby
fracturing the skull. Later he
again beat the baby and it died
later of Death was said to have
caused by fracture to skull
sixteen months before.
Appellant was not liable as death
took place more than a year and
a day after
R v Senior- appellant refused to
seek medical assistance for child
and as a result the child died. The
appellant belong ‘the peculiar
people’ who believed it was
sinful to seek the help of a
 physical or mental state of physician. The appellant was
mind, control of the person convicted of manslaughter.
by the accused or in the
circumstances the person
could not have reasonably
helped himself
(a) A person would not be R v Nwaoke- appellant pointed a
culpable for disease or ‘juju’ at his wife and threatened
disorder caused to a person her that it would kill her if she did
by grief, terror or other not bring the ‘head money’ he
emotion caused by the had paid to marry her. The
person regardless of deceased hanged herself later
whether the person had because she was terrified. The
intent to cause harm or appellant was not liable although
otherwise. he was the one to induce the
terror that led the woman to kill
herself. Her death was not the
act of the appellant
(b) A person would be
liable for harm caused to
another by way of an
execution of a sentence of a
court as a result of a
prosecution or evidence
given by the person

32 | P a g e
 (c) A person is liable for
causing harm to another
because the other
contributed to the harm
being caused by trespass,
negligence, act or omission
SECTION 82- SPECIAL PROVISION AS TO MEDICAL OR SURGICAL
TREATMENT
A person who in good faith, for
the purposes of medical or
surgical treatment, intentionally
causes harm to another person
which, in the exercise of
reasonable skill and care
according to the circumstances
of the case, is or ought to have
known to be plainly improper, is
liable to punishment as if the
harm had been caused
negligently, within the meaning
of this Act, and not otherwise.
SECTION 83- CAUSING HARM BY HINDIRING EXCAPE FROM WRECK
A person who prevents another
from escaping and harm results
would be liable for the harm

33 | P a g e
MENS REA
In Act 29 mens rea is captured variously by expressions such as
“intentionally” “with intent” “knowingly” “negligently”
“unlawfully” “without lawful excuse” “dishonestly” “without
reasonable excuse”.
INTENT
Intent is the commonest form of mens rea.
The concept of intent is categorized into two tiers –
i. basic intent
ii. specific intent
Basic intent is the first level – the primary intent with which an
act is done – that is doing an act intentionally – for e.g.
intentionally throwing a stone at another or intentionally
shooting at another.
Specific intent is the second level – the secondary intent which
is formed while doing an act – i.e. the desired result – that is –
you intentionally do an act (i.e. basic intent) with a further
intention that it should achieve a particular result – that further
intention is referred to as specific intent – e.g. you intentionally
harm a person in order to cause his death – the intentional
infliction of harm is the basic intent – while the intention to kill
the person is the specific intent. Where an offence is defined so

34 | P a g e
as to require both a basic and a specific intent, both levels of
intent must be proved. R v STEANE, R v TOLSON
The concept of intent is an attempt by the law to inquire into the
state of mind of a person at the time he committed a prohibited
act. This is not easy act. Intent is governed by sec 11 of Act 29.
1. SECTION 11(1): Where a person does an act to cause an
event or contribute to cause it, he intends to cause that
event, even if he believed that event will not occur.
SENE v THE REPUBLIC: The first appellant engaged the
deceased in a fight in the course of the fight, the second
appellant threw a stone which hit the deceased to which he
fell. Whilst on the ground, the first appellant hit him,
resulting in him dying. They were charged and convicted of
murder. Held: The court held that the element of intent is
established by considering whether the accused had the
intention of killing the deceased. Such intent was to be
discerned from the instrument or weapon used in the killing
or the manner of harm that was inflicted, and not merely
who started the fight. A conviction of manslaughter was
thereby substituted for murder.
2. SECTION 11(2): Where a person does an act intending to
cause an event, but causes a different event is deemed to
have intended to cause the second event. R v QUAYE (JACK
TOLLER), R v IDIONG
35 | P a g e
Commented [sq30]: the appellant, a British subject,
entered the service of the German broadcasting system and
broadcasted through that service. He was charged with
engaging in acts likely to assist the enemy. HELD:
Commented [sq31]: the prisoner was convicted of
bigamy. She married another upon information of the death
of her husband. She married the second husband in good
faith that she was a widow. Shortly after her wedding the
Husband returned from the America. She appeals.
Held allowing the appeal. There can be no crime without a
tainted mind. Since the appellant married the husband
under bona fide believe of the death of the first husband
the charge of bigamy would not lie since the requisite state
of mind was non-existing. In order for an act to constitute a
crime there must be a mens rea or guilty intention. Non est
reus, nisi nens sit rea.or actus non facit reum nisi mens sit
rea.
Commented [sq32]: The accused, in his quest to expedite
his aim of stealing administered to the deceased chloroform
so that he sleeps. The dose of chloroform however resulted
in his death. HELD: The court held that in such a case, the
degree of criminality depends on the knowledge of the and
consciousness on the part of the accused that death is likely
to result from what he does, that is whether or not he
willfully incurred the risk of causing the death of another
person.
Commented [sq33]: The first appellant with the intention
of committing abortion on a pregnant woman, instructed
the second appellant to administer a herbal preparation to
the woman. The second appellant, believing he was giving
the medicine to a woman undergoing natural miscarriage
administered the medicine. The woman died, and they were
convicted of murder.
Held: setting aside the verdict of murder against the first
appellant and giving a verdict of manslaughter.
The question asked by the court was whether the act was
likely to have a endanger human life in the sense that a
reasonable man would expect it probably would do so?
Upon evidence it was unlikely that a reasonable would
believe that the administered concoction would not lead to
the death of the woman hence, the verdict of manslaughter
and not murder. If it was held otherwise then the court
would have held that idiong intended to kill the woman.
 3. SECTION 11(3): Where a person did not take reasonable
care in his act, such that an event wouldn’t have occurred if
he had, is deemed to have intended to cause that event
unless he did not intend to cause that event.
SERECHI v THE STATE: The appellant were employees of the
Ashanti Goldfields LTD. In Obuasi. They were conveying
firewood trucks on a locomotive train from Obuasi to a
village. Some non-employees jumped unto the trucks as the
train started moving, clearly to catch a free ride. The
appellant allegedly approached the deceased, beat him up
and consequently, pushed him out of the trucks as it
gathered speed. He was ran over by the train and died as a
result. The appellant was convicted of murder. HELD: The
court held that there was sufficient evidence of an intention
to cause death and the infliction of the unlawful harm. If the
appellant had taken reasonable caution, the death would
not have been caused.
Commented [sq34]: The appellant, while manning a
REPUBLIV v ADEKURA, barrier as a member of the people’s militia shot a moving
vehicle at about 5:30 am. When the driver refused to obey
an order to stop. One of the bullets killed a passenger on
the vehicle. He appealed against a conviction of murder.
AKORFUL v THE STATE: the appellant was charged and Held: to shoot a round of bullets at a moving car at a time
when visibility is poor and limited, is a dangerous act. The
convicted for the murder of his brother in law. He heard his act of the accused exposed the occupants of the car to
serious risk of death, although his aim was only to
dog barking. Fearing it would be a thief lingering about and immobilize the car. The provision in section 11(3) which
ensures to exculpate an accused is predicated upon the fact
with the intention of scaring him off took his gun and shot. that he had used reasonable caution and observation. There
being no such evidence of reasonableness in act of the
In effect he had shot his brother in law. The main issue in appellant, the appeal was dismissed. Section places a
subjective test on the accused.
this case is whether the killing is intentional. Held: The law
presumes that an accused person intended to cause death
if it would have appeared to any reasonable person that, if
36 | P a g e
 he did not use reasonable caution and observation that
there would be great risk of his act causing or contributing
to cause death. The presumption of intention is rebuttable
only if the accused raises a reasonable doubt about his
intention. From the facts the appellant claim he shot to
scare off the thief and nothing else, the trial judge should
have taken cognizance of that and directed the jury that the
presumption was not absolute but rebuttable.
4. SECTION 11(4): Where a person causes an event against a
group of people, he intends to cause harm to any one of
them. He is liable even though the victim may not be in his
Commented [sq35]: The appellant, an organizer of an
contemplation. R v GYAMFI opposition political party, was leading his supporters
towards a crowd of the other party. His supporters started
5. SECTION 11(5): Where the accused intends to cause harm throwing stones in the supporters of that party. The
appellant threw a stone, akin to a human fist, into the
to a person but the act takes effect on another person, he crowd, hitting the deceased, killing him. He was convicted of
murder. He appealed.
HELD: The court held that, there was sufficient intention to
is deemed to have intended to cause that event on the cause harm by the act of throwing a large stone into a
crowd. His conviction was reduced to manslaughter
other person, although he may not have been in his nevertheless.

contemplation. AMETEWEE v THE STATE:
6. SECTION 11(6): A defence is admissible to exculpate the
accused in Section 11(5).
MOTIVE
The Criminal and Other Offences Act, 1960 (ACT 29) do not
Commented [sq36]: the appellant, a police officer
stationed at the Flagstaff House, fired three shots at the
President. One of the shots hit and killed the President’s
body guard. The appellant contended that his aim was to kill
the President and that he did not at anytime form any
intention to kill the deceased. Therefore, it would be
illogical to hold that he intended to kill the deceased. He
was convicted of murder. HELD: The court held that, the
appellant was labouring under a misapprehension that
because his aim was to kill the President, if his bullet hit and
killed the deceased by mistake he cannot escape liability by
pleading that he did not intend to kill the deceased.

provide any express provisions on motive. It is however

recognized in our courts. Motive is not a defence in our courts
1. BLAKE v. DPP: A vicar wrote a biblical quotation on a
concrete pillar to protest against the Gulf War. He claimed

37 | P a g e
 to have the consent of God. Held: He was found to be guilty
of criminal damage. The court held that (1) Divine command
is not a lawful excuse under the common law. (2) The act
was not capable of protecting property in the Gulf States,
as it was too remote. (3) Defence of necessity or duress
unsuccessful, as divine command did not, objectively
speaking, create an immediate danger or fear of danger.
2. HYAM v DPP: The appellant had been having a relationship
with a Mr Jones. Mr. Jones then took up with another
woman Mrs Booth and they were soon to be married. On
hearing this news, she went to Mrs Booth’s house and
poured petrol through the letter box and ignited it with
matches and newspaper. She then drove home and did not
alert anyone of the incident. Mrs Booth and her young son
managed to escape the fire but her two daughters were
killed. She contended that she did that to make Mrs Booth
to leave the town. HELD: The court
held that, the accused knew that it was probable that her
acts would result in grievous bodily harm even though she
did not desire to that result about.
3. AWEDAM v THE STATE: the appellant run over and killed
the deceased with his car. He was convicted of murder. He
claimed it was an accident. The prosecution however
contended that he had a motive to kill the deceased since
he was a witness in favor of the prosecution against his
friend who had been convicted.

38 | P a g e
 Held: that the motive was not relevant to find someone
liable for a murder but rather that he intended to kill the
person.
NEGLIGENCE
It is in Twofold: inadvertence causing injury and a professional
acting without the requisite skill required at the particular
moment. Not taking enough care when doing the act or not
knowing how to do it properly is the prohibited state of mind i.e.
the mens rea. When death results from negligence the
conviction is manslaughter when the act amounts to a reckless
disregard for life.
SECTION 12: A person causes an event negligently, where,
without intending to cause the event, that person causes it by
a voluntary act, done without the skill and care that are
reasonably necessary under the circumstances. Acting
without the required competence falls under this section. R v
MENSAH, STATE v TSIBA, R v AWONU, STATE v KWAKU NKYI:
The accused, a student nurse, was asked to treat a sick child. He
agreed to do so, and injected the child twice with what he
believed was mepacrine. The child’s condition immediately
deteriorated and he died within a few hours. Post mortem
examination revealed that death was due to arsenic poisoning.
The accused was charged with manslaughter and with
practising medicine without being registered. Held: the accused
was negligent in administering the wrong medicine however his
negligence did not amount to a reckless disregard to human life
39 | P a g e
Commented [sq37]: The appellant, a hunter, saw a bush
shaking in an area regularly used by people. He shot in that
direction without first ascertaining the nature of the object.
It turned out that the object was a human being. Held: The
appellant was held to be negligent as he should have first
check to see the object in the shaking bush.
Commented [sq38]: the appellant whilst on a hunting
expedition shot and killed, another in the mistake belief that
he was an animal. Before he shot he had taken some
precautions to determine the nature of the object. Having
been sure it was an animal he shot and it turned out to be
another hunter.
Held: in quashing the conviction of manslaughter akuffo
addo jsc held that in an action of manslaughter by a
negligent act the nature of the act must be one in the
accused had “reckless disregard for human life”. Since the
appellant took steps to ascertain the nature of the object it
could not be said he act negligently causing the death of
another. The degree of negligence required under section
12 falls short of the standard resulting in recklessness. It is a
little more than what is required in civil litigation
Commented [sq39]: the appellant went shooting in the
forest. He approached a stream used by the villagers and
saw an object in the night. He shot at it killing it. It turned
out to be a human being. He was convicted for
manslaughter by negligence. He appeals against the
conviction.
Appeal against the conviction dismissed but in regard to the
sentence it was reduced to the circumstances leading to the
shooting.
to sustain a conviction of manslaughter. How he was found
guilty of practicing medicine without a license.
1. SECTION 51: A person who causes the death of another
person by an unlawful harm commits manslaughter, but if
the harm causing the death is caused by negligence that
person has not committed manslaughter unless the
negligence amount to a reckless disregard for human life. R
Commented [sq40]: A doctor was convicted of
v BATEMAN: manslaughter arising out of his treatment of a woman in
childbirth. HELD: The court held that, In order to establish
2. SECTION 72: A person who negligently and unlawfully criminal liability the facts must be such that in the opinion
of the jury the negligence of the accused went beyond a
causes harm to any other person commits a misdemeanor. mere matter of compensation between subjects and
showed such disregard for the life and safety of others as to
amount to a crime against the State and conduct deserving
4. SECTION 73: A person who punishment.

(a) being solely or partly in charge of a steam-engine, machinery,

ship, boat, or dangerous thing or matter of any kind, or
(b) having undertaken or being engaged in medical or surgical
treatment of a person, or
(c) having undertaken or being engaged in the dispensing
supplying, selling, administering, or giving away of a medicine or
a poisonous or dangerous matter, negligently endangers the life
of any other person, commits a misdemeanor. OKUTU v THE
REPUBLIC R v NOAKES
CAPACITY/EXEMPTION
This is governed by section 26 and 57 of ACT 29.
SECTION 26 OF ACT 29
Commented [sq41]: The appellant left his car in the
middle of the road without indicating warning signals. A car
ran into it causing injury to its occupants.
HELD: The court held that the appellant was guilty of
causing harm by negligently leaving the car out without any
warning signals
Commented [sq42]: A chemist was given two bottles to
fill with two liquids, one harmless and the other poisonous.
He mistakenly switched the bottles with the result that the
dangerous drug was represented as the harmless one. The
patient died when he took a dose of what he though was
the harmless drug. It was held that there was clear evidence
of negligence

40 | P a g e
 For the purposes of the R v Waite-defendant was
criminal law a person under under 14 and was convicted of
twelve years of age is rape. On appeal he was
incapable of committing a acquitted of that charge
criminal offence.(doli incapax)because it was presumed that
he was physically incapable of
ILLUSTRATION committing the offense- Lord
If A, aged eleven years Coleridge
administers poison to B., A is R v Tatam-it was held that
not criminally responsible and boys under 14 years could not
is considered incapable of be accomplices in sodomy as
understanding the under law they are unable to
consequences of those actions
from a legal perspective
ACT 57(5,6) OF 1992 CONSTITUTION
(5) The President shall not, NPP V AG, NPP V Rawlings,
while in office as President, be Amidu v Kuffour
personally liable to any civil or
criminal proceedings in court.
(6) Civil or criminal Amidu v Kuffour
proceedings may be instituted
against a person within three
years after his ceasing to be
President, in respect of
anything done or omitted to
be done by him in his personal
capacity before or during his

41 | P a g e
 term of office notwithstanding
any period of limitation except
where the proceedings had
been legally barred before he
assumed the office of
President.
DIPLOMATIC IMMUNITY- ART 31 OF VIENNA CONVETION ON
DIPLOMATIC RELATIONS
A diplomatic agent shall enjoy Armon v katz, Garcia v
immunity from the criminal Torrejoh, tsatsu v the republic
jurisdiction of the receiving
State.
He shall also enjoy immunity
from its civil and
administrative jurisdiction
except in certain cases

The law is not saying that what a child below 12 does is criminal
but since he is below 12 he is excused from punishment – rather,
the law is saying that that child cannot commit a crime.
There was what was termed mischievous discretion – where, in
respect of a child between ages 7-14, a rebuttable presumption
of innocence was established, which could be rebutted by
evidence that the child knew that what he was doing was wrong.
The concept of mischievous discretion with respect to infants is

42 | P a g e
NOT APPLICABLE in Ghana – the presumption of innocence until
proven guilty only applies to persons who are 12yrs and above.
However, there appears to be an unsettled issue in the area of
sexual offences with respect to children between ages 12-16. In
Ghana, the age of sexual consent is 16yrs – that is to say, a child
below 16yrs is incapable of giving his/her consent to sexual acts.
Therefore, under sec. 101, a person who engages in sexual
conduct with a child under 16yrs is guilty of defilement – it does
not matter whether the child consented to the act. Thus, where
the child is below 16yrs, his or her of lack of consent puts the
perpetrator in jeopardy of being convicted for defilement
But what if the child is the perpetrator of that sexual offence?
Two scenarios
1. A boy of 14yrs has sex with a girl of 13yrs with her consent
– has any of them committed defilement, since neither
partner is of the age of consent?
2. A boy of 15 forcibly has sex with a girl of 17 – is the boy
liable although by the operation of law he cannot consent
to a sexual act?
The problem is this: Under sec. 26 both boys in scenarios 1 & 2
are doli capax, that is, they are legally accountable for their
actions, because they are above 12 yrs – however, under sec.
101, the law is that both boys cannot consent to sexual acts – so
it seems that although on the face of it they have committed a
criminal offence, yet the law in the same breadth is saying they
43 | P a g e
cannot consent to sexual acts – so wherein lies their liability, if
any. Is it the case that where the child is the victim then the law
holds that he/she cannot consent but that where he is the
perpetrator the law assumes that he should be held liable for
violating another’s sexual privacy?
In the case of scenario 2, it may sound plausible to suggest that
since the 15yr old boy applied force to have a sexual connection
with the girl, the law should hold him liable since to hold
otherwise would lead to the incongruous situation of excusing
an offender who is clearly doli capax merely on the thin ice
ground that he cannot consent to a sexual act.
Scenario 1 presents an even more difficult hurdle – this is
because there was no force applied in the sexual connection –
both parties were willing participants – both are doli capax –
both cannot consent to sexual acts – their act was fully
consensual – can each be held liable for defiling the other?
An attempt is made at common law to address this problem by
the institution of an irrebuttable or a conclusive presumption
that a child under 14 yrs is incapable of committing rape – that
is, he is malita non supplet aetatem – physical incapacity to
commit the offence.
There appears to be no concept of malita non supplet aetatem
on this point under the Criminal Offences Act.
Would a Ghanaian court adopt the malita non supplet aetatem
principle to hold that since a child under 16yrs is legally incapable

44 | P a g e
of granting his/her consent to sexual acts, the 15yr old boy in
scenario 2 is to be conclusively presumed to be incapable of
committing a sexual offence because he is not yet 16yrs and so
should be exculpated from liability?
DEFENCES
Defences are excuses or extenuating circumstances (i.e. factors
that make an accused person’s actions excusable or less
blameworthy) – that is defences operate to either excuse an
accused from liability or limit his liability. They can be partial or
complete.
A complete defence operates to totally exculpate the accused
from liability. While a partial defence does not entirely excuse
from criminal liability – it goes either to reduce a charge to a
lesser offence or to reduce punishment to a lesser sentence
IGNORANCE OR MISTAKE OF FACT AND IGNORANCE OR MISTAKE
OF LAW
Ignorance or mistake of fact can excuse from criminal
responsibility. However, ignorance or mistake of the law cannot
excuse from criminal responsibility – or as we say, ignorance of Commented [sq43]: (1)A person shall not be
punished for an act which, by reason of ignorance or
the law is no excuse – ignorantia juris non excusat mistake of fact in good faith, that person believes to
be lawful.
(2)A person shall not…be exempt from liability to
This is governed by section 29 of Act 29. R v TOLSON punishment for an act on the grounds of ignorance
that the act is prohibited by law.

NYAMENEBA v THE REPUBLIC: The appellants who were
members of a religious sect had been growing “herbs of life” for
four years or more. They used the herbs publicly for invocation,
at their worship, for food and medicine. Upon report being made
Commented [sq44]: the accused was charged with
bigamy for marrying another man while her husband was
still alive and their marriage was still subsisting. It appeared
that she was led to believe that her first husband was dead.
In acquitting her, it was held that a bona fide belief by the
accused in the death of her husband at the time she
contracted a second marriage afforded her a good defence
on the charge of bigamy

45 | P a g e
to the police against the sect, the police investigated and found
the herbs to be Indian hemp. The appellants argued that they did
not know at all that the herbs were indian hemp. HELD: Ollennu
JSC held that, While ignorance of the law is no defence,
ignorance of fact is a complete defence. He concluded that, the
appellants were honestly ignorant of the fact that the herbs in
question are Indian hemp and as such, a plea of ignorance of fact
which under section 29 (1) of Act 29 is a good defence.
FOLI VIII v THE REPUBLIC: the appellants were charged with
causing harm to a corpse they had cremated without lawful
authority. One of the appellants’ ground of defence was that it
was an established and long-standing custom in their area that
any person, such as the deceased, who had violated custom but
was not purified before dying, should not be accorded a decent
burial but should be cremated. HELD: It was held that The act of
cremation cannot be justified just because it is supported by a
custom which is contrary to the law
IGNORANCE OR MISTAKE OF FACT/IGNORANCE OR MISTAKE
OF LA-SECTION 29
(1) A person shall not be Nyameneba v the state- the
punished for an act which, appellants were members of a
by reason of ignorance or religious sect who honestly
mistake of fact in good believed that the substance
faith, that person believes they were using were known
to be lawful. as herbs of life when it was
indeed Indian hemp. The
appellants had been openly
46 | P a g e
 Exceptions to this rule
according to mensa-bonsu is
when the offence is one of
strict liability as seen in R v
Gibson, belief is not a
reasonable one as seen in R v
King, the mistake does not go
to the root of the offence and
the defendant was negligent
47 | P a g e
using the ‘herbs of life’ and
voluntarily showed it to the
court.
R v Tolson- The appellant
Commented [sq45]: the appellant in a drunken state
married in Sept 1880. In Dec entered a house which he mistook for a brothel and
1881 her husband went indecently assaulted a girl under the age of twelve years
who lived there. The offence being one of strict liability: the
missing. She was told that he defence could not avail to him
had been on a ship that was
lost at sea. Six years later,
believing her husband to be
dead, she married another. 11
months later her husband
turned up. She was charged
with the offence of bigamy.
She was afforded the defense
of mistake as it was reasonable
in the circumstances to believe
that her husband was dead.
Exception in R v wheat
Commented [sq46]: The accused was charged with
&stocks-appellants had bigamy that is marrying stocks whilst his marriage with his
reasonably belief that divorce adulteress wife was still subsisting. He pleaded in defence
he had bona fide belief that the said subsisting marriage had
had been obtained and this ended as he had applied for divorce and his solicitor had
sent a telegram informing him that the divorce petition was
was held to be no defense and ready to be assented to with his signature.
Held: he was convicted with bigamy.
so they were convicted. The court took the opinion that the present instance
needed to be distinguished from r v. Tolson as here the
R v Gibson- appellant in a marriage was to have come to existence after a divorce and
not the presumption of death of the wife. In the
drunken state sexually circumstance the defence could not lead to his acquittal but
rather it would lessen his conviction.
assaulted a minor. He was
convicted because offense
was that of strict liability
 R v King= appellant did not
have reasonable belief to
believe that second marriage
was invalid as he did not make
inquiries

(2) A person shall not, except Foli VIII v the Republic-the

as in this Act otherwise
expressly provided, be
exempt from liability to
punishment for an act on
the grounds of ignorance
that the act is prohibited by
law.
appellants were charged with
unlawfully cremating a corpse.
The appellants defence was
that they were acting in
accordance to their custom as
the deceased failed to perform
some purification rites before
she died. It was held that The
act of cremation cannot be
justified just because it is
supported by a custom which
is contrary to the law

CONSENT
Consent is a common law defence and it is not expressly stated
as a general defence under Act 29. In whatever form it takes,
consent must be voluntarily given – that is, freely given and the
person giving the consent must be of full age and capacity.
Retrospective consent will not do. Consent validly obtained and

48 | P a g e
sanctioned by law excuses from criminal responsibility (It is a full
defence).
Consent is governed by section 14 and 42 of ACT 29. Sec. 14 sets
the specific rules on consent is void or negatived – while sec. 42
sets the limits to the giving of consent.
CONSENT-SECTION 14
(a) a consent is void if the
person giving the consent is
under twelve years of age, or
in the case of an act involving
a sexual offence, sixteen
years, or is, by reason of
insanity or of immaturity, or
of any other permanent or
temporary incapability
whether from intoxication
or any other cause, unable to
understand the nature or
consequences of the act to
which the
consent is given

ILLUSTRATION
A induces a person in a state
of incapacity from idiocy or
intoxication, or a child under
12 yrs to consent to the hair of

49 | P a g e
 that person being cut off by A.
The consent is void

(b) a consent is void if it is R v Williams-a choirmaster

obtained by means of deceit under the pretext of improving
or of duress; a girl’s voice had sex with her.
It was held that the consent
was obtained by deceit and so
Consent is obtained by deceit the consent was vitiated
or fraud if it would have been R v Bolduc & Bird- the first
refused but for deceit or fraud appellant was a doctor who,
– sec. 14(f) about to conduct a vaginal
examination of a patient,
Duress is an act done with invited his lay friend, the
force, harm, constraint, or second appellant to be
threat, with intent to cause a present and watch the
person, against that person’s procedure. The doctor
will, to do or abstain from introduced the friend as a
doing an act medical intern and in
consequence the woman
ILLUSTRATION consented to his presence.
If a person induces a child to They were charged with
have sexual intercourse by indecent assault. Held:
threats of imprisonment, the although her consent had
consent is void been procured by fraud, it did
not affect the nature and
quality of the act, that is, the
medical examination, to which
she consented. Also that the
50 | P a g e

(c) a consent is void if it is
obtained by or under the
exercise of an official, a
parental, or any
other authority; and the
authority which is exercised
other-wise than in good faith
for the
purposes for which it is
allowed by law, is for the
purposes of this section, a
power unduly
exercised (Undue Influence);
Consent is obtained by the
undue exercise of authority if
it would have been refused
but for the exercise of that
authority – sec 14(f)
(d) a consent given on behalf Re A- refusal of consent to
of a person by the parent, separate conjoined twins was
brought to court and it was
51 | P a g e
second appellant’s act did not
amount to indecent assault as
he merely stood and looked
on.
Re T- woman did not consent
to blood transfusion under the
influence of the mother
because she was a Jehovah
Witness. It was held that the
hospital was right in giving her
the blood transfusion as the
refusal to give consent was
because of the presence of the
Commented [sq47]: ILLUSTRATION.
mother A the chairman of a company, consents to B drawing
Re Nichol- the husband of the money from the company to which A knows B does not
have a right. If A does not honestly believe that the action
school manager asked the is in the interest of the company the consent is void, and B
commits the criminal offence of stealing unless B has acted
victim, a 13 year old girl, to sit in good faith
on his private part and she did.
It was held that a person of
authority taking indecent
liberties although person does
not resist he is still liable for
assault. Here, consent was
vitiated because it was under
undue influence.
 guardian of that person, or any granted because such refusal
other was not for the benefit of the
person authorised by law to people involved.
give or refuse consent on
behalf of that person, is void if
it is not
given in good faith for the
benefit of the person on
whose behalf it is given;

(e) a consent does not have

effect if it is given by reason of
a fundamental mistake of fact;

(f) a consent is, for the

purposes of this section,
obtained by means of deceit or
duress, or of the
undue exercise of authority, or
to have been given by reason
of a mistake of fact, if it would
have been refused but for the
deceit, duress, exercise of
authority, or mistake;

(g) the exercise of authority,

for the purposes of this
section, is not limited to the
exercise of
52 | P a g e
 authority by way of
command, but includes
influence or advice
purporting to be used or
given by virtue of an authority;
(h) a person shall not be DPP v Morgan- the appellants
prejudiced by the invalidity of
had sex with a friend’s wife. It
a consent if that person did was held that if such mistaken
not know, and could not by the
belief of consent was genuine
exercise of reasonable
and honest it would have been
diligence have known, of the a defense. The jury did not
invalidity believe their belief was
genuine.
SECTION 42- USE OF FORCE IN CASE OF CONSENT
(a) the killing of a person R v Cato-the appellant injected
cannot be justified on the heroin and farmer died. It was
ground of consent; held that consent was not a
defense to manslaughter
R v Pike- the defendant
convinced the deceased to
take a drug so that he would
be able to satisfy his sexual
desire of having sex with her
unconscious. She died and it
was held that the consent
obtained was not a defense.
(b) a wound or grievous harm R v Brown- the appellants
cannot be justified on the achieved sexual gratification
by performing sadomasochism
53 | P a g e
 grounds of consent, unless the
consent
is given, and the wound or
harm is caused, in good faith,
for the purposes or in the
course of
medical or surgical treatment;
(c) consent to the use of force
for the purpose of medical or
surgical treatment does not
extend
to an improper or a negligent
treatment;
(d) consent to the use of force
against a person for purposes
of medical or surgical
treatment, or
otherwise for the benefit of
that person may be given
against the will of that person
by the
54 | P a g e
to themselves. It was held that
bodily harm was unlawful and
so consent was not a defense.
R v Donovan- the girl
consented to being beaten by
the defendant in order to
satisfy his sexual passion. It
was held that it is an unlawful
act to beat another person
with such degree of violence
that the infliction of bodily
harm is a probable
consequence, and when it is
proved, consent is immaterial.
Re W(a minor)- an anorexic
minor failed to give consent to
her being transferred to a
facility specialized in treating
eating disorders. It was held
that the consent of the court
overrode her refusal of
consent
 father or mother or guardian
or a person acting as the
guardian, if that person is
under
eighteen years of age, or by a
person lawfully having the
custody of that person if that
person
is insane or is a prisoner in a
prison or reformatory, and,
when so given, cannot be
revoked
by that person;

(e) where a person is

intoxicated or insensible, or is
from a cause unable to give or
withhold
consent, force is justifiable
which is used, in good faith
and without negligence, for
the
purposes of medical or
surgical treatment or
otherwise for the benefit of
that person, unless a
person authorised by that
person or by law to give or

55 | P a g e
 refuse consent dissents from
the use of
that force;

Commented [sq48]: The accused were seen at the venue

(f) a party to a fight, whether
lawful or unlawful, cannot
justify, on the grounds of the
consent of
another party, force which
that party uses with intent to
cause harm to the other party;
R v Coney- the defendant was
engaged in an unlawful fight. It
was held that such consent
was not a defense as the act
itself was unlawful
of a prize fight. It was established that some persons in the
crowd were encouraging the fight. However, the three
accused were not seen to do anything and there was no
evidence how they got there or how long they stayed. Held:
one can be held to have wilffuly encouraged the
commission of a crime if he was voluntarily and purposely
present at and witnessing the commission of the crime and
offers no opposition thereto though he might be reasonably
expected to prevent it and had the power so to do or at
least express dissent. The presence of the accused at the
fight amounted to abetting despite the fact that they did
not act or utter a word to that effect. Non accidental
presence however is not conclusive of abetting.

(g) a person may revoke a

consent which that party has
given to the use of force
against that
person, and the consent when
so revoked shall not have
effect or justify force.

PROVOCATION
Devlin gave the classic definition of provocation in R v Duffy
[1949] 1 All ER 932, as:
…some act, or series of acts, done…which would cause in any
reasonable person, and actually causes in the accused, a sudden
and temporary loss of self-control, rendering the accused subject

56 | P a g e
to passion as to make him or her for the moment not master of
his mind.
The philosophy behind the defence is that a person who kills in
a rage or fit of anger intended clearly to kill – however, the killing
was the product of extreme anger in the face of an intolerable
situation – thus, the killer was not a calculating cold-blooded
murderer because he did not have time to reflect on his action –
his was a crime of passion or a hot-blooded crime – so he should
be excused to some degree
Thus, if a person kills another intentionally it is murder –
however, if a person kills intentionally but as a result of
provocation, the killer will not be held responsible for murder
but for the lesser offence of manslaughter
Therefore, provocation is a partial defence – and it operates only
in cases of homicide – that is, the defence of provocation can
only be raised by an accused who is under a charge of a crime of
Commented [sq49]: A person who intentionally causes
homicide. Section 52(a) of Act 29 the death of another person by unlawful harm commits
manslaughter and not murder or attempted murder, if that
It is not every kind of provocation that will suffice. To be person was deprived of the power of self-control by an
extreme provocation given by the other person as is
considered, it must be provocation of an extreme kind that mentioned in sections 53, 54, 55 and 56

causes the accused to lose his power of self-control. To be

considered, the extreme provocation that causes the killer to
lose his power of self-control, must be prescribed by law.
Provocation is governed by section 53 of Act 29.
PROVOCATION-SECTION 52A

57 | P a g e
 A person who intentionally ALL CASES
causes the death of another
person by unlawful harm
commits
manslaughter, and not murder
or attempted murder, if that
person
(a) was deprived of the
power of self-control by an
extreme provocation given
by the other
person as is mentioned in
sections 53
SECTION 53- The following may amount to extreme
provocation:
(a)an unlawful assault and R v ekpo- the accused received
battery committed on the a wound in his eye and the
accused person by the other deceased also received a
person, in an unlawful fight wound by a machete and fell.
or otherwise, which is of a The accused ran up to him an
kind, in respect of its violence inflicted a fatal wound. It was
or by reason of held that he was provoked not
accompanying words, only by the wound he received
gestures, or other but also by the attack on them
circumstances of insult or by deceased and his clan

58 | P a g e
 aggravation, that is likely to
deprive a person of ordinary ZINTEGE v THE REPUBLIC,
character and in the KUO-DEN SOBTI v THE
circumstances in which the REPUBLIC
accused person was, of the
power of self-control;
Mere words will not suffice
ODURO v THE REPUBLIC
(b) the assumption by the State v Ayi Grunshie- the
other person, at the accused was convicted for the
commencement of an murder of another whiles
unlawful fight, of an attitude hunting. He claimed the
manifesting an intention of deceased had shot him and
instantly attacking the accused spoken in a language unknown
person with deadly or as such he retaliated. The trial
dangerous means or in a judge in directing the jury held
deadly manner; that the provocation should be
in such a manner that there
was a threat of loss of life or
grievous wound so to compel
the accused to loss his self-
control. He appealed from his
conviction
HELD: that the jury were not
properly directed but rather
the provocation must be of
59 | P a g e
Commented [sq51]: the appellant killed the nephew the
deceased after he was attacked by the deceased who had
slept with his girlfriend. The attack was of a nature that it
compelled the appellant to seize the stick the deceased was
using and he struck the deceased with a single blow killing
him. His defence of self defence failed since the force was
excessive. On appeal the court held that the defence of
provocation could avail to him since the deceased acted in a
manner or of a kind that caused the appellant to loss his
self-control.
Commented [sq52]: appellants were dagarti’s who killed
a Fulani who was allegedly stole their cattle. Their appeals
to the court of appeal was dismissed and on further appeal
to the court of appeal they contended that the direction on
provocation was not properly put before the jury and that
the jury being southerners did not appreciate the value of
cattle
Held: that stealing was not one of the matters that could
amount to provocation and therefore there was no reason
to leave the issue of provocation to the jury.
Commented [sq50]: the appellant killed the wife after
the deceased slapped and rained insults on him. He claimed
to have been provoked by the words of the wife.
Held: mere words did not constitute provocation. Under our
law for there to be provocation there must be an assault or
battery accompanied by words rendering the assault and
battery violent in itself.

(c) an act of adultery
committed in the view of the
accused person with or by the
wife or the husband, or the
criminal offence of unnatural
carnal knowledge committed
in the husband’s or wife’s view
on the wife, or the husband, or
child; and
(d) a violent assault and R v Konkomba- Tordo
battery committed in the view Konkomba and Kwabina
60 | P a g e
such kind or manner
accompanied by words which
would deprive an ordinary
man of his self- control. The
court held the act to amount
to provocation.
Kekey v republic-
State v kwadwo fori-mere
confession would not amount
to provocation
Agyemang v Republic-
deceased danced adowa with
appellant’s wife and later went
indoors. Adultery was not
committed in his view
R v tekyi- appellant found wife
in circumstances which
pointed strongly of her
committing adultery. Held that
adultery was not committed in
his view and so provocation
would not lie
Commented [sq53]: the appellant a blind man stabbed
the wife for allegedly indulging in extra marital affairs. He
claimed to have been proved by the fact that the deceased
aided the man to escape
Held: that the essential of murder had been established
We think if a blind man caught his wife in the act of adultery
and he, on the spur of the moment inflicted the fatal injury,
it would be wrong to deny him the defence of provocation,
for the only reason that he could not see the act of adultery
with his own eyes. In those circumstances, it would seem to
us reasonable to say that for a blind man the expression “in
the view of” reasonably means “to the hearing of.”
Commented [sq54]: The appellant suspected his wife,
the deceased, of adultery. On the fatal day, when his wife
and her mother were going to the farm, the appellant
suddenly appeared, armed with a cutlass and attacked his
wife, who died later the same day from the injuries
sustained. In his defence, the appellant alleged that his
deceased wife had confessed to adultery and had slapped
him. In this he was disbelieved by the trial judge, who
convicted him for murder.
Held:the trial judge decided correctly. A confession to
adultery alone will not amount to such extreme provocation
as would reduce the murder to one of manslaughter.
Commented [sq55]: the accused suspecting the wife of
infidelity with the deceased followed him and the wife to
the deceased’s house after they left a funeral ground
together. The appellant waited for a while and after what
seems to be a sexual affair between the two, the deceased
exited the house and was killed by the appellant. At trial his
plea of provocation was rejected and was convicted for
murder. He appealed
Held: the onus of proving provocation was that of the
accused. The defence of provocation in 53(C) is to the effect
that the accused saw the wife committing adultery with
another, therefore there was no question of the objective or
subjective test
 or presence of the accused
person on the wife, husband,
or child, or parent, or on any
other person who is in the
presence and in the care or
charge of the accused person.
61 | P a g e
Basare went out hunting.
Basare returned to the village
to report that he had shot
Tordo Konkomba in the bush
during the hunt. The next day,
Tordo’s father and uncle and
some other people pounced
on Basare and beat him to
death. They claimed that by
seeing their son and nephew
wailing in agony, they were
provoked to kill Basare. HELD:
According to Ollennu JSC, [sec
53(d)] can apply only where
the assault and battery were
committed “in the view or
presence of” the [accused].
There is no evidence that the
appellants (or either of them)
witnessed the act of the
shooting of Tordo Konkomba,
or were anywhere within the
precincts where Tordo was
shot, so that they could have
seen it done. Seeing the
unfortunate Tordo in agony
some time after he had been
 shot cannot relate back to the
moment of shooting.
R v rose- provocation lies as
assault on mother was
committed in his view

EXCLUSION OF BENEFIT OF PROVOCATION-SECTION 54

Despite proof on behalf of the accused person of a matter of
extreme provocation, the criminal offence shall not be reduced
to manslaughter if it appear
(a) that the accused person ATTA v THE REPUBLIC: the
was not in fact deprived of appellant caught his wife and
the power of self-control by his brother having sex. Later
the provocation; or on he discussed the issue with
the wife as to why she went in
for his brother. He was not
satisfied with his wife’s
explanation, so he invited her
to the latrine and slashed her
to death with a cutlass.
He then returned to his room,
took his gun and proceeded to
his brother’s shop. He had a
short discussion with the
brother and shot him to death.

62 | P a g e

(b) that the accused person
acted wholly or partly from a
previous intention to cause
death or harm, or to engage in
63 | P a g e
HELD: It was held that at the
time he killed his wife and
brother, he was not in a state
of passion as to make him no
longer master of his mind. And
that in the circumstances, he
was not deprived of the power
of self-control.
Donkor v The Republic: the
appellant killed the deceased
out of fear that she would
report him to the chief and the
community for stealing her
farm fruits. He argued that he
was provoked by the shouts of
the deceased. HELD: The
defence of provocation was
not available to a person
causing the death of another if
the person had, prior to the
provocation evinced the
intention to kill.
Boateng v republic- after
refusal by police to release
family members after their
arrest after a fight between
 an unlawful fight, whether or the two factions over a piece
not the accused person would of land, accused met deceased
have acted on that purpose at and a fight issued. Accused
the time or in the manner in pulled out a dagger and
which the accused person did stabbed the deceased. HELD:
act but for the provocation; orIt was held that the accused
was armed and intended to
cause harm with the dagger in
ILLUSTRATION a fight he anticipated with the
A, who has long been seeking deceased
an occasion to fight in a Appianing v republic-. Commented [sq56]: The appellant was charged with and
convicted for the murder of a police corporal who had tried
deadly manner with B, kills B. to arrest him for assaulting a woman. The prosecution
alleged that while the deceased was trying to arrest the
here, if the jury think that A appellant a struggle ensued during which the appellant
fatally wounded the deceased on the head with a hammer.
engineered a situation of The appellant’s defence was that after a quarrel with the
said woman he took some alcoholic drink and retired to rest
being in B’s way for the in his room when the deceased and another man entered
the room and ordered him to accompany them to the police
purpose of taking an station. When he refused to go with them on their failure to
produce their warrant of arrest or identity cards, a struggle
ensued during which one of the two men, in an attempt to
opportunity which might hit the appellant with an iron instrument, accidentally hit
the deceased’s head which resulted in his death. HELD: The
occur to fight with B, the evidence showed that the appellant was the victim of an
unprovoked assault and also that the deceased received the
criminal offence of A is not fatal wound in the course of one continuing struggle. The
defence of provocation could not therefore be excluded by
reduced to manslaughter by reason of lapse of time, unreasonable mode of resentment
or that the appellant was not deprived of the power of self-
reason of the blow which A control as provided by Act 29

received from B.

(c) that, after provocation was Boakye v republic- whilst the

given, and before the accused first appellant was engaged in
did the act which caused the an unlawful fist fight with the

64 | P a g e
 harm, a time elapsed or
circumstances occurred that
an ordinary person might
have recovered self-control;
or
65 | P a g e
deceased the second
appellant felled the deceased
with a stone he threw at him
and that the first appellant
continued punching the
deceased even when the
deceased was on the ground.
The deceased subsequently
died from injuries he sustained
in the fight. HELD: at the time
the appellant struck the
deceased with the knife, the
appellant was not in any
mortal danger of losing his life.
Furthermore, he had had
enough reasonable time to
cool down. His action could
therefore not constitute self-
defence under section 31 nor
provocation under section 52
of the Criminal Code, 1960
(Act 29), respectively
R v duffy- after fight with
husband, accused went away
to change clothes and later hit
the husband with a hatchet
and a hammer. HELD:
 provocation will not lie
because time has elapsed.
in Konkomba, it was held that
the killing could not be
reduced to manslaughter on
the ground of provocation
because such a time had
elapsed between the assault
Commented [sq57]: Tordo Konkomba and Kwabina
Basare went out hunting. Basare returned to the village to
report that he had shot Tordo Konkomba in the bush during
the hunt. The next day, Tordo’s father and uncle and some
other people pounced on Basare and beat him to death.
They claimed that by seeing their son and nephew wailing in
agony, they were provoked to kill Basare. HELD: the killing
could not be reduced to manslaughter on the ground of
provocation because such a time had elapsed between the
assault complained of and the their killing of the alleged
provocateur that an ordinary person would have recovered
his self-control..

complained of and the their

(d) that the accused person
acted in a manner, in respect
of the instrument or means
used or of the cruel or other
manner in which it was used,
in which an ordinary person
would not, under the
circumstances, have been
likely to act.
ILLUSTRATION
killing of the alleged
provocateur that an ordinary
person would have recovered
his self-control.
R v lesbini- the accused went
to a shooting gallery to
practice. The deceased made a
jocular quip (racist comment)
at him and so he ran after her
and shot her. It was submitted
that his mental balance was
impaired and therefore the
effect of the taunting words
on him should be considered
as sufficient provocation.
Held: the principles applicable
to the defence of provocation

66 | P a g e
 A receives a slight blow from
a weaker man, B, and he
beats and kicks B to death. A’s
criminal offence is not
reduced to manslaughter
were wide enough and ought
not to be extended.
Sabbah v the republic-
deceased went to accused
farm for palmwine and
accused decapitated him
Donkor v republic- accused
was caught by deceased
stealing and claims to have
been provocated by her insults
and her hitting him with palm
branch
R v bedder- an impotent youth
visited a prostitute in a bid to
establish his virility. He failed
Commented [sq58]: the deceased, Akua Nsiah, found the
appellant on her farm apparently stealing her palm nuts.
She accosted him and according to the appellant, she rained
insults on him and hit him twice with a palm branch the size
of his wrist, whereupon he lost his self-control and killed.
In this statement to the police, the appellant indicated that
he did not initially intend to kill her. But sensing danger of
her reporting him, he decided to kill her. In his words, “As I
hit her with my cutlass, she was wounded. She then raised
an outcry. As she continued shouting, I decided to kill her if
not she would go and report me. I slashed her so many
times with my cutlass and eventually she died.” HELD: the
defence of provocation was not available to the appellant
because his actions, from his own words, indicated that he
had formed an intention to kill. That if truly the appellant
had not formed an intention to kill, he would have stayed
his stand and stopped any further attacks the moment he
realized that the deceased had been wounded by his first
cutlass blow.

in the proof, and the prostitute

taunted him. Whereupon he
killed. His appeal against
conviction was dismissed that
it did not constitute
provocation.
Larti v republic- accused
inflicted several cutlass
wounds on deceased after a
fight and being cooled down

67 | P a g e

(2) For the purposes of
subsection (1), “an ordinary
person” means an ordinary
person of the community to
which the accused belongs.
(3) Where a person, in the Boakye v republic-
course of a fight, uses a deadly
or dangerous means against
an adversary who has not used
or commenced to use a deadly
or dangerous means against
that person, the accused
person shall be presumed to
have used the means from a
previous intention to cause
death, although, before the
actual use of the means, the
accused person may have
received a blow or hurt in the
68 | P a g e
by mother. HELD: The court
held that the defence of
provocation would be denied
him because of the manner in
which the killing was done.
Practice note 1962 2 Glr 181
S.C.: In directing the jury on
the issue of provocation it is
necessary to consider the
community to which the
accused belongs.
Commented [sq59]: whilst the first appellant was
engaged in an unlawful fist fight with the deceased the
second appellant felled the deceased with a stone he threw
at him and that the first appellant continued punching the
deceased even when the deceased was on the ground. The
deceased subsequently died from injuries he sustained in
the fight. HELD: at the time the appellant struck the
deceased with the knife, the appellant was not in any
mortal danger of losing his life. Furthermore, he had had
enough reasonable time to cool down. His action could
therefore not constitute self-defence under section 31 nor
provocation under section 52 of the Criminal Code, 1960
(Act 29), respectively
 fight that might amount to
extreme provocation.
(4) Subsection (3) applies if
it appears that the accused
person intended or prepared
to use those means before
the accused person had
received a blow or hurt in
the fight that might be a
sufficient provocation to use
means of that kind
SECTION 55-MISTAKE AS TO MATTER OF PROVOCATION
A lawful blow, arrest or any
other violence may be a
69 | P a g e
Boateng v republic- after
refusal by police to release
family members after their
arrest after a fight between
the two factions over a piece
of land, accused met deceased
and a fight issued. Accused
pulled out a dagger and
stabbed the deceased. HELD:
It was held that the accused
was armed and intended to
cause harm with the dagger in
a fight he anticipated with the
deceased
 provocation, despite its
lawfulness, if the accused
person neither believed, nor,
at the time of the act, had
reasonable means of knowing
or had reasonable ground for
supposing that it was lawful.
SECTION 56-MISTAKE AS TO PERSON GIVING PROVOCATION
Where a sufficient
provocation is given to the
accused person by one person,
and the accused person kills
another person under the
belief, on reasonable grounds,
that the provocation was given
by that other person, the
provocation is admissible for
reducing the criminal offence
to manslaughter in the same
manner as if it had been given
by the person killed; but, it is
not a provocation to kill a
different person.
70 | P a g e
R v EKPO: In a tribal attack the
accused was wounded by an
arrow. He turned not knowing
who shot at him and killed the
deceased. HELD: The court
held that since the whole
group offered the provocation
it would support the defense
of the appellant and no doubt
he committed the act while in
the throes of passion.
KALIBU v THE REPUBLIC: the
appellant were in a fight with
an opposing clan. Several
members of both groups were
injured and one died. The
appellant was convicted for his
 murder. HELD: The court held
that the defence of
provocation would avail to
them since the deceased was
one of those offering the
provocation.

INSANITY
This is governed by Section 27 of Act 29. There are two forms of
this defence; insanity simplicitor and insane delusions.
Insanity (section 27(a))
Special verdict in respect of an insane person
Where a person is accused of a criminal offence, the special
verdict provided by the Criminal and other Offences (Procedure)
Act, 1960 (Act 30) in the case of insanity is only applicable
(a) if that person was prevented, by reason of idiocy,
imbecility, or a mental derangement or\ disease affecting
the mind, from knowing the nature or consequences of the
act in respect of which that person is accused
In this instance the accused is by reason of insanity not compos
mentis unable to comprehend the nature or the consequence of
the act constituting the crime. This is kmown as the M’naghten
rule.

71 | P a g e
In all cases a man is presumed to be sane and to possess a
sufficient degree of reason to be responsible for his crimes until
the contrary is proved to their satisfaction and that to
established the defence of insanity it must be proved that at the
time of the crime the accused was laboring from a defect of
reason from a disease of the mind and as such did not know the
quality of the act and its nature or he did know the act but did
not know it was wrong. Regina v Windle
INSANE DELUSIONS (Section 27(b))
The section provides that if that person did the act in respect of
which that person is accused under the influence of an insane
delusion of a nature that renders that person, in the opinion of
the jury or of the Court, an unfit subject for punishment in
respect of that act.
Insane delusion has been explained to cover situations the
accused lives in a world of his own which cannot be shaken by
any fact, as such if he is punished he would be unable to
comprehend why he is being punished.
When an insane delusions is pleaded the state of mind at the
time of the incident is what is material but not what is
afterwards. R v MOSHIE
In relation to insane delusion, the courts are not concerned with
the irresistibility to act but rather if the accused was unconscious
of acting. That is there is no requirement that the mental
delusions should lead to an incapacity to control conduct. It is
sufficient if the accused acted while in a state of mind induced
72 | P a g e
Commented [sq60]: the appellant windle lived with his
wife who was said to have a defect with her mind so as to
compel him to poison her. He informed the police that he
had given her 100 aspirins tablet and that he supposed
that he would be hanged. At trial a doctor gave evidence
to the effect he suffered from insanity known as
communicated insanity folie a deux as a result of living
with the wife. He was convicted. He appeals
held: dismissing the appeal on the ground that he knew
the consequence of the act he did and was clearly not
insane under the law. Goddard C.J said that for the
defence of insanity to prevail the accused must shew that
he was insane so as not to discern the nature of the act or
that it was wrong. Wrong he said connoted criminally
wrong but not morally wrong. For instance in the
Decalogue it is morally wrong to kill, so is it under the law,
how it is wrong morally to commit adultery but not so
under the law i.e. not a criminal offence.
Commented [sq61]: the appellant was convicted for
berserk killing in his town. He at the time of the commission
of the crime was a under the delusion that he was being
taken to Kumasi to be killed and in self defence killed all to
liberate himself. This set of facts was peculiar to him. HELD:
Ollenu j. in giving a special judgment of guilty but insane
held that the test is whether the accused had a delusions
which could not be shaken by facts, and that at the time of
the crime he was in the state of delusion. He found that to
be so in the case of moshie and overturned the judgment
for murder.
by a disease in which a false belief is held that cannot be shaken
by facts. ABUGRI FRAFRA @ PINI FRAFRA v THE REPUBLIC
AKPAWEY v. THE STATE
FACTS: The appellant killed two children under the delusion that
they and their father had through juju means tried killing him. In
his statement to the police he admitted killing the children,
however in a subsequent statement he denied killing the
Commented [sq62]: the accused was convicted for the
murder of his landlord’s brother. He was under a delusion
that the deceased was persecuting him. As such he attacked
the deceased with a cutlass killing him. At trial the judge
directed the jury that the delusions must be such to render
the accused unable to control his actions. HELD: On appeal
the Amissah J.A held that the jury was misdirected that
under our law the direction must be such that the accused
committed the act at the time of the delusions under a
mistaken belief induced by a disease which cannot be
shaken by facts.

children. At trial he persisted that the children were alive.

HELD: In allowing the appeal and entering a special verdict ollenu
J. held that the test should be to the effect that the delusion is
of such a nature that the accused is unfit to be punished. He held
that the accused was unfit to be punished from the facts.
Commented [sq63]: The important fact is that the
Manu v. THE REP accused was at the time of the incident laboring under a
FACTS: the accused killed two persons whom he claimed to be delusion and not what it becomes subsequently

animals. The trial judge did not properly direct the jury as to the
law on insane delusions.
Insane delusions as a state of mind can be either temporary or
permanent. Appellant’s remembrance of events prior to the
death of the deceased does not necessarily negative the defence
of the insane delusions. The appellant at the time of killing was
experiencing an insane delusion thus; a special verdict would be
given.

73 | P a g e
AUTOMATISM
The psychiatric condition of automatism occurs when a person
acts without his or her cognitive faculties, in much the same
manner as an automaton. Here the person does the act
unconscious of the fact that he did the act. E.g. kills another
whiles sleep walking. The absence of the cognition during the act
has been argued to have negate the voluntary requirement of
the actus reus. Others argue that the absence of the cognitive
factor implies the mind did not accompany the act thus negating
mens rea.
Automatism is not expressely stated in the code but the court
Commented [sq64]: the accused killed the wife in an
has held in Dogo Dagarti v The Republic that the defence of epileptic fit. He appealed against his conviction on the
grounds of automatism. The court held that the defence of
automatism holds and it would be treated as a disease of the automatism is applicable in this country but the plea of
defence of automatism which is not supported by evidence
mind. would not avail to the appellants. A claim by the accused
that he lost his consciousness because he suffered from
epilepsy refers to plea of insanity due to a disease of the
Case: Bratty v A-G for Northern Ireland. mind.

Facts: the accused strangled a girl whiles driving in a car. He

claimed that he did not know what he had done because he had
no recollection of anything except that he had experienced a
temporary blackout, during which he must have strangled the
girl. He was convicted for murder.
Held: the defence of automatism would not avail to an accused
if he alleges the act to be due to a disease which affects the mind
therefore rendering him insane and if the said insanity plea is
rejected by the courts. Lord denning held that if a man is
unconscious of his acts due to his inability to control is actions
the defence of automatism would not avail. If he is unconscious
due to drunkenness the defence would not avail. the appeal was

74 | P a g e
dismissed since the plea was unconsciousness due to a disease
of the mind.

Case: Reg v. Burgess

Facts: the appellant attacked a friend with whom he was
spending an evening, while the friend was asleep. he hit her on
the head with a bottle then a video recorder and then attempted
to strangle her. He claimed that he was sleep walking at the time
and pleaded automatism. held: That such cases of automatism
came within the rules of M’naghten on insanity because any
mental disorder which has manifested itself in violence and is
prone to recur is a disease of the mind. The appellant here
suffered from a disease of the mind due to internal factors such
as depression.

Other cases on insanity

Collins alias Derby v. The Republic

Facts: the appellant was convicted of murder although there was
evidence of insanity. Held: that the failure to consider
appellant’s history of schizophrenia prejudiced him unduly. The
requisite state of mind is at the time of the offence was
committed and not at a subsequent date. Special verdict
substituted.

Williams v. The republic

Facts: the accused set fire to her husband who died as a result of
injuries sustained therefrom. She pleaded insanity.

75 | P a g e
Held: the state of mind, apart from the evidence of history is
often discovered by contemporaneous acts and behavior of the
accused, viz a viz, conduct immediately before, at the time or
immediately thereafter. The evidence did not show sufficient
state of mental derangement for the defence to succeed.

Helegah v the State plea of amnesia

Facts; the appellant killed the wife after he was acquainted with
the information that she was about leaving him for another man.
A day after the killing he gave evidence recounting the incident.
At trial he pleaded insanity because he did not recall the event.
Held; that the plea of amnesia does not constitute insanity.
Insanity can be shown to exist if there is a hereditary of any such
in the family. Marital jealousy has never been classified as a
symptom of insanity.

INTOXICATION
A person who imbibes a mind altering substance and whose
mental state is thereby impaired is said to be intoxicated. This
could be as a result if intake of alcohol or any drug of the effect
prescribed by a doctor. Generally, speaking intoxication is no
defence for a criminal charge. This is provided in section 28(1). R
v OWAREY
Every man is presumed sober until he proves otherwise. There
are two kinds of intoxication, voluntarily intoxication and
involuntary intoxication. Moreover, the accused must prove
Commented [sq65]: Except as provided in this section,
intoxication is not a defence to a criminal charge
Commented [sq66]: The accused was convicted of
murder. he contended that at the time of conviction the
judge failed in his summing up to considered the fact that
he was intoxicated. the court held that although there was
evidence of heavy drinking prior to the commission of the
offence, it was not such as to prevent the accused from
forming an intention to kill. Appeal dismissed.

76 | P a g e
that by virtue of the intoxication, he was unable to tell the nature
and consequence of his actions.
Voluntary Intoxication
This is governed by Section 28(2b) of Act 29.
Under this kind of intoxication the accused must show that he
was extremely intoxicated so as to be unable to comprehend the
nature and consequences of his action. In this case a verdict of
insanity is entered. KETSIAWAH v THE STATE, ATTORNEY
GENERAL FOR NORTHERN IRELAND v GALLAGHER, CHUTWA v
R intoxication must be such as to affect the ability of the
INVOLUNTARY INTOXICATION
This is governed by section 28(2)(a) of Act 29
R v. Kingston
Facts: the accused person had been invited to the flat of another.
He was given refreshment laced with a drug and was then filmed
having homosexual intercourse with a minor, for the purposes of
blackmail. He prosecuted for the offence and although he
pleaded intoxication by the act of a third person he was
convicted at trial due to the failure of the judge to properly direct
the jury. He appealed.
Held; allowing the appeal. That there was sufficient evidence of
involuntary intoxication for the jury to have been directed
thereon and that a failure to do so this had rendered the
conviction unsafe such that it could not be allowed to stand
Reg v. Allen
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Commented [sq67]: Intoxication is a defence to a
criminal charge if by reason of the intoxication the person
charged, at the time of the act complained of, did not know
that the act was wrong or did not know what that person
was doing and
(b) the person charged was, by reason of intoxication,
insane, temporarily or otherwise, at the time of the act.
Commented [sq68]: the appellant was convicted of the
murder of his wife whom he had invited earlier to the farm.
He pleaded intoxication because earlier that day; he had
drunk a bottle of akpeteshie. The defence failed and he
appealed. Held: dismissing the appeal that the state of
accused to appreciate the nature and quality of his act. Bare
evidence of the intoxication falls short of the standard
required to sustain the defence.
Commented [sq69]: The accused person knew that he
had psychopathic tendencies which were aggravated by the
intake of alcohol. In order to kill the wife he drunk a large
bottle of whisky and then killed her. Held: that a person
who evinces an intention to kill another and was temporary
deranged of his reason at the time of the killing was the
result of his own voluntary act in taking the drink is guilty
and does not fall within the M’NAGHTEN RULE
Commented [sq70]: conviction for murder upheld in
spite of evidence of intoxication. Held: the person must be
so drunk as to be incapable of forming the intent essential
to the crime. To obtain the benefit of the defence, it is not
enough to prove a mere state of intoxication.
Commented [sq71]: Intoxication is a defence to a
criminal charge if by reason of the intoxication the person
charged, at the time of the act complained of, did not know
that the act was wrong or did not know what that person
was doing and
(a)the state of intoxication was caused without the
consent of that person by the malicious or negligent act
of another person
Facts: The defendant was charged with buggery and indecent
assault on a woman. He sought to raise a defence of involuntary
drunkenness. He had consumed several pints of beer and was
offered further alcohol of a type which he had not taken before
but was described to him as homemade wine
Held: the mere ignorance of the strength of the drink that a
person voluntarily takes does not make his consequent
intoxication involuntary.

The effects of the plea of intoxication in 28(2) (a) and(b)are

found in:
Section 28(3)
(3) Where the defence under subsection (2) is established, then
(a) in a case falling under paragraph (a), the accused person shall
be discharged, and
(b) in a case falling under paragraph (b), the special verdict
provided for by the Criminal and Other Offences (Procedure) Act,
1960 (Act 30) in the case of insanity shall apply.

Section 28(4)
Intoxication shall be taken into account for the purpose of
determining whether the person charged had formed an
intention, specific or otherwise, in the absence of which the
person charged would not be guilty of the criminal offence
Look at the Gallagher case.
R v. Hardie
Facts; the appellant was in a relationship with a woman. Upon a
breakdown of the relationship he took some pills of valium a
sedative. Thereafter, he set on fire the bedroom in which the
78 | P a g e
victim was with the child. At trial he pleaded intoxication, the
trial rejected the plea on the grounds that it was irrelevant in
determining whether the requisite mens rea had been formed.
He appeals
Held: the direction was wrong because the effect of valium as an
intoxicant was relevant in determining whether the appellant
had formed the necessary mens rea for the offence. The
appellant was acquitted as he was had no knowledge of the
nature and consequence of his act due to intoxication.

QUEEN v. O’ Connor
Facts: the accused stabbed a police officer stealing from the
officers car. He was charged with murder and acquitted upon the
successful plea of intoxication. the crown appealed the court
held that by stabbing the man as a result of intoxication and it
was not his voluntary act.

DPP v. BEARD
FACTS: The respondent had killed a 13nyear old girl whom he
was raping by placing his hand on the mouth and his thumb
against her throat to stop her from calling for help. She died of
suffocation. His plea of intoxication was not allowed by jury. He
was sentenced to death. The court of criminal appeals quashed
the conviction, substituted a verdict of manslaughter and
sentenced him to 22 years. The crown appealed.
Held: Lord Birkenhead: where a specific intent is an essential
element in the offence, evidence of a state of drunkenness
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rendering the accused incapable of forming such intent should
be taken into consideration in order to determine whether he
had in fact formed the intent necessary to constitute the
particular crime. If he was so drunk that was incapable of
forming the intent required, he could not be convicted of a crime
which was committed only if the intent was proved. The
drunkenness can negative the commission of a crime.

INCHOATE OFFENCES
Inchoate offences are offences which basically are incomplete
offences. It is twofold:
a. a person sets out to commit an offence but is unable to
complete it. Also, it describes offences which precede the
commission of the substantive offence.
b. a person does the act constituting the offence but the results
are not achieved. Eg. A person who sets out to commit suicide or
80 | P a g e
to kill a person but that person survives the gun shot or lethal
strike from the knife.
There are 4 types of inchoate offences known under our criminal
jurisprudence, namely:
 conspiracy
 abetment
 attempt
 preparation
Though, we also have crimes that may be termed as double
inchoate offences – e.g.
• conspiracy to abet
• abetment of a conspiracy
• abetment of attempt

CONSPIRACY
Conspiracy is in four kinds
(a) An agreement between two to commit a crime
(b) An agreement to abet a crime
(c) Two or more acting together to commit a crime
(d) Two or more acting to abet the commission of a crime.

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The main determinant of conspiracy is the element of an
agreement to commit a crime. Mere harboring of criminal
intentions or communication of such intentions will not suffice.
However, if you communicate your criminal intentions to
another – and you suggest to the other that you desire to carry
your intention to fruition, and that other agrees to go along with
your designs to commit the crime, the agreement itself is
criminal even if neither of you has lifted a finger or never lifts a
finger in furtherance of the agreement
Commented [sq72]: Section 23(1) provides that:
Conspiracy is treated under sections 23 and 24 of Act 29. from Where two or more persons agree to act together with a
common purpose for or in committing or abetting a
this, the main elements of conspiracy are: criminal offence, whether with or without previous
concert or deliberation, each of them commits a
(a) Plurality of minds i.e. two or more persons conspiracy to commit or abet the criminal offence

(b) Agreeing to act together with a common purpose.

(c) Acting together for a common unlawful purpose.

i. Plurality of Minds: From the wording of section 23(1), there

must be at least two conspirators for the charge to suffice.
That is, the offence of conspiracy contemplates the
involvement of at least two persons since a person cannot
agree with himself. A man can even conspire with his wife.

A person can only be held for conspiracy if he conspires with

another person – that is to say, the other party to the
agreement must be a person. Thus, a charge of conspiracy will
not hold if the other party to the supposed agreement is

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alleged to be a non-person, say a spirit. BLAY v THE REPUBLIC.
Person here do not denote only natural persons.
Since one person cannot be guilty of conspiracy, on a charge
of conspiracy, if all the accused are acquitted except one, that
one must also acquitted, unless it is proved that he conspired
with some other person not named in the charge or at large.
REPUBLIC v BOSSMAN.
In contrast where the co-conspirators are tried separately the
acquittal of one does not necessarily imply the other is
innocent of the conspiracy. This is because the circumstances
pertaining to each trial may differ. DOE v THE REPUBLIC
COULD A COMPANY OR CORPORATE PERSON BE A PART OF
A CONSPIRACY?
Reference to a company implies the mind directing the affairs
of the company.
An accused person can be convicted for conspiracy if his co-
conspirator is acquitted if it is shown that he had conspired
with persons unknown. r v. Anthony
The mens rea for conspiracy is an intention to agree. That is
an intentional conduct evidencing an agreement. The actus
reus is the actually agreement. To determine if there is
conspiracy the courts looks not only at the agreement but also
the acts of the accused. That is, it is difficult to determine
conspiracy by the looking back at agreement but the
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Commented [sq73]: The appellant was convicted for
conspiring with a spirit for defrauding the complainant by
representing to him that he could double his money. The
appellant then took the complainant about midnight to mile
12 on the Accra-Winneba road and the Teshie beach on
three occasions. On two of these occasions, the appellant
spoke and a voice replied to the hearing of the accused.
The complainant was finally given a pillow case containing
some items with instructions not to open it till three days
had elapsed. When he opened the pillow case, it contained
stones and bundles of newspapers cut into the size of
currency notes. The appellant was found liable for
conspiracy to defraud. On appeal HELD: Archer j. in allowing
the appeal on conspiracy held as follows: Conspiracy
involves agreement between two or more human beings
and not between one human being and an unknown
doubtful voice at midnight. Moreover, it was not proven by
the ag that the voice at the beach was that of a human
being.
Commented [sq74]: the accused was charged with
another for conspiring to extort money from applicants of
import licences. His co-conspirator were acquitted and
cleared of the charges. The issue was whether the accused
was still liable to be convicted for the conspiracy. HELD: On
a conspiracy charge, if all but one of the parties were
acquitted that one must also be acquitted unless it was
charged and proved that he conspired with some other
persons not named in the charge.
Commented [sq75]: The appellant was charged with
conspiracy with 7 other workers of the BoG. Their charge
sheets was consolidated which was against the practice of
the courts. Moreover, the person who was charged with the
appellant pleaded not guilty to the charge and was
acquitted. The appellant appeals contending that since the
other accused was acquitted then the charge of conspiracy
against him could not hold Held: the appeal court dismissed
his appeal. The court held that the consolidating of the
charge sheets was bad in law as such an irregularity. Also,
despite the acquittal of the second accused, the conviction
for conspiracy was valid since the seven other workers
worked in concert to withdraw the monies of the bank’s
client
Commented [sq76]: the appellant and others stole from
a company tractor spares ltd an amount of money on the
highway. They were charged with conspiracy to commit a
crime of stealing. The other were acquitted of the charge of
conspiracy but the ap pellant was convicted. He appealed
against his conviction.
Held: despite the acquittal of the others his conviction was
good at law since he conspired with persons unknown
 subsequent acts of the accused are relevant to the
establishment of the charge.
ii. Agreement: For there to be a conspiracy there must be an
agreement between two or more. The merely listening to a
person’s criminal intent without assenting to it does not make
one a conspirator. The person must agree, which is an
intentional conduct. This could be inferred from the settings
as to where the meeting was held or the subsequent acts of
the accused.
Chain conspiracy is when there are two or more people
involved in the same conspiracy acting to a common purpose.
They are all liable for the acts of each other in furtherance of
this common purpose. STATE v OTCHERE. The general rule is
that in a chain conspiracy the participants are liable for the
whole and not just the part they played
Wheel conspiracy, there is a common conspirator for two or
more persons. That conspirator could be described as the
center or fulcrum of the conspiracy
COMMISSIONER OF POLICE v AFARI
The appellants were charged and convicted for conspiracy to
defraud by false pretense. On appeal at the SC. The counsel
for the appellant argued that there was no evidence of prior
agreement but the evidence of the conspiracy was that of the
substantive crime. Moreover, since the evidence led was that
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Commented [sq77]: This case was the trial of five
accused persons who were alleged, as members of the
United Party in exile, among whom were the first two
accused and Obetsebi-Lamptey, to have held meetings in
1961 and 62 in Lomé in the Republic of Togo where it was
agreed to overthrow the Government of Ghana by unlawful
means and also that the last three accused persons
subsequently joined in the said conspiracy. The prosecution
maintained that in furtherance of the said agreement
Obetsebi Lamptey came to Accra in May 1962, and that the
attempted assassination of the President at Kulungugu on
the 1st August, 1962, and the series of bomb outrages
perpetrated in various parts of Accra thereafter were in
furtherance of the objects of the agreement. HELD: It was
held that a person who joins or participates in the execution
of a conspiracy which had been previously planned would
be equally as guilty as the planners even though he did not
take part in the formulation of the plan or did not know
when or who originated the conspiracy. So that if the
prosecution proved that the third, fourth and fifth accused
persons joined Obetsebi Lamptey in Accra and participated
in the execution of the plans agreed to at Lomé, they would
be just as guilty as the original planners of the conspiracy
 of the substantive crime it was bad in law to convict them for
conspiracy.
Held: the Ghanaian law of conspiracy is wider than the English
law of conspiracy. Thus, it covers also acting with a common
purpose in a concerted manner. From the evidence of
subsequent acts of the appellant it could be deduced that
there was a previous agreement to defraud the complainant
of his money. Hence, the conviction for conspiracy was good
in law.
AZAMETSI v THE REPUBLIC
The appellants were convicted for the conspiring to murder
and the murder of another fisherman in furtherance of their
annual ritual for a bumper harvest. The first appellant appeals
against the conspiracy in that he did not agree to the murder,
he merely stood by and witnessed it in his house.
Held: The crime of conspiracy consisted in an agreement or
acting together by two or more persons with a common
purpose for or in committing or abetting a crime whether with
or without any previous concert or deliberation. It was not
always easy to prove agreement by evidence, but it could be
inferred from the conduct of and statements made by the
accused persons. In the present case if the evidence of the first
appellant’s wife that the first appellant was present during the
killing of the deceased and later procured other persons to
dump the dead body in the sea was accepted then the
presence of the first appellant in the bathroom where the

85 | P a g e
 killing took place, could not be accidental but was in
furtherance of the common purpose.
KAMBEY v THE REPUBLIC
The appellants set out to harvest dawadawa fruits from a
farm. At the farm their right to harvest fruits from the farm
was challenged by with an arrow. They were convicted for
murder and conspiring to kill.
Held: there was no evidence to show that it was those people
who caused the deaths. Nor was there evidence that they had
set out to harvest the fruits armed with arrows and bows.
Therefore they could not be liable for having executed a
common enterprise. Appeal allowed.
Comment: here the appellant did not set out to act with the
common purpose of killing. They set out to harvest fruits.
Moreover, the prosecution failed to establish that either of
the accused carried the bow and the arrow or shot the
deceased persons.
STATE v BOAHENE.
The accused were charged with conspiracy contrary to section
23(1) of act 29 to acquire a printer to print Ghanaian currency.
A nolle prosequi was entered by the state. The ag initiated
fresh proceedings in the court.
Held: the test was whether the parties had a common purpose
and not whether they were acquainted with each other. Per
sowah” Conspiracy consists not merely in the intention of two
or more persons, but also in the agreement of two or more to
do an unlawful act or to do a lawful act by an unlawful means.
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 To constitute an indictable conspiracy there must be an
agreement between the conspirators to do some common
thing. Whether they had met each other or not, does not
matter in the slightest degree so long as they are working for
the same common object. They need not know whether a
conspiracy was already in existence. The test is whether or not
there was a community of design or a common purpose. In
order to find out whether or not there is a common design the
court must not only look at what the accused persons say in
court or elsewhere, but also at what the overt acts are, that is
to say, any act of conspiracy, conferring or consulting with,
advising, persuading, counselling, commanding or inciting
words can be an overt act.”
SCOPE OF LIABILITY
The general rule is that the acts of a co-conspirator in
furtherance of the conspiracy are binding on the others. Thus, all
persons engaged in a conspiracy are deemed to have approved
Commented [sq78]: Where two or more persons are
all actions thereunder. This is the effect of sec 24(1) read convicted of conspiracy for the commission or abetment of
a
together with sec 23(1), especially the phrase “whether without criminal offence, each of them shall, where the criminal
offence is committed, be punished for that
a previous concert or deliberation”. criminal offence, or shall, where the criminal offence is not
committed, be punished as if each had abetted
that criminal offence
For a conspirator to be held liable for the acts of a co-
conspirator, the acts of the co-conspirator must be in
furtherance of the conspiracy. It is not every act or declaration
by a conspirator that will bind his co-conspirators. Therefore,
where one of the participants takes a different course and goes
beyond what has agreed upon or what was in the contemplation
87 | P a g e
of the parties, he alone would be liable for those acts – the other
participants will not be liable for his unauthorized acts or for acts
that go beyond the scope the adventure. TEYE @ BARDJO v THE
REPUBLIC, ALLAN WILLIAM HODGSON V. THE REP.
DEFENCES TO A CHARGE OF CONSPIRACY
There is no defence to a charge of conspiracy.
Therefore, a conspirator cannot countermand – countermand is
to revoke, cancel or rescind a decision – the law holds the view
that countermand only avails an accused with respect to
offences to be committed in the future. However, conspiracy is
an offence that is committed the moment two or more people
agree to act together or act together to commit or abet a crime,
so even if you countermand, it is too late because the agreement
has been reached before you countermanded – therefore, your
liability was well grounded before you countermanded – thus,
your countermand has no effect in law – you are still liable. Thus,
though you may recant by changing your mind and abandoning
the acts necessary in carrying out the proposed criminal venture,
yet you cannot undo the act of your previous agreement, so you
are still liable for the conspiracy. BOAHENE v THE REPUBLIC.
PUNISHMENT FOR CONSPIRACY
Conspiracy does not merge in the actual or substantive offence,
so a conspirator is liable to be punished for the substantive
offense where the offence is actually committed – and where the
substantive offence is not committed, the conspirator is liable to
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Commented [sq79]: The appellants were charged with
conspiracy to steal and to murder. At trial it was determined
that there existed a conspiracy to steal from the grandma of
the first appellant, however the killing of the lady was by
the third appellant and beyond the scope of the agreement.
They were convicted for murder. They appeal from the
conviction. Held: allowing the appeal of the first and second
defendant. The ca held that the agreed to embark on the
crime of stealing however, they did not in any contemplate
the killing of the woman as the means of executing their
plans as such the killing of the woman was the act of the
third appellant distinct from the planned felony.
Commented [sq80]: The accused was charged with other
for conspiracy to possess narcotic contrary to section 56 of
the narcotics drug act. He appeals from his conviction on
the grounds denial and that there was inadequate evidence
to support his conviction. Held: the court held that the fact
that he accepted to construct the compartment for the
concealment of the drugs in was part of the conspiracy
despite not being part at it conception or not knowing when
it was formulated. As such he was liable for the acts of co-
conspirators and thus, was in possession of narcotic
contrary to the act.
Commented [sq81]: The appellant were convicted for
conspiring to print fake currencies of Ghana and printing of
fake currencies contrary to sections 23 and 16 of act 29
respectively. The second appellant pleaded the defence of
countermand. Held: The defence of countermand only
avails with respect to offences to be committed in the
future. Conspiracy was an offence which is committed the
moment two or more people agreed together or acted
together to commit a crime. One of the conspirators may
recant but he could not undo or countermand the act of his
previous agreement. Further, a plea of countermand
implied admission of the original complicity in an act and a
subsequent change of heart.
be punished as if he abetted the commission of the offence –
Section 24(1).
JURISDICTION
Ordinarily, jurisdiction in criminal matters is territorial – i.e. a
court may only try an offence committed within the jurisdiction.
However, where conspiracy is alleged, our law vests jurisdiction
in our courts to try a conspirator where the person is within the
jurisdiction and he agrees with another person who is outside
the jurisdiction for the commission of or abetment of a crime in
Commented [sq82]: A person within the jurisdiction of
the jurisdiction or outside the jurisdiction. Section 23(2). the Courts can be convicted of conspiracy by agreeing with
another person who is beyond the jurisdiction, for the
MENSA-BONSU. CONSPIRACY IN TWO COMMON LAW commission of abetment of a criminal offence to be
committed by them or either of them, or by any other
JURISDICTIONS- A COMPARATIVE ANALYSIS. Conspiracy has person, within or beyond the jurisdiction.

been defined as the agreement between two or more to do an

unlawful act or a lawful act in an unlawful manner. The essence
of the offence of conspiracy is in the unlawful agreement and not
whether or not the object of the agreement was lawful. The
offence essentially is the agreement. It is irrelevant that the
parties are unable to commit the offence or fail in its execution
or abandon it. Agreement has been said to exclude a man and
wife, a man and a company which he is the sole controller, a
person whose conspirator is a minor or has been acquitted of
the charge. Hence, mere spectators are not conspirators. There
must be a positive act for participation to be established Also the
conspirator need not necessary know each other. What is
essential is that they know that they are others involved to
complete their criminal intent which is their common design.
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The test therefore is, “is it true that to say that the acts of the
accused were done in pursuance of a criminal purpose held in
common between them?”
The offence of conspiracy is that of intention and a positive act.
The mens rea being the intention to agree and the positive act
the promise made against another in furtherance of the criminal
offence i.e. actus contra actum. A person need not be in the plot
from the beginning to be a conspirator. A person becomes a
conspirator the moment he joins the plot. A person joins a
conspiracy at his own peril. Essence of the offence of conspiracy
is to discourage the persons from committing the offence and to
protect the interest of society since the combination in a crime
makes more likely the commission of crimes unrelated to the
original purpose for which it was formed. Conspiracy in the two
jurisdictions In Ghana law there are two ways liability arise;
agreeing to commit the substantive offence or agreeing to
commit an inchoate crime. Two limbs of liability; the agreement
to act or acting together with a common purpose. Hence in
Ghana, as soon as the words of agreement is spoken the offence
is committed unlike the us which requires for an overt act. Here,
the overt act merely substantiates the offence. The SC held in
cop v. afari & addo “ it is rare in conspiracy cases for there to be
direct evidence of the agreement which is the gist of the crime,
this usually has to be proved by the evidence of subsequent acts
done in concert and so indicating a previous agreement”.
Elements of the offence. a. Agreement:

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A man cannot conspire on his own thus for there to be an
agreement there must first be two minds. Hence in blay it was
held that the agreement must be between two human beings.
Hence, the courts refused to hold that there was a conspiracy
when it was shown that the accused acted in concert with an
alleged spirit. However, it must be noted that what the law
requires is person be it natural or artificial. The issue of husband
and wife as one mind. In the us case of dege, the us SC held that
a husband and wife could not be treated as one person. Why the
common law principle of unified personality of a man and wife is
not applicable in Ghana. In Ghana a married woman by culture
maintains her personality separate from the husband. Also,
there exists the polygynous marriage system. This system arise
question to the principle equation that 1+1=1. The problem of
plurality of minds in the business settings. In r v. mcdonnell, it
was held that there could not be plurality of minds’ if a man and
the company of which he is the sole directing mind stood to be
accused. This is because the legal fiction of an artificial
personality is impossible to support the notion that there is more
than one mind.
The rule of two minds calls for consistency. That’s the charged
need to be against one if the other conspirators are acquitted.
The caveat is that they must be tried together.
Security agency and their plant. The unilateral approach is that
the accused is still liable for the conspiracy since he had the
culpable mind. CONCERT The persons charged with conspiracy

91 | P a g e
must be proved to have acted with a common design or concert.
As Professor Williams puts it, "[a] conspiracy is not merely a
concurrence of wills, but a concurrence resulting from an
agreement. In due to complicity to be found acting together
amounts to and is not merely evidence of conspiracy. The
problem with the complicity is basically that the mens rea and
actus reus is difficult to locate. If the mens rea is said to be the
intention to act together why should there be liability if there is
no evidence of such intent? If not then is it an offence of strict
liability. One need not try to infer a 'previous agreement' from
acts done in concert. Guilt may be established either by proof of
a previous agreement, or by acts done together even without
any previous concert or deliberation. Overt act At Common Law,
as under Ghana law, the offence of conspiracy is complete once
the agreement has been reached. In contrast, in the us there is
the requirement of an overt act. That is an act constituting the
crime itself but representing the existence of such a conspiracy.
Essence of the us overt act requirement : it is useful to be able
to nip a crime in its bud, the law must be able to distinguish
between those engaged in idle speculation, and those who
intend to implement their plans. Mental element. Conspiracy is
not an offence that can be committed unintentionally. It requires
such a positive act of association that the requisite mens rea is
one of intent.' It has been opined by some scholars that
recklessness should suffice for conspiracy to commit some
offences. It is the intention to agree that is material.
Recklessness as to be to the fact of entering the agreement but
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not as to the intention to agree as one cannot be reckless in
intending to agree. It is for this reason that knowledge of the
existence of the conspiracy must be proved against each
participant. The knowledge could be constructive if the evidence
shows that there was no way a particular person could honestly
believe that there was no conspiracy. Scope of liability In
conspiracy each conspirator is liable for the acts the co-
conspirator thus, the question which arises is whether a person
can be liable for an act kept secret by other members of the
group or those acts which went beyond the scope of agreement.
Conspiracy could be that of a wheel or chain. In the former each
conspiracy can be severed whereas in the later the conspirator
is liable for the whole this is because it is deemed that the
conspirator knew that others are involved to ensure the success
of their plot. Vicarious liability Here it implies that a conspirator
is liable for the acts of co-conspirators. Look at otchere and
bossman. It has been held in Teye alias Bardjo & Ors v. The
Republic6 that a co-conspirator is not liable where any other
party goes beyond what was agreed upon and does an act that
is totally different from what was agreed upon. Objects
impossible of achievement.
There are two schools of thought on this point. One school holds
that if the crime was impossible of commission then the plot
never presented any threat to society. That being so, the need
to protect the society by a resort to the conspiracy weapon never
arose.1 The other school, representing the traditional position,
does not consider the objective factor relevant. The only
93 | P a g e
relevant issue is whether the defendant did intend to combine
for the purposes of committing a crime which, no thanks to him,
was impossible of commission. The prefer in gh is the later school
of thought in that the essence of the offence to prevent the
potting of a crime thus, irrelevant if it is impossible to be
committed. Defences and penalties.
There is no defence to conspiracy. the defence of abandonment
of the plot is no defence as held in otchere. Here is was held that
the accused were liable for the conspiracy the moment the
agreement was conclude. Aslo, in Boahene, it was held that the
defence of contramand does apply to conspiracy as this is mainly
a defence of a contrary command and conspiracy is crime of
agreement. Neither, does the defence of withdrawal avail to the
accused. However, in the us there is a singular defence for
conspiracy and that is the defence of withdrawal. Penalty
In Ghana, the penalty is no more at large. It is the same as for the
commission of the substantive offence.5 This is because,
although the provision distinguishes between the penalty in
situations where the substantive offence has been committed
and in situations where it has not been committed, the
difference in real terms is not one of substance, Section 24(1) of
act 29. The result reached is that a person who is convicted of
conspiracy is liable to suffer the same penalty except for capital
offences. The rule of the merger in common has been changed
thus a person can be charged for conspiracy and the substantive

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of offence as provided in section 24(2) and held in ex parte ofosu
armah.
ATTEMPTS
Attempt in criminal law is distinct from its ordinary meaning. An
attempt here implies
 an act which was not completed before detection or
 one which was completed but failed to achieve its object.
The mens rea for an attempt and a substantive offence are same.
DUA v THE REPUBLIC The difference lies in the actus reus. For
there to be an attempt the acts done must have been such that
it was an irrevocable step towards the commission of the offence
and that it lends itself to no other conclusion. Attempt requires
the doing of an overt act – thus, an omission cannot be an
attempt.
Attempts are dealt with under section 18 of ACT 29. Thus the
main concern here relates to the means or the circumstances of
use or the circumstances affecting the object of the crime or
the absence of the object of the crime.
There is no concise definition of attempt under our laws. At
common law, it is often said that the act constituting attempt
must be proximate to the actus reus of the offence – or that it
must be closely connected to the actual commission of the
offence.
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Commented [sq83]: The accused was charged and
convicted for the attempted murder of his wife. On appeal
he contended that the jury was wrongly directed by the trial
judge. Held: the trial judge erred in his direction. The
appropriate direction was that for a charge of attempted
murder the prosecution must proof an intention to kill and
not necessarily an unlawful inflicted on the jury. Moreover,
the jury could from the evidence presume an intent to kill ,
that is by the nature of the force use the probable and
natural consequence of the accused actions was to kill the
victim yet he failed. As in the instant despite the non-
direction by misdirection there was an intention to kill
inferred from the evidence thus the accused was rightly
convicted.
Commented [sq84]: A person who attempts to commit a
criminal offence shall not be acquitted on the ground that
the criminal offence could not be committed according to
the intent
(a) by reason of the imperfection or other condition of the
means, or
(b) by reason of the circumstances under which they are
used, or
(c) by reason of the circumstances affecting the person
against whom, or the thing in respect of which the criminal
offence is intended to be committed, or
(d) by reason of the absence of that person or thing
HOUGHTON v SMITH: the appellant was arrested and convicted
for attempt to take delivery of stolen goods. The goods at the
time of arrest were no stolen goods since the principle offenders
who stole the goods had been arrested and it was in the lawful
custody of the police. Held: the appellants appeal is dismissed
since the act done was an attempt to commit an offence only to
be interrupted by circumstances in relation to the thing which
the offence was to be committed. Here reference to the change
in circumstance is when the stolen goods were no longer stolen
goods since it was in the custody of the police. “The accused
must go beyond mere preparation
In Ghana, it appears that to amount to an attempt, the act done
must have been such as may be regarded as an irrevocable step
toward the commission of the offence that lends itself to no
other interpretation – that is to say – the point of no return.
IMPOSSIBLE ATTEMPTS
This describes a situation where a person believes he is
committing an offence but unknown to him the act which is to
be the offence is not an offence or crime even when completed.
Eg smuggling a substance under the assumption it’s cocaine
when it is actually talcum powder.
A person may be guilty of attempting to commit an offence even
if the facts are such that the commission of the offence is
impossible – that is what he/she is proposing to do is impossible
not because of insufficiency or inefficiency of means, but

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because it is for some reason physically not possible, whatever
means one adopts.
R v. White section 18(C) and (D) , REG V. SHIVPURI
STATE V. MITCHELL: The defendant believing his victim was
sleeping in a bed in the downstairs room fired into the bed one
bullet hit the pillow and another the dresser close by. In fact the
victim, unknown to the defendant, had gone to bed in the
upstairs room. Since the defendant had been a boarder in the
other’s house and knew that the latter customarily slept in the
downstairs bedroom, the defendant’s expectation that his act
would result in the desired killing was an eminently reasonable
one . Held: he was convicted of attempt. His conduct made out
a perfect case of an attempt.
PUNISHMENT FOR ATTEMPTS
In Ghana, a person convicted of an attempt is liable to be
punished to the same degree as if he committed the substantive
crime. Section 18(2). However, a person under imprisonment for
3 yrs or more who attempts to commit murder is liable to suffer
death. Section 49.
Sometimes an act which amounts to an attempt to commit one
crime is at the same time the actus reus of another crime – for
instance, attempted murder may at the same time be causing
grievous bodily harm – attempted rape may be indecent assault
– attempted robbery may be unlawful entry – attempted arson
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Commented [sq85]: : the appellant drop in his deceased
mother’s drink cyanide. The quantity was small such that it
was unlikely to kill the mother. He was convicted of
attempted murder. Held: the appellate court held that the
conviction was right despite the fact that the amount was
unlikely to kill someone. This is because he intended to end
the life of the murder it is unfortunate that the amount of
poison made it impossible to achieve the aim of his
conduct. Also, the direction by the trial judge that if his
conduct was a step in series of act constituting slow
poisoning then he is guilty of attempted murder was held to
right.
Commented [SDQ86]: the appellant attempted to import
illegal drugs. The substance he imported actually turned to
be an harmless substance. Held: the test of objectively
innocent is not applicable in attempt cases dealing with
impossible attempt but rather of relevance is the intent of
the person or the guilty mind of the person involved. Hence,
if the person conduct though unlikely to commit the
intended offence so long as the requisite mens rea is
present he is liable for the attempted offence. Therefore,
shivpuri is liable for the offence of attempting to import
illegal drugs despite it not being illegal drugs.
Commented [sq87]: A person who attempts to commit a
criminal offence commits a criminal offence, and except as
otherwise provided in this Act, is liable to be convicted and
punished as if the criminal offence has been completed.
Commented [sq88]: A person who, being under sentence
of imprisonment for three years or more, attempts to
commit murder is liable to suffer death.
may be being on premises for unlawful purpose etc. In such
situations, the convict is liable to be punished either for the
attempted offence or for the completed offence. Section 18(3)
Finally if there is a defence for the substantive offence the
defence is also available for the attempt of that substantive
Commented [sq89]: Where an act amounts to a
complete criminal offence, as defined by a provision of this
Act, and is also an attempt to commit any other criminal
offence, a person who does the act commits a criminal
offence and is liable to be convicted and punished under
either provision or under this section

offence. eg provocation for the attempt of murder. Section 18

Commented [sq90]: A provision in this Act with respect
(4) to intent, exemption, justification, or extenuation, or any
other matter in the case of an act, shall apply with the
necessary modifications to the case of an attempt to do that
act

PREPARATION
At common law, preparing to commit a crime is not a crime – so
it is said that mere preparatory acts to commit a crime is not
punishable – to be punishable, the act complained of must be
proximate to the actus reus of the offence in question – so at
common law, the task was establishing whether the act
complained of was an attempt or merely preparatory. However,
in Ghana, preparation is a criminal offence on its own by virtue
of section 19.
Section 19: A person who prepares or supplies, or has in
possession, custody, or control, or in the possession, custody or
control of any other person on behalf of that person, any
instrument, materials, or means, with the intent that the
instruments, materials, or means, may be used by that person,
or by any other person, in committing a criminal offence by
which life is likely to be endangered, or a forgery, or a felony,
commits a criminal offence and is liable to punishment in like

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manner as if that person had attempted to commit that criminal
offence.
Merely having in your possession or in the possession of another
person on your behalf, such instruments, materials or means
without the requisite mens rea will not fix one with culpability.
The focus of the law is on instruments, materials or means that
cannot innocently be possessed except with the intention of
committing a crime.
A person who prepares to commit a crime is liable to be
punished as though he he attempted to commit a crime

ABETMENT
The crime of abetment is committed when a person renders
assistance to another for the purpose of committing a crime, and
thereby makes a contribution to the doing of a criminal act. A
person who commits the crime, that is the principal actor, may
have been supported by many persons who played various roles
to ensure the commission of the crime these persons cannot be
permitted to escape the grasp of the law thus, the need to
punish them. The import of the rules of accessorial liability is to
ensure that that each of without their individual assistance the
principals may never have attempted the crime.

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For a charge of abetment to succeed, the act complained of must
precede or be contemporaneous with the commission of the
offence. COP v. SARPEY & NYAMEKYE
Abetment is governed by Section 20 of Act 29.
INSTIGATION
The word also refers to “incitement” which involves the sowing
of criminal ideas in the mind of other. The act sowing the ideas
may be in the form of whipping up sentiments leading to the
commission of the crime or urging or psychological punishing of
another to commit a crime. Liability is incurred as soon as the
particular acts of instigation is done. It is irrelevant the effect it
has on its target.
Commented [sq91]: The accused was charged with
abetting a conspiracy to steal and the stealing of blouses.
The act which was said to constitute an abetment was
allowing the vehicle carrying the stolen to pass the check
point unchecked. That is, after the commission of the
offence. HELD: an act constituting abetment of a crime
must precede it or must be done at the very time when the
offence is committed. Abetment must be contemporaneous
in place, time and circumstance with the commission of the
offence. Sarpey’s conduct although suspicious, did not
amount to abetment
Commented [sq92]: A person who, directly or indirectly,
instigates, commands, counsels, procures, solicits, or in
any other manner purposely aids, facilities, encourages, or
promotes, whether by a personal act or presence or
otherwise, and a person who does an act for the purposes
of aiding, facilitating, encouraging, or promoting the
commission of a criminal offence by any other person,
whether known or unknown, certain, or uncertain,
commits the criminal offence of abetting that criminal
offence, and of abetting the other person in respect of that
criminal offence.

R v ASSISTANT RECORDER OF KINGSTON UPON HULL; EX

PARTE MORGAN: The accused incited a seven year old boy to
commit acts of gross indecency with him. The assistant public
prosecutor released him since the charged sheet was drawn
without the consent of the dpp. In ordering the mandamus for
re-try parker c.j. held as follows. Held: in the crime of incitement,
which is a common law misdemeanor it matters not that no
steps have been taken toward the commission of the attempt or
if the substantive offence. It matters not, in other words whether
the incitement (instigation) had any effect at all, it is merely the
incitement or the attempting to incite which constitutes the
offence.

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R v NKOSIYANA: The accused mooted the assassination of a
political figure to another and offered to raise money for the
purpose and in fact paid part of the deposit to ensure that the
deed would be done. The person with whom he made all these
arrangements was in fact an undercover agent. He was convicted
of incitement and he appealed. Held: one is guilty of the offence
of abetment if he reaches and seeks to influence the mind of
another to the commission of a crime e.g. by suggestion,
proposal, request, exhortation, gesture, argument, persuasion,
inducement, goading or the aroused of cupidity.
COMMAND
Command involves giving instructions to another for that other
to commit a crime – it often occurs in the context of service men
– army, police etc.
COUNSEL
Counsel connotes advising, admonishing etc a person to commit
a crime. According to Mensa-Bonsu, with respect to counseling,
unlike instigating, liability is incurred only when the crime is
actually committed according to the given advice – therefore, in
the case of counseling, there is no liability unless the crime is
Commented [sq93]: The appellant counseled another to
actually committed. R v CALHEAM. However, according to Kissi, kill someone. The person (zajac) did kill the person whom he
was required to kill. The appellant was convicted for
this view is not supported by the Act because under sec 20(3), a abetting murder by counseling. She appeals. HELD:
dismissing the appeal. So long as the principal offence is
person is still liable to be punished for abetment, whether it be committed by the one counseled , and so long as the one
counseled is acting within the scope of his authority or
counseling or otherwise, even if the offence is not actually advice and not in the accidental way or some such similar
then the counselor abets the commission of the crime.
committed – this is especially so, as all acts of accessoryship have
been subsumed under the umbrella term of abetment.
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PROCURE
To procure is to get another to commit a crime – procurement
may take the form of making arrangements for equipment for
the commission of the crime or of hiring or getting an expert, like
a professional assassin, to do the job – contract killing.
The act of procurement must have been done with the intention
of securing a crime – thus, where one is asserting a legal right or
charting a legal course, he is within his rights, and liability does
not arise even if it was foreseeable that others would take
advantage of the situation to commit a crime. REPUBLIC v TEMA
DISTRICT MAGISTRATE GRADE 1; EX PARTE AKOTIAH, R v
CREAMER
AIDING
Aiding involves lending assistance or help to another to commit
a crime. At common law, the aider was required to be physically
present at the crime scene to lend assistance to the commission
of the crime before liability could arise. However, in modern
times, the requirement of physical prescence is obsolete
because of technological advancement. THAMBIAH v R
The principle here is that if a man helps another in preparation
for crimes of a certain nature with the intention that the other
shall commit crimes of that nature, he abets those crimes when
they come to be committed. Also, a person who supplies an
instrument which is essential to the commission of a crime is
held to be liable as an abettor.
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Commented [sq94]: the applicant was upon an grant of
an ex parte motion which required of them to show cause
why they were not to sign a bond of peace because they
intended to install a chief which was opposed by some
persons brought the present application for a declaration
and an order quashing the said order by the magistrate
court. HELD: one cannot be guilty of procuring the
commission of an offence by embarking upon a course of
conduct which was lawful, even though it may induce a
breach of the peace. In quashing the order of the magistrate
court the Agyepong J. noted that the action was of the
applicant was in no why lawful and as such even if the said
lawful acts of the applicant would compel someone to
breach the peace they were in no way responsible or said to
have procured the said breach of peace
Commented [sq95]: the accused arranged for an
abortion to be done on a young lady by a certain mrs.
Harris. The lady died in the course of the abortion. The issue
is whether the accused could be convicted for abetting
manslaughter. Held; A man is guilty of involuntary
manslaughter when he intends an unlawful act and one
likely to do harm to the person and death results which was
neither foreseen nor intended. It is the accident of death
resulting which makes him guilty of manslaughter as
opposed to some lesser offence such as assault or abortion
as in the present case. thus, since the accused procured the
abortion which was unlawful and led to the death of the
lady he was liable for abetment of manslaughter.
Commented [sq96]: Appellant was convicted of abetting
another man for whom he opened a bank account under a
false name and description, which account was used to
dispose of forged cheques. Held: A man who aids another in
the preparation for a crime of a certain nature with the
intention that the other should commit the crime abets the
crime when it is committed. Hence in the present case the
appellant opened the account under the false with the
intention that the accused would deposit money through
fraudulent means.
NATIONAL COAL BOARD v GAMBLE: The NCB sold a bulk of
quantity of coal. A carrier’s lorry was sent to fetch part of it. The
lorry was loaded with a quantity of coal and the NCB’s
weighbridge clerk (whose task was simply to find how much coal
had been loaded in order to charge for it) then discovered that
the load was in excess of what was allowed to be carried in the
lorry on the highway. At that point, he could have insisted that
the lorry be relieved of sufficient coal to make it law-abiding. But
all he did was to call the attention of the driver to the overload.
The driver said he would risk it, and the clerk handed him the
weighbridge ticket (which passed ownership of the coal to the
buyer) and allowed him to drive away with his load. HELD: It was
held that the weighbridge operator, and through the NCB as his
employer, became a party to the offence of driving the lorry
when overweight
On another score, it should be noted that the abettor’s help may
be given before or during the commission of the crime, –
examples of help given before the crime include supplying the
tools or materials for the crime; imparting know-how. Help
includes co-operation – e.g. acting as look-out – the look-out
gives warning to the perpetrator if necessary and his presence is
a comfort to the perpetrator – another example of help is
manning a get-away car.
The abettor need not share the mens rea of the principal – it is
enough if the abettor knows of the principal’s intentions – that
is, the abettor must know that he is helping with a crime

103 | P a g e
ENCOURAGE
This connotes moral and psychological support to the principal
that fortifies his resolve to commit the crime. In this light, a
person may be held as an abettor by being present at the crime
scene and applauding the efforts of the principal without
actually rendering assistance. R v CONEY. However, a person
does not become an abettor merely by failing to prevent an
offence – that is to say, it is no criminal offence to standby, a
mere passive spectator of a crime. R v CLARKSON
Presence at the time of the commission of the offence would
render a person culpable if it is shown –
Commented [sq97]: The accused were seen at the venue
of a prize fight. It was established that some persons in the
crowd were encouraging the fight. However, the three
accused were not seen to do anything and there was no
evidence how they got there or how long they stayed. Held:
one can be held to have wilffuly encouraged the
commission of a crime if he was voluntarily and purposely
present at and witnessing the commission of the crime and
offers no opposition thereto though he might be reasonably
expected to prevent it and had the power so to do or at
least express dissent. The presence of the accused at the
fight amounted to abetting despite the fact that they did
not act or utter a word to that effect. Non accidental
presence however is not conclusive of abetting.

 that the presence was non-coincidental or accidental – that Commented [sq98]: the appellants were convicted of
aiding and abetting rape by their fellow soldiers. The
is, the presence was on purpose, and appellants at the time of arriving at the rape scene were in a
drunken state and they stood and watched without doing

 the presence was intended to lend support to the principal anything whilst the rape was ongoing. Held: their mere
presence did not give encouragement to the crime. It must
be shown that they had the intention to encourage and
actually did encourage the perpetrators of the crime.
OBENG v. THE REP: The accused was charged with abetting
other to commit abortion by accompanying her to the doctor
charged with performing the abortion. HELD: per the majority:
a woman who accompanied a friend twice to negotiate for
abortion is not guilty of abetting the crime since she was not
present when the abortion itself took place. Minority view( azu
crabbe); the accused’s presence showed that she was an
accomplice.
FACILITATE
This connotes easing or making easy the commission of a crime
– for instance, a security guard who purposely absents himself
104 | P a g e
from post to make it easy for thieves to raid the premises. For
liability to arise, it must be shown that the person knew that a
crime was going to be committed and he eased the
circumstances for the principal by his act or omission
PROMOTE
You promote the commission of a crime by knowingly providing
the financial or material resources to the principal to commit the
offence.

In all acts of abetment, the abettor must do the act complained

of purposely or for the purpose of securing the commission of
the act of the principal – that is, the abettor must intentionally
do the act – therefore, unintentional or negligent acts that tend
to render assistance to the principal would not do
CONSEQUENCES OF ABETMENT
Where the offence abetted is actually committed, the abettor is
Commented [sq99]: A person who abets a criminal
deemed to have committed the offence. SECTION 20(2). Where offence shall, if the criminal offence is actually committed in
pursuance of, or during the continuance of, the abetment,
the offence is not actually committed, it follows that the abettor be deemed to have committed that criminal
offence.
is not deemed to have committed the offence – but this does not
mean that the abettor escapes liability.
In the case of abetment of murder, a superior officer who
commands a subordinate to kill unlawfully knowing that the
killing will be unlawful, is held in a special light.

105 | P a g e
A person charged as an abettor is responsible only for crimes
within the contemplated purpose of the crime he abetted. The
abettor is punishable for abetting the offence he/she intended
Commented [sq100]:
to abet. SECTION 21(1)(a). So if A instructs B to assault C and B
kills C, A will not be guilty of abetment of murder but abetment
of assault, And if – A incites B to commit robbery by threats,
without violence on C. B in attempting to commit the robbery, is
resisted, and murders C. Here A commits the criminal offence of
abetting robbery, and not of murder
EFFECT OF SECTION 21(1)(a) AND (b)
So where a person abets a particular crime or abets a crime
against or in respect of a particular person or thing and the
principal actually commits a different criminal offence, or
commits the criminal offence against or in respect of a different
person or thing (i.e. transferred intent), or in a manner different
from that which was intended by the abettor, the abettor will
not be liable for abetting the offence that was actually
committed except where –
 the offence actually committed was a probable
consequence of the endeavour to commit the crime
intended, or
 the offence actually committed was substantially the same
as the offence the abettor intended to abet, or
 the offence actually committed was within the scope of the
abetment.

106 | P a g e
THUS, A incites B to steal a horse. B, in pursuance of the
incitement, gets the horse by false pretences. Here A commits
the criminal offence of abetting the offence which B has
committed Or if A instructs B to kill C by poisoning him and B
chooses instead to strangle C, A will be inculpated for abetment
of murder
By sec 21(2) a person, who abets a riot or unlawful assembly with
the knowledge that the rioters or unlawful assemblers intend to
use or are likely to use violence, is liable for any offence
committed by any of the rioters or unlawful assemblers in
executing the riot or unlawful assembly, although the abettor did
not intend to abet the particular offence that was committed
Commented [sq101]: The appellant abetted a riot
aside of the riot or the unlawful assembly. REGINA v KOFI ANTWI although he had knowledge that violence would be used.
Held: anyone who abetted a riot is liable for any violence
PUNISHMENT OF ABETMENT used

An abettor is liable to be punished in the same way as the

principal where the offence is actually committed. SECTION
20(2)
Where the offence is not actually committed, the abettor is also
punishable in the same manner as if the offence had actually
been committed. SECTION 20(3)(b)
However, where the offence is not actually committed and the
offence abetted carries the death penalty, the abettor is liable to
suffer imprisonment for life. SECTION 20(3)(a)
If a person, who is within the jurisdiction, abets the doing of an
act beyond the jurisdiction, which act if done in the jurisdiction
107 | P a g e
would be a criminal offence, that person is punishable as if
he/she had abetted the criminal offence. SECTION 20(7)
DEFENCES TO ABETMENT
An abettor is entitled to a defence under the Act, although his
co-abettors or the principal is not entitled to that defence.
Commented [sq102]: An abettor shall have the benefit of
SECTION 20(6). In line with this, where the act of the principal any matter of exception, justification, or extenuation to
which the abettor is entitled under this Act, although the
amounts to no crime, the abettor would be entitled to an person abetted or any other abettor is not entitled to the
like benefit.
acquittal.
There are two possible defences to abetment – countermand
and withdrawal. R v CROFT. However, a secret decision to
withdraw will not do. R v ROOK

OFFENCES AGAINST THE PERSON

These are made of crimes involving physical harm to the body of
a person. They range from attempting to make unpermitted
physical contact with a person, through the slightest of contacts,
through contact of a sexual nature, up to extinguishing the life of
a person.

HOMICIDE
This refers to the killing of a person and it may be lawful or
unlawful. It is lawful if it is justifiable or excusable in law or if it is
authorized by law. Justifiable killing arises where for instance, a
police officer kills to prevent the commission of a crime.

108 | P a g e
Authorized killing arises in the situation where an officer kills in
the execution of a death sentence imposed by a court
Unlawful killing arises where it is actuated by an intention to kill
or it is done recklessly or through gross negligence. Unlawful
homicide are of two (2) types:
 Murder, and
 Manslaughter.
MURDER
Commented [sq103]: A person who commits murder is
Section 46 criminalizes murder and the offender is liable to suffer liable to suffer death.
death. Murder is defined under section 47. In simple terms, Commented [sq104]: A person who intentionally causes
the death of another person by any unlawful harm
murder is intentional killing through unlawful harm. commits murder, unless the murder is reduced to
manslaughter by reason of an extreme provocation, or any
other matter of partial excuse, as mentioned in section 52.
The elements of murder are the following:
i. There must be a death;
ii. The death must be through harm;
iii. The infliction of the harm must be unlawful;
iv. The accused must have inflicted the harm; and
v. The harm must have been inflicted intentionally with the
intention to kill.
The mens rea requirement here of intention is very important
because it is the main element that distinguishes the offence of
murder from most forms of the offence of manslaughter.
SERECHI v THE REPUBLIC: The appellant were employees of the
Ashanti Goldfields LTD. In Obuasi. They were conveying firewood
trucks on a locomotive train from Obuasi to a village. Some non-
employees jumped unto the trucks as the train started moving,
109 | P a g e
clearly to catch a free ride. The appellant allegedly approached
the deceased, beat him up and consequently, pushed him out of
the trucks as it gathered speed. He was ran over by the train and
died as a result. The appellant was convicted of murder. HELD:
there was sufficient evidence of an intention to cause death and
the infliction of unlawful harm. The essential elements of the
offence of murder are intent to caused death and the infliction
of unlawful harm. Their appeal against a conviction of murder
was dismissed. the essential ingredients of the offence of
murder are the intent to cause death and the infliction of
unlawful harm, and the one essential ingredient of manslaughter
is causing death by unlawful harm. For a person to be convicted
of murder, the prosecution must prove, beyond reasonable
doubt, each of the essential ingredients of the offence of
murder. Where the prosecution is only able to prove that the
death was caused by an unlawful harm without proving the
intent to cause death, the charge for murder fails.
The actus reus of murder – the infliction of unlawful harm
resulting in death – on the face of it appears a simple
requirement, but in practice it presents real evidential
difficulties. This is especially so where the body of the victim is
not found.
Unlawful Harm
Commented [sq105]: “harm” means a bodily hurt,
Harm is defined by section 1 as bodily hurt, disease, or disorder, disease, or disorder whether permanent or temporary
whether permanent or temporary. Unlawful harm is defined by

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 Commented [sq106]: Harm is unlawful which is
Section 76 as harm which is caused intentionally or negligently, intentionally or negligently caused without any of the
justifications
and without any lawful justification or excuse. mentioned in Chapter One of this Part.

Intention to Cause Death

This is same as intent as encapsulated under Section 11. Motive
is irrelevant here.

AWEDAM v THE REPUBLIC

The accused run the deceased done after the deceased had
testified against his friend in a court. Prior to killing of the
deceased, the accused had threatened to teach the deceased a
lesson. The prosecuted in his case to the court argued that the
accused had a motive for killing the deceased as such should be
held liable for his death. Accused pleaded the defence of
accident. Held: The law did not as a rule require proof of motive
as an essential element in a crime. The intent to kill must
therefore be discovered from the appellant’s acts and conduct
during the events that took place at the time the deceased was
knocked down. Consequently, when in the instant case of a
murder charge, it became necessary to prove motive, it was
obligatory on the trial judge in his summing-up to direct in
substance that notwithstanding the proof of threats of death by
the appellant on 2 February, the jury should be satisfied that the
conduct of the appellant at the material time of the killing of the
deceased on 4 February showed an intent to kill.
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The mere fact that the killing was violent in nature does not
mean the accused had the intention to kill. So it is not murder
merely because the accused employed violent means in killing
the victim. In all, there must be proof of intention to kill. BOAKYE
v THE REPUBLIC, SERECHI: It was noted in Serechi, that in the
particular circumstances of the case the learned judge should
have directed the jury that under section 11(3) they should
presume, from the nature of the harm, that the appellants
intended that it should cause the death of the deceased, unless
there was evidence from the appellants which showed that they
believed that the said harm would not cause or contribute to
cause his death. Since no such evidence was led by or for the
Commented [sq107]: There had been a fight between
the appellant and the deceased following a quarrel between
the appellant and a group of boys, including the deceased.
And that after the appellant and the deceased had been
separated and the deceased and his friends were walking
away from the scene of the fight, the appellant went to his
house which was nearby, picked a knife, chased the boys
until he caught up with the deceased and stabbed him in
the chest resulting in his death. The appellant argued that
he did the stabbing under self-defence. HELD: the court per
the majority view held that the prosecution had been
successful in proving that the accused had the intention to
kill the deceased. Also, this was not a case of self defence
because the deceased was not armed at the time of the
attack and the appellant’s life was under no danger to
warrant him the use of force.

appellants which could rebut that presumption, the proper

direction the judge should have given is that the jury should
presume intent to kill as a matter of law from the nature, manner
and circumstances of the harm.
An intention to kill may also be inferred from the nature of the
instrument or weapon employed in the killing. SENE v THE
REPUBLIC: whilst the first appellant was engaged in an unlawful
fist fight with the deceased the second appellant felled the
deceased with a stone he threw at him and that the first
appellant continued punching the deceased even when the
deceased was on the ground. The deceased subsequently died
from injuries he sustained in the fight. HELD: the one important
factor which distinguished the case of murder from
manslaughter was intention. The element of intent in a
homicide resulting from a fight was determined by considering

112 | P a g e
whether from the circumstances it could be said that the
person who killed had the intention to cause death as distinct
from a mere intention to fight. Such an intention might be
inferred from the instrument or weapon used in the killing or
the manner in which the harm which resulted was inflicted. It
should not, as was in this case, simply be inferred from a
consideration of who began the fight
Where a person does an act in good faith, for the purposes of
medical or surgical treatment, an intent to cause death shall not
be presumed from the fact that the act was or appeared likely to
cause death. SECTION 67(1),
Because it is not all killings by unlawful harm is murder, it is
incumbent on the trial judge to direct the jury also on
manslaughter. IDDRISU GONJA v THE STATE. AKOM v THE
STATE: the accued killed his aunt by slicing her throat with a flick
knife. He pleaded as his defence that he mistook her as the
person who had attacked him. In directing the jury the trial judge
non-directed by misdirection that if the unlawful harm lead to
the death of the person then the accused is guilty of murder.
Held: allowing the appeal. , not every unlawful act of an accused
which results in death is murder, unless there is clear evidence
which shows that the accused also intended death to result from
the unlawful harm or the circumstances are such that a
reasonable man would realise that his act might cause serious
and fatal bodily hurt, and the degree of the probability or
possibility of that type of harm resulting in death was apparent
to him but he is indifferent or reckless as to the result. Where
113 | P a g e
Commented [sq108]: Where a person does an act in
good faith, for the purposes of medical or surgical
treatment, an
intent to cause death shall not be presumed from the fact
that the act was or appeared likely to have
caused death.
Commented [sq109]: the accused inflicted a blow with a
dagger on the deceased when trying to escape from his
grips after he was caught stealing palm wine. He was
convicted for murder. He appeals.
HELD: allowing the appeal. According to the definitions of
murder and manslaughter as contained in sections 47 and
51 respectively of the Criminal Code, 1960 (Act 29),
manslaughter is homicide caused by unlawful harm, that is
harm intentionally inflicted, whereas murder is death
caused intentionally by harm, intentionally inflicted. The
judge in directing the jury should have drawn a clear
distinction between intent to cause harm which if found to
exist will make the harm unlawful and intent that the
unlawful harm so caused should also cause death. The
summing-up and the final direction to the jury sinned
against this principle, because if the jury had been directed
that if they were satisfied that the appellant intended only
to cause bodily harm they should return a verdict of
manslaughter instead of murder, they would certainly have
done. Thus when the intent with which an act is done is
simply to cause harm, death which may result from that
harm is manslaughter only, and not murder. But if harm is
inflicted intentionally, i.e. unlawful harm is inflicted with a
further intent that unlawful harm should cause death, the
death which may result, will be murder
the harm, though unlawful, was not done negligently or
intentionally but resulted in death at least it can be
manslaughter only. Clear evidence that the death of the
deceased resulted from the acts of the accused

MANSLAUGHTER
SECTION 50 states that manslaughter is a first degree felony and
as such does not carry a death sentence. Section 296(1) of act
30 sentence ranges from life imprisonment to any lesser term.
Section 51 defines manslaughter as follows: A person who
causes the death of another person by an unlawful harm
commits manslaughter, but if the harm causing the death is
caused by negligence that person has not committed
manslaughter unless the negligence amount to a reckless
disregard for human life. There are three types of manslaughter.
a. intentional unlawful killing reduced to manslaughter by
extenuating circumstances or excuse – for instance, where
a person, under extreme provocation, intentionally kills
another
b. unintentional unlawful killing.
c. killing resulting from gross negligence – i.e. negligence that
amounts to a reckless disregard for human life – otherwise
known as involuntary manslaughter

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Unlawful Intentional Killing Reduced to Manslaughter
This is seen under section 47. These circumstances as seen under
SECTION 52 are as follows:
a. deprivation of the power of self-control by extreme
provocation given by the deceased under section 52(a).
b. justifiable causing of excess harm resulting from such terror
of immediate death or grievous harm as in fact deprived the
accused of the power of self-control – that is –
manslaughter as a result of excessive use of otherwise
justified force under section 52(b). The principle is that a
person who is permitted to use force cannot exceed the
bounds of such force without incurring liability – e.g. where
a person under attack responds to that attack with more
ferocity than the situation demands – except in the
situation just described. KONTOR v THE REPUBLIC.
c. acting in the belief, in good faith and on reasonable
grounds, that one is under a legal duty to cause death or to
do the act under section 52(c).
d. killing in circumstances induced by the effects of childbirth
or lactational psychosis – a woman, causing the death of her
child of less than 12 months old, at a time when the balance
of her mind was disturbed by reason of her not having fully
recovered from the effect of giving birth to the child or by
reason of the effect of lactation consequent upon the birth
of the child under section 52(d)
115 | P a g e
Commented [sq110]: A person who intentionally causes
the death of another person by an unlawful harm commits
murder, unless the murder is reduced to manslaughter by
reason of an extreme provocation, or any other matter of
partial excuse, as is mentioned in section 52.
Commented [sq111]: 52. Intentional murder reduced to
manslaughter
A person who intentionally causes the death of another
person by unlawful harm commits
manslaughter, and not murder or attempted murder, if that
person
(a) was deprived of the power of self-control by an extreme
provocation given by the other
person as is mentioned in sections 53, 54, 55 and 56; or
(b) was justified in causing harm to the other person, and, in
causing harm in excess of the harm
which that person was justified in causing, that person
acted from a terror of immediate death
or grievous harm that in fact deprived that person for the
time being of the power of
self-control; or
(c) in causing the death, acted in the belief, in good faith
and on reasonable grounds, of being
under a legal duty to cause the death or to do the act which
that person did; or
(d) being a woman she caused the death of a child, which is
a child under the age of twelve
months, at a time when the balance of her mind was
disturbed because she had not fully
recovered from the effect of giving birth to the child or by
reason of the effect of lactation
consequent on the birth of the child.
Commented [sq112]: The appellant and the deceased
were cousins who lived in the same house. Appellant
stabbed the deceased who was the aggressor and the
appellant uttered remorse words when the incident
happened. During the trial, the judge failed to direct the jury
on manslaughter as an alternative verdict given the
circumstances of the attack. HELD: In allowing the appeal
The appellant was justified in using force to defend himself,
even though he exceeded the limit permissible given the
circumstances. Therefore, the judge should have directed
the jury on manslaughter.
 The time limitation of 12 months is based on the
presumption that within 12 months of delivery, any such
psychosis would have manifested itself. R v CHIMA
Killing resulting from negligence that amounts to a reckless
Commented [sq113]: : accused killed her twin babies
hours after she delivered them because they were
considered an abomination. Her conviction of murder was
substituted by one of manslaughter..

disregard for human life – Involuntary Manslaughter

There are degrees of negligence thus, not every negligence
which leads to the death of another would amount to
manslaughter. In criminal law, we have, at least, two forms of
negligence:
i. negligence simpliciter, which is the province of section
12, which provides:
A person causes an event negligently,
where, without intending to cause the
event, he causes it by a voluntary act,
done without the skill and care that
are reasonably necessary under the
circumstances
ii. negligence amounting to a reckless disregard for human
Commented [sq114]: A person who causes the death of
life, which is the province of sec 51. another person by an unlawful harm commits
manslaughter, but if
Thus, for negligent killing to amount to manslaughter, it must be the harm causing the death is caused by negligence that
person has not committed manslaughter unless
of a higher degree than the sec 12 form of negligence. It must the negligence amount to a reckless disregard for human
life.

amount to a reckless disregard for human life. STATE v TSIBA
Reckless disregard for human life may be comstituted in one of
two ways:
Commented [sq115]: the accused shot another hunter
believing him to be an animal after making all the noise
required to ascertain if the object to be shot at is an animal.
HELD: He was held not be liable for manslaughter as his
conduct in no way amount to reckless disregard for human
life.

116 | P a g e
  gross inadvertence that causes injury; and
 acts done by professionals without the necessary skill
required under those particular circumstances.
And recklessness here is one of two denotations:
 either doing an act which amounts to the taking of
unjustified risk, i.e. you foresee there is risk of the
consequence following but you unreasonably decide to
take the risk, or
 you engage in conduct which involves the taking of
unjustified risk even though the actor does not know of the
risk.
In order to inculpate the accused, the prosecution must show:
 that even though the accused foresaw the consequence of
his conduct as probable or likely, he pursued his conduct
with the knowledge of the risks involved though without
the desire that that consequence should ensue, and
 that a reasonable man having foresight would not have Commented [sq116]: the appellant a medical doctor
taken the risks of such consequence. appeals from his conviction of manslaughter. He
administered an overdose drugs to children leading to their
death. On appeal the solicitor general argued that so long as
The test is – what was the foreseeable consequence of the act the consequence of the accused act is death then it is
manslaughter. Held: the court held, rejecting the contention
and not what the actual result turned out to be. As such, of the S.G., for death to result into manslaughter then the
said death must have resulted from criminal negligence and
not just any negligence. The court in upholding the
conduct that appears harmless but which subsequently results conviction held that the death of the children from the
evidence
in death, would not be held to be reckless merely because death Commented [sq117]: The appellant was an anesthetic.
has resulted therefrom.All in all, it must be negligence connoting He failed during an operation to noticed that the patient
had stopped breathing due to a disconnect of the tube
a scant respect for the value of human life, and not merely connected to his wind pipe resulting in his death. He
appealed against his conviction of manslaughter. HELD: The
court in dismissing the appeal held that the appellant action
carelessness. AKERELE v R, ADOMAKO v THE REPUBLIC THE amount to gross negligent as he failed to advert his action
to the sole duty of ensuring that the patient was breathing.

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STATE v KWAKU NKYI: the accused was reported as being a good
and well-behaved student nurse at the Central Hospital in
Kumasi. He was called by a desperate parent to treat a sick child
and he agreed to do so. He took with him a syringe and a drug,
which he thought was mepacrine, but was in fact, arsenic (which
was identical in colour to mepacrine). The accused injected the
child with the arsenic. The child’s condition took a turn for the
worse and he died not long after. The cause of death was
established to be acute arsenic poisoning. HELD: Apaloo J held
that, ‘the fact that the accused was negligent is plain enough but
I cannot find on the evidence that such negligence was gross or
amounts to a reckless disregard for human life. At least in one
sense at any rate, the accused in responding to…the invitation
and proceeding [to the house where the child was] with a view
to attending to [him] showed anxious regard for human life. In
my judgment, it would not be right to hold that the accused’s
negligence amounts to a reckless disregard for human life simply
because possibly out of inadvertence or want of care, he mistook
the drug that he intended to administer to the sick child.’
MANSLAUGHTHER IN CASES OF CAR ACCIDENTS
In the case of manslaughter in connection with driving of an
automobile, the driving must not only be reckless – it must be of
a nature or manner so gross and outrageous as to demonstrate
reckless and complete disregard for human life.
MAHAMA v THE STATE

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The appellant ran over a child after his brakes and steering wheel
failed him on the highway. At the time, he was not on a high
speed. He was convicted for manslaughter. Held: The court per
ollenu j.s.c. in allowing the appeal held as follows: for an accused
person to be guilty of manslaughter in connection with the
driving of a motor vehicle there must be evidence of acts of
omissions which in law can amount to the high degree of
recklessness which shows gross disregard for human life. The
driving must not only be reckless, it must be of a nature or
manner so gross and outrageous as to demonstrate reckless and
complete disregard for human life.
ESSEL v THE STATE
the appellant, who was driving a five ton Bedford truck along the
Accra-Winneba Road in the direction of Winneba did not slow
down at a “T” junction where people were standing but
maintained the same speed and attempted to overtake the
vehicle in front, causing a collision and resulting in the death of
a bystander. HELD: the appellant’s conduct amounted to a
reckless disregard for human life since special care is called for
at a “T” junction even when there are no by-standers. The
evidence, including the appellant’s own version of the accident,
amply supports the prosecution’s case of negligence amounting
to a reckless disregard of human life

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GENOCIDE
Genocide is governed by section 49A.
SUICIDE
Suicide, is self-murder – that is, a person deliberately putting an
end to his/her own existence. The state punish persons who
attempt suicide but are unsuccessful because no man has the
power to destroy life – not even one’s own life
Commented [sq118]: (1) A person who commits
genocide is liable on conviction to be sentenced to death.
(2) A person commits genocide where, with intent to
destroy, in whole or in part, any national,
ethical, racial or religious group, that person
(a) kills members of the group;
(b) causes serious bodily or mental harm to members of the
group;
(c) deliberately inflicts on the group conditions of life
calculated to bring its physical destruction
in whole or in part;
(d) imposes measures intended to prevent births within the
group;

The focus of the offence of suicide are

 the one who unsuccessfully attempts to kill himself
(attemptor of suicide), and
 the one who lends assistance to another in that other’s
unsuccessful or successful attempt to kill himself (abettor
of suicide)
Commented [sq119]: (1) A person who abets the
It is governed by Section 57 of Act 29 commission of a suicide commits a first degree felony
whether or not the
R v CROFT suicide is actually committed.
(2) A person who attempts to commit suicide commits a
misdemeanour.
two persons entered into pact to commit suicide. Both of them
attempted suicide on one day but one changed his mind and left
the scene to seek help. In his absence his partner succeeded in
killing herself. Held: that he was an abettor wince his acts made
him an accessory before the fact to suicide.
Mcshane v. R.
The appellant inherited from a grandma properties in which the
mother had a life interest in the property. The mother was sick
and the appellant arranged for the mother to commit suicide.
120 | P a g e
The attempt failed and she was convicted for attempting and
procuring and counseling other to commit suicide. Held: the
offence did not require that the suicide should have been
committed in the pursuance of the abetment. Appeal dismissed.
CHILD AS AN OBJECT OF HOMICIDE
The offences of murder and manslaughter can only be
committed in respect of a person. A person is one that has been
fully brought forth and not living within the body of another. In
respect of a child victim, the accused cannot be held for murder
or manslaughter if the child is not a person – thT is a child in the
womb of her mother.
According to William Blackstone, to kill a child in its mother’s
womb, is now no murder, but a great misprision: but if the child
be born alive, and dieth by reason of the potion or bruises it
received in the womb, it seems, by the better opinion, to be
murder in such as administered or gave them.
The question then is – at what point exactly does a fetus become
a person as to render its killing murder or manslaughter and not
Commented [sq120]: In order that a child may be
abortion? Section 66(1) of Act 29 answers this. This means that considered a person for the purposes of murder or
manslaughter to
even if the child is vagitus uterinus – crying in the uterus or cause its death, it is necessary that, before its death, the
child should have been completely brought forth
vagitus vaginalis – crying with its head still in the vagina, it alive from the body of the mother.

cannot be the object of homicide – because it is still in the body

of the mother hence not a person.

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However, by section 66(2), the child becomes a person when it
is completely brought forth alive from the body of the mother
even if –
 the child has not breathed, or
 its blood circulation has not commenced and is still
dependent on the mother’s blood circulation, or
 it is still attached to the mother by the umbilical cord
The next question is: at what point should the harm be caused to
render the killing of the child murder or manslaughter? In other
words, should the accused, to be liable, cause the harm to the
child before or after the child is born? By section 66(3), the
accused may be liable for murder or manslaughter whether the
harm was caused to the child before or after it was brought forth
alive
The law does not concern itself with when the harm was inflicted
– rather, the concern is the time of death. Thus, if you cause
unlawful harm to a child before it is born, you will be guilty of
murder or manslaughter, as the case may be, if the child dies
after it is born. ATTORNEY GENERAL’S REFERENCE (NO. 3 OF
1994), R v WEST
Section 60. Causing harm to child at birth
A person who intentionally and unlawfully causes harm to a
living child during the time of its birth commits a second degree
felony.
61. Explanation as to causing harm to child at birth
122 | P a g e
Commented [sq121]: It is murder or manslaughter, to
cause death to happen to a child after it becomes a person,
within
the meaning of this section, by means of harm caused to it
before it became a person.
Commented [sq122]: the Respondent stabbed his
girlfriend in the abdomen, knowing her to be 5 months
pregnant with his child. She received medical attention in
hospital where a cut in the wall of the uterus was found and
sewn up. The fetus was mistakenly believed to be uninjured.
The stab to the uterus caused the mother to give birth to a
grossly premature girl, who received exemplary medical
care but survived for only 120 days. The accused was
charged with murder. The trial court held a submission of no
case. The AG referred a question of whether injury caused
to a foetus in the utero could form the basis of a charge of
murder or manslaughter. Held: the court in holding in the
affirmative held as follows: that in law the fetus is treated as
part of the mother until it has a separate existence of its
own. Thus, to cause injury to the fetus is just as unlawful as
any assault upon any other part of the mother. Therefore
such unlawful harm could form the basis for murder.
Commented [sq123]: where an attempted abortion led
to premature delivery and death of the child, it was held
that if with the intention of causing an abortion a person
does an act which causes the child to be born earlier than
the natural time and in a state much less capable of living,
and it later dies in consequence of its exposure, the person
who put the child in that situation is guilty of murder,
notwithstanding the possibility of something being done to
prevent the death.
 1) Where harm is caused to a child during the time of its birth,
or where, on the discovery of the concealed body of the
child, harm is found to have been caused to it, the harm
shall be presumed to have been caused to the child before
its death.
2) The time of birth includes the whole period from the
commencement of labour until the time when the child so
becomes a person that it may be murder or manslaughter
to cause its death.

ABORTION OR MISCARRIAGE
In medical science abortion is a term used to describe the event
of the expelling of the developing ovum before the twelfth week
of pregnancy; and miscarriage applies to a situation where the
expulsion takes place between the twelfth and twenty-eighth
week of pregnancy.
In Ghana, abortion or miscarriage is the premature expulsion or
removal of conception from the uterus or womb before the
Commented [sq124]: For the purposes of this section,
period of gestation is completed. SECTION 58(4). “abortion or miscarriage” means the premature expulsion
or removal of conception from the uterus or womb before
UNLAWFUL ABORTION the period of gestation is completed

A person who intentionally and unlawfully causes abortion or

Commented [sq125]: A person who intentionally and
miscarriage commits a second degree felony. Section 58(3). The unlawfully causes abortion or miscarriage commits a second
degree felony.
law does not make the actual abortion alone a crime – the crime
also consists in an act done with intent to procure or cause an
abortion.

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The offence covers two cases or situations
 first, where a pregnant woman uses any means with
intent to procure her own miscarriage - sec 58(1)(a) –
the actus reus here consists in 1) administering a drug,
poison, noxious substance or instrument or any other
means on oneself, or 2) consenting to the
administration by another of a drug, poison, noxious
substance or instrument or any other means on
oneself.
 the mens rea consists in the doing of any of the
prohibited acts with the intent to cause a premature
expulsion of a fetus from the womb.
 the second situation is where anyone else unlawfully
uses means, with intent to procure an abortion or
miscarriage – sec 58(1)(b)
 inducing a woman to cause an abortion is an
offence,
 inducing a woman to consent to causing an
abortion is an offence,
 abetting a woman to cause an abortion is an
offence, Commented [sq126]: The appellant administered on one
mensa drugs which was to abort her child. Mensah was
 attempting to cause abortion is an offence - accompanied by her friend to the appellant’s house after
trying to dissuade her from the act. However, the abortion
OBENG v THE REPUBLIC, was incomplete hence he was convicted for attempting to
cause abortion. He appeals Held: dismissing the appeal.
 supplying or procuring any item or implement Held: that mensa friend was not an accomplice. It is the
duty of the prosecution to establish, first, the intent to
cause miscarriage and secondly, the act or means used in
or drug knowing that it is intended to be used furtherance of that intent. If the act or means employed
does result in the termination of pregnancy, then the
to cause abortion is an offence. prisoner is guilty of causing abortion. If it is incapable of
causing abortion or did not in fact result in miscarriage, then
the prisoner will only be guilty of an attempt.

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The offence under sec 58(1)(b)(i) is committed where the effort
has been made for that purpose even if the mother is not
pregnant – that is – it is immaterial that the woman is not in fact
Commented [sq127]:
pregnant R v TITLEY.
The drug or noxious substance administered to cause the
abortion or miscarriage need not be poisonous – it can be any
matter that is ingested or administered for the prohibited
Commented [sq128]:
purpose R v HOLLIS.
Lawful Abortion
For abortion to be lawful, the law specifies who may commit it,
the circumstances under which it may be committed and the
location where it may be committed.
Thus, by section 58(2) abortion is lawful if the person committing
it is a registered medical practitioner specializing in gyneacology
or any other registered medical practitioner in a Government
Hospital or a registered private hospital or clinic, or in a place
approved by the Minister under an L.I. under any of the following
circumstances:
 where the pregnancy is the result of a crime – section
58(2)(a) – the caveat here is that it must be requested
by the victim or her next of kin or the person in loco
parentis – read together with section 42(d), this
provision suggests that a girl under 18 may be forced to
undergo an abortion if her parents so desire

125 | P a g e
  where the continuance of the pregnancy would result
in injury to the pregnant woman or would involve risk
to her life – section 58(2)(b) – the consideration here,
as Glanville Williams puts it, appears to be this: the
woman is a developed human being, sensitive to pain
and anxiety. She is established in the affections of her
family, and upon her the welfare of other children and
of a husband may depend. Thus, it is far more
important to consider her life and health than that of a
fetus, representing only a child-to-be, which has not
been fully formed, cannot feel pain, cannot live outside
the womb, and has not entered the human community
– the caveat here is that the woman must consent to it,
or if she lacks the capacity to consent, her guardian or
next of kin must consent to the abortion -
 where there is a substantial risk that if the child were
born, it may suffer from, or later develop, a serious
physical abnormality or disease – sec 58(2)(c) – is this
not suggestive of eugenics, i.e. that abortion may lead
to the betterment of man’s genetic inheritance? Or is it
a consideration for the parents of the would be
abnormal child so they would not be blighted by having
to rear a grossly defective or deformed child? Or is it a
consideration of the tax payer’s money that would be
spent on it in special health care and educational
institutions? It should be noted that the mere carrying
of undesirable genes by the would be child will not
126 | P a g e
 suffice – the abnormality or disease must be a serious
one
 it should also be noted that any act which is done in
good faith and without negligence, for the purposes of
medical or surgical treatment of a pregnant woman is
justifiable, although it causes or is intended to cause
abortion or miscarriage, or premature delivery, or the
death of the child – section 67(2)
The question arises as to whether the lawful abortion should be
carried out entirely by the registered medical practitioner from
start to finish or whether a nurse could carry out the process
under the instructions of the registered medical practitioner.
This was the subject of dispute in Royal College of Nursing of
United Kingdom v. Dep’t of Health & Social Security.
CONCEALMENT OF BODY OF CHILD AT BIRTH
It is an offence for any person to conceal the body of a child who
has been brought forth, whether such child was born alive or
stillborn, with the intent to conceal the fact of its birth,
existence, or death, or the manner or cause of its death.
SECTION 62(1). This is not a strict liability offence.
The mens rea is the intention to conceal the fact of birth,
existence, or death, or the manner or cause of the death.
By sec 62(2) the offence does not apply to:
127 | P a g e
Commented [sq129]: the defendant issued a circular that
if a medical doctor instigated an abortion and the nurse
carried it to its fruition then the nurse does not commit the
crime of abortion. The plaintiff contended this was wwrong
and sought a declaration as against the defendant to that
effect. the Department of Health and Social Security
appealed against a declaration by the Court of Appeal that
acts carried out by midwives and nurses in performing the
termination of pregnancies contravened the Offences
against the Person Act 1861 s 58 because they were not acts
of a 'registered medical practitioner' within the Abortion Act
1967 s 1(1) Held: the policy of the Act was to broaden the
grounds on which abortions might be lawfully obtained.
Section 1(3) provided that treatment should take place in
ordinary hospitals except in cases of dire emergency, which
indicated that Parliament contemplated that it should be
undertaken as a team effort. In the light of this, s 1(1)
appeared to extend its protection to all those who played a
part in the termination, the requirement being that a
registered medical practitioner (a doctor) should accept
responsibility for all stages of the treatment, decide what
method should be used, and perform all the acts which, in
accordance with accepted medical practice, should be done
only by qualified medical practitioners. The appeal would be
allowed. Thus, the process should with the guidance of the
medical practitioner.
Commented [sq130]: A person who conceals the body of
a child, whether the child was born alive or not, with intent
to
conceal the fact of its birth, existence or death, or the
manner or cause of its death, commits a
misdemeanour.
  a child of less than 6 mths growth before its birth - This
means that one may only be guilty of the offence if the child
was more than six months old in the mother’s womb before
its birth;
 the case of intent to conceal the birth, existence or death of
the child, or the manner or cause of its death, from a
particular person – as the illustration goes – a woman
conceals from her father or mother the body of her child.
She has not committed a concealment of birth unless she
intended to conceal it from persons generally – There must
be an intention to conceal the birth, existence, or death of
a child from the whole world, other than the persons who
abetted or consented to the concealment – so it must be
shown that there was an intention to conceal the body from
persons generally, except persons who abetted or
consented to the concealment – as the illustration goes – a
woman conceals the body of her child from all persons
except a nurse who helped in the concealment. The woman
committed a concealment of birth although she did not
conceal it from her accomplice.
Section 62 must be read in light with Section 63. DONKOR v THE
REPUBLIC
NON FATAL OFFENCES
128 | P a g e
Commented [sq131]: Explanation as to concealment of
body of child
(1) A secret disposition of the body of a child, whether it is
intended to be permanent or not, may be a concealment.
(2) The abandonment of the body of a child in a public place
may be a concealment, if the body is
abandoned for the purpose of concealing the fact of its birth
or existence.
Commented [sq132]: the Appellant, an 18 year old girl
became pregnant by a man she claimed to be her boyfriend.
There was some interference with the pregnancy by this
boyfriend. As a result, the baby was expelled and it was
found in a public latrine
The Appellant explained that she went to the latrine and
there, something dropped from her after which she started
bleeding. She became frightened so she decided to walk to
a friend’s house with a view of informing her of what had
happened. The trial magistrate found her guilty of the
offence of concealment. HELD: the offence of concealment
of the body of a child under section 62 of Act 29 was not
one of strict or absolute liability. To succeed, the
prosecution must prove: (i) particulars which fall within
either subsection (1) or (2) of section 63, (ii) the fact that
the child was of six months’ growth before birth or above
and (iii) that the intention was to conceal the child’s birth,
death or existence from the whole world save persons who
were accomplices. whether a particular disposition or
abandonment is intended t be secret is a question of fact,
because the offence is not that of strict liability
SEXUAL OFFENCES
These are offences covering all acts with sexual connotations,
which are either without the consent of the other party, or with
the consent of the other party but considered inimical to public
health or public morality, engaged in for pleasure, gratification
or to obtain a commercial benefit. These include: rape,
defilement, sodomy, bestiality, incest, pimping etc.
RAPE
In Ghana the offence of rape is a first degree felony carrying a
sentence of not less than five years and not more than twenty-
Commented [sq133]: A person who commits rape
five years – Section 97 commits a first degree felony and is liable on conviction to a
term of
By section 98, “rape is the carnal knowledge of a female of imprisonment of not less than five years and not more than
twenty-five years.
sixteen years or above without her consent. The victim of rape
can only be a female who is 16 years or above. Then again, a man
cannot be the victim of rape – indeed, a man cannot even be
raped by another man. And a woman cannot be the perpetrator
of rape – this a function of the legal definition of rape in terms of
the insistence on carnal knowledge – this formulation excludes
women perpetrators since a woman does not have the natural
ability penetrate an orifice with her genitalia. On another score,
Commented [sq134]: “carnal knowledge is the physical
carnal knowledge in the definition of rape speaks of penile act of penetration it is the consent to that which is the
question. Such consent demands a perception as to what is
penetration per vaginam – that is, through or by way of the about to take place, as to the identity of the man and the
character of what he is doing. Once the consent is
vagina. Any other mode of penile penetration does not amount comprehending and actual the inducing causes cannot
destroy its reality and leave the man guilty of rape.”
to rape. Commented [sq135]: the accused had intercourse with a
prostitute on agreement of making a payment for the sex.
QUEEN v PAPADIMITROPULOUS, R v LINEKAR He failed to pay and was convicted of rape. Held: that the
action of the accused did not amount to rape as the act
agreed to was what occurred and nothing less. He only
failed to keep his side of the bargain

129 | P a g e
R v FLATTERY
The accused had sexual intercourse with the complainant under
the pretense of administering medical treatment for bout of fits.
Held: that the action of the accused amount to rape since what
he did was substantially different from what the victim
consented to. She consented to being treated medically and not
to the accused having sexual intercourse with her.
KAITAMAKI v R,
The accused had sexual intercourse with woman. During the
intercourse he noticed that the lady was longer consenting
however he persisted. Held: on appeal he dismissing the appeal
the court held speaking through lord scarman that the act of
sexual intercourse is a continuing act which ends only in
withdrawal. At the moment that she withdrew the consent the
rest of the sex was rape.
,
The requirement of penetration is merely an enquiry as to
whether any part of the penis went past the lips of the vagina –
so even if only the small tip of the penis entered the vagina, the
Commented [sq136]: Where, on the trial of a person for
accused would still be guilty of rape. Article 99. The Supreme a criminal offence punishable under this Act, it is necessary
to
Court, per Dotse JSC defined carnal knowledge in GLIGA & ATISO prove carnal knowledge or unnatural carnal knowledge, the
carnal knowledge or unnatural carnal
v THE REPUBLIC in the following words, “Carnal knowledge is the knowledge is complete on proof of the least degree of
penetration.
penetration of a woman’s vagina by a man’s penis. It does not
really matter how deep or however little the penis went into the
vagina. So long as there was some penetration beyond what is

130 | P a g e
known as brush work, penetration would be deemed to have
occurred and carnal knowledge taken to have been completed.”
Also, the requirement of penetration is not an enquiry as to
whether the man ejaculated and as such, it does not lie in the
mouth of the accused to assert that he is not guilty of rape
Commented [sq137]: The accused was convicted for
because he did not emit semen. R v MARSDEN rape. He contended that he had not ejaculated as such he
could not had raped the girl. HELD: The court in rejecting
The most important element on rape charge is the lack of the submission of his counsel held that the requirement of
the offence was penetration only and therefore the offence
consent. A charge of rape cannot succeed if the accused is able was completely proved.

to show that the woman consented to the sexual connection –

that is to say, consent is a complete defence to a charge of rape.
Consent is a complete defense to a charge of rape – so the
prosecution must prove absence of consent on the part of the
female alleged to have been ravished. It is difficult to distinguish
consent from mere submission. So for instance, when the
complainant was asked in a recent English case, Barbour v. HMA,
whether she consented, she replied: “It depends what you mean
by consent.”
Under Ghanaian law, consent is void if it is obtained by means of
deceit or of duress and it is obtained by deceit or duress if it
would have been refused but for the deceit of duress – Section
Commented [sq138]: 14(b). a consent is void if it is
14(b) and 14(f) respectively. obtained by means of deceit or of duress

14(f). a consent is, for the purposes of this section, obtained

R v OLUGBOJA
The accused offered to take the victims to their residence but
rather took her to his residence. He and his friend had sexual
131 | P a g e
by means of deceit or duress, or of the
undue exercise of authority, or to have been given by
reason of a mistake of fact, if it would
have been refused but for the deceit, duress, exercise of
authority, or mistake
intercourse with them without them consenting despite they not
using force or threat. Held: that, since the amendment of section
1 of the Sexual Offences Act 1956 by section 1 of the Sexual
Offences (Amendment) Act 1976, the offence of rape was having
sexual intercourse against the woman's consent; that the
offence was not limited to cases where sexual intercourse had
taken place as a result of force, fear or fraud and, therefore, the
judge had properly directed the jury and left to them the
question whether the complainant had consented to having
sexual intercourse with the defendant. Although "consent" is a
common word it covers a wide range of states of mind in the
context of intercourse between a man and a woman, ranging
from actual desire on the one hand to reluctant acquiescence on
the other. The issue of consent should not be left to the jury
without some further direction. What the direction should be
will depend on the circumstances of each case
Commented [sq139]: Refer to above on defences
Then again, consent is void if the victim was under a permanent Commented [sq140]: The accused got a girl drunk on
liquor for the purpose of exciting her and having sexual
or temporal incapacity resulting from intoxication or any other intercourse with her. She became so drunk as to be
insensible.
cause, as to render her incapable of understanding the nature or HELD: It was held that the accused had committed rape
since at the time of the intercourse the girl was not in a
consequences of the sexual intercourse to which she has position to give consent
Commented [sq141]: The victim, a married woman, who
purportedly consented – Section 14(a). R v CAMPLIN was feeling tipsy after a few drinks, was asleep with her
husband and two kids. The accused came in through the
It is also rape if the accused knows the victim is asleep and doorway, which was unlocked, at about 4 am and
proceeded to have sex with the woman, she being asleep at
the time. When she awoke, she at first thought the accused
therefore does not resist because she is, in that condition, was her husband. But upon hearing him speak, she looked
around, and seeing her husband by her side, she
incapable of resisting. R v YOUNG. It is immaterial that the immediately flung the prisoner off her, and called out to her
husband.
accused applied force as was held in Olugboja. Whereupon the accused ran away but was apprehended
before he could make his escape certain. HELD: It was held
that if a man has or attempts to have a connection with a
woman while she is asleep, it is no defence that she did not
resist

132 | P a g e
A person who has given her consent may also revoke it – Section
Commented [sq142]: A person may revoke consent
42(g). Therefore, though sexual intercourse is complete upon which that party has given to the use of force against that
person, and the consent when so revoked shall not have
penetration, yet it is a continuing act ending only in withdrawal effect or justify force

– therefore, the accused is guilty of rape if he remains in the

woman after she has stopped consenting. R v KAITAMAKI
The appellant broke into and entered a house and had sexual
intercourse with a young woman twice. He claimed that as to the
second sexual bout, it was after he penetrated the woman that
he became aware that she was not consenting. However, he
proceeded with the intercourse anyway. It was argued by the
defence that by the criminal law of New Zealand, if a man
penetrates a woman with her consent, he cannot be guilty of
rape by continuing the intercourse after a stage when he realizes
that she is no longer consenting. HELD: It was held that sexual
intercourse is a continuing act which only ends in withdrawal.
Thus, the conviction of the appellant was well founded.
MARITAL RAPE
On the issue of marital rape, in the early Common Law, a
husband was held not to be guilty of rape because there os
mutual matrimonial consent and contract and the wife cannot
retract in such a contract2. This view was deemed to be highly
chauvinistic. However, with time, this view was reversed and
certain exceptions were given in R v Clarence. In that case, the

2
Baron Pollock in R v Clarence: “The husband’s connexion with his wife is not only lawful, but it is in accordance
with the ordinary condition of married life. It is done in pursuance of the marital contract and of the status
which was created by marriage, and the wife as to the connexion itself is in a different position from any other
woman, for she has no right or power to refuse here consent”

133 | P a g e
accused was charged with the rape of his wife at a time when a
separation order, made by justices on the ground of persistent
cruelty, was in force. The order contained a clause that the wife
was no longer obliged to cohabit with her husband. The order
amounted to a judicial separation, which could only be
discharged if the wife committed adultery or if she voluntarily
resumed cohabitation with her husband. In this case, the wife
had not resumed cohabitation. It was held that in the
circumstances her consent to marital intercourse was revoked
and the husband was not entitled to have intercourse with her
without her consent.
The Common Law courts once again revisited the issue in R v
MILLAR. In that case, the wife left the husband and filed a
petition for divorce on the ground of adultery. Subsequently, he
met his wife and had intercourse with her against her will. The
defence contended that since the woman was the prisoner’s
wife, he could not be guilty of rape since the consent had not
been retracted by a court. Lynskey J. held that in the
circumstances the man was not guilty of rape since a petition of
divorce brought before a court is not the same as a court order
of separation.
Previously under the Ghana law, section 42(g)3 followed the
Common Law reasoning that a man cannot be guilty of marital
rape unless the marriage has been annulled. However, after our
3
A person may revoke any consent which he has given to the use of force against him, and his consent when so
revoked shall have no effect for justifying force; save that the consent given by a husband or wife at marriage,
for the purposes of marriage, cannot be revoked until the parties are divorced or separated by a judgment or
decree of a competent court.

134 | P a g e
law reform, this view has been dropped and provides by Section
42(g) that a man can nevertheless be guilty of raping his wife
whilst the marriage is subsisting and the woman refuses consent.
Commented [sq143]: a person may revoke a consent
which that party has given to the use of force against that
person, and the consent when so revoked shall not have
effect or justify force.

DEFILEMENT
The offence of defilement is known in some jurisdictions as
statutory rape. The offence of defilement is governed by section
101 of Act 29. Section 101(1) defines defilement as the natural
or unnatural carnal knowledge of a child under sixteen years.
Commented [sq144]: A person who naturally or
Section 101(2) explains that the offence is committed even if the unnaturally carnally knows a child under sixteen years of
age, whether
child consented to the sexual act. with or without the consent of the child, commits a criminal
offence and is liable on summary conviction
The aim of the legislature is to discourage sexual intercourse, be to a term of imprisonment of not less that seven years and
not more than twenty-five years.

it natural or unnatural, with children under the age of sixteen

years even if they give their consent to the act. The offence is
also gender neutral by the use of a child. However, there seem
to be a problem with the retention of the formulation of carnal
or unnatural carnal knowledge a woman does not have the
ability to carnally know a person whether naturally or
unnaturally since the female organ cannot penetrate an orifice.
Commented [sq145]: a married woman had sex with
R v MASON. about six boys aged between 14 and 16 years on various
occasions. She was indicted for indecent assault, but the
On a charge of defilement, the most important consideration is prosecution failed because there was no evidence of her
having used force on them, or even that she made a contact
the age of the victim – he or she must be under sixteen years of with their person. Since they had done the penetration with
her consent, no offence had been committed

age – so if the victim is sixteen years or more, the accused cannot

be charged with defilement. Therefore, if the victim, being
female, is sixteen years or more, the proper charge to prefer

135 | P a g e
against the accused is rape, if the sexual connexion was without
her consent. On the other hand, if the victim, being male, is
sixteen years or more, and the accused is male, the proper
charge to prefer against the accused is unnatural carnal
knowledge simpliciter.
Defilement arises in one of two circumstances, namely:
a) where the act is done without the consent of the
victim in circumstances which will amount to rape if
the victim were sixteen years or more, and
b) where the act is done with the consent of the victim.
As such, consent is irrelevant in defilement. All that the
prosecution need to prove is that the victim was under sixteen
years when the accused carnally knew him or her or unnaturally
carnally knew him or her. YEBOAH v THE REPUBLIC, COP v SEM
There has been an issue of whether defilement is a strict liability
offence and whether the accused can plead mistake or ignorance
of fact as to the age of the victim. It seem so because section
29(1) provides that, a person shall not be punished for an act
which, by reason of ignorance or mistake of fact in good faith,
that person believes to be lawful.
CARNAL KNOWLEDGE OF AN IDIOT OR IMBECILE OR MENTAL
PATIENT
The law seeks to protect persons of subnormal intelligence from
sexual acts whether or not they consent to such acts. A mentally
136 | P a g e
Commented [sq146]: The accused was alleged to have
had sexual intercourse with a nine year old child. He denied
ever having sexual intercourse with the child. However, it
was found as a fact that he did and he contended that she
did not oppose his having sex with her neither did she
complain to anybody. HELD: even though the victim failed
to report or complain to her mother or anyone until about a
week later, it merely showed perhaps that she was a willing
victim; but her consent was no defense in such a charge
Commented [sq147]: The appellant, who was charged
with defilement of a female between ten and fourteen
years of age, was convicted of the lesser offence of indecent
assault. The complainant, a maidservant aged twelve years,
had delayed three weeks in reporting the incident. Medical
evidence did not support her account of attempted sexual
intercourse three weeks previously but showed that it
“might have been attempted on her not more than five days
before the examination.” The appellant, who had denied
the charge, was induced to sign a confession prepared by
the complainant’s employer because, “he said if I wrote
that statement he would remove the case from the police.”
Three witnesses corroborated the appellant’s version of the
making of the confession. Held: (1) having regard to the
three-week delay by the complainant in reporting the
alleged incident and to the medical evidence, the
prosecution did not establish their case with the necessary
certainty.
handicapped person is deemed a minor during the continuance
of that condition – therefore, he/she cannot give valid consent
to sexual acts by section 14(a).
By sec 102, a person commits an offence if he/she has a sexual
connection with an idiot, imbecile or lunatic – who is in or under
the care of a mental hospital (what if the person is not in the
hospital).
The mens rea requirement is important
Commented [sq148]: A person who has carnal
knowledge or has unnatural carnal knowledge of an idiot,
imbecile or a
mental patient in or under the care of a mental hospital
whether with or without the consent of that other person,
in circumstance which prove that the accused knew at the
time of the commission of the criminal offence that the
other person has a mental incapacity commits a criminal
offence and is liable on summary conviction to a term of
imprisonment of not less than five or and not more than
twenty-five years.

- it must be shown that the accused knew at the time

of sexual intercourse that the victim had a mental
incapacity
The age of the victim is immaterial. R v PRESSY
Commented [sq149]: The accused had sexual intercourse
with a thirty-seven year old female who was an apparent
idiot. It was held that the accused was guilty.

UNNATURAL CARNAL KNOWLEDGE

At common law, the issue of sodomy was treated as a taboo
subject. In line with this notions under English law, Ghanaian law
takes the view that heterosexual life is the normal thing for
human beings. Therefore, any other formula is cast by the law as
unnatural – hence section 104(2) provides that: Unnatural carnal
knowledge is sexual intercourse with a person in an unnatural
manner or, with an animal.
Kissi provides that the definition under section 104 suggests that
sodomy is unnatural

137 | P a g e
That is, sex per anum is unnatural – or what is variously termed,
coitus in anum – hitch to the wrong side of the post – sink the
brown – or usher of the back door.
Then also, bestiality i.e. carnally knowing an animal or permitting
an animal to carnally know one is unnatural, hence criminal.
A person is guilty of unnatural carnal knowledge in one of three
ways, namely
i. having unnatural carnal knowledge with a person of
sixteen years or above without his or her consent –
because of the lack of consent, this instance is
equated to rape – hence it is a first degree felony
and the accused is liable to suffer imprisonment of
not less than five years and not more than twenty-
five years – 104(1)(a);
ii. Or, having unnatural carnal knowledge with a
person of sixteen years or more with his or her
consent – this instance is a misdemeanor because of
the existence of the other person’s consent –
section 104(1)(b);
iii. Or, having sexual intercourse with an animal – this
instance is a misdemeanor – sec 104(1)(c).
However, lesbianism is not a crime because it does not involve
penile penetration – as we have said, a woman does not have
the natural ability to penetrate an orifice with her genitals.

138 | P a g e
INDECENT ASSUALT
Indecent assault is a misdemeanor punishable by a term of
imprisonment of not less than six months – Section
103(1).Indecent assault involves all acts of sexual assault not
involving penile penetration, whether natural or unnatural.
These include: oral sex?, digital sex, facial, pearl necklace
(ejaculating semen on or near the neck), teabagging (placing
one’s testicles in the mouth or on or around the face of another
in a repeated in-out-in-out motion), breast fondling, buttocks
fondling e.t.c.
A person may be guilty of indecent assault in one of two
situations, namely:
- forcibly making a sexual bodily contact with the
other person in a manner that does not amount to
carnal or unnatural carnal knowledge without the
person’s consent – this situation of culpability
stresses the element of force – in most cases, the
absence of consent suggests a forcible touching –
sec103(2)(a)
- Or, sexually violating the body of the other person
in a manner not amounting to carnal or unnatural
carnal knowledge without the person’s consent –
sec 103(2)(b)
ALAWUSA v OSUDOTE: NB: this case was decided under the old
regime that set store that a man could not be charged for raping
139 | P a g e
Commented [sq150]: A person who indecently assaults
another person commits a misdemeanour and is liable on
conviction to a term of imprisonment of not less than six
months.
Commented [sq151]: A person commits the criminal
offence of indecent assault if, without the consent of the
other
person that person
(a) forcibly makes a sexual bodily contact with the other
person in a manner not amounting to carnal knowledge or
unnatural carnal knowledge
Commented [sq152]: A person commits the criminal
offence of indecent assault if, without the consent of the
other
person that person
(b) sexually violates the body of the other person in a
manner not amounting to carnal knowledge or unnatural
carnal knowledge
Commented [sq153]: the Appellant forcibly shaved the
pubic hair of his wife. It was held that since a husband could
not be guilty of rape upon his wife, he could not be guilty of
indecent assault upon her either. This was because acts that
would ordinarily be considered indecent when occurring
between a man and any other woman could not be so
regarded, as between a man and his wife
his wife – yet we have seen that this situation has now changed
and it is possible for a man to be convicted of raping his wife –
so the ratio in Alawusa may not hold sway today
Commented [sq154]: the respondent at all material
R v ROGERS, R v SARGEANT times lived with his wife and daughter. On two occasions, he
put his arm round his daughter’s shoulders and led her
INCEST upstairs. She made no objection or resistance, and no force
or compulsion was used. He then exposed his person to the
child and told her to masturbate him. On both occasions the
Incest is sexual intercourse between close family members. It is child obeyed him although she did not wish to do so. On
both occasions he was alone in the house with the child.
mostly a victimless act and goes unreported. In Ghana, the law HELD: It was held that it is no indecent assault if a person
merely invites another to touch him.
does not prohibit sexual relations between persons who are Commented [sq155]: the accused touched another man
and caused the man to masturbate against his will. The
related only by affinity, and but by blood ties, thus, the law does court in this instance held that to be an assault of an
indecent nature.
not prohibit sexual relations between fathers and step-
daughters or between mothers and step-sons or between step-
siblings.
Incest is governed by Section 105. By section 105,
– it is incest, if being a male of not less than
sixteen years, you have carnal knowledge of
your granddaughter, daughter, sister, half-
sister, mother or grandmother
– It is incest if, being a male of not less than
sixteen years of age, you permit your
grandmother, mother, sister, half-sister or
daughter to have carnal knowledge of you
– It is also incest if, being a female of not less
than sixteen years, you have carnal knowledge
of your grandson, son, brother, half-brother,
father or grandfather

140 | P a g e
 – Then, it is incest if, being a female of not less
than sixteen years, you permit your
grandfather, father, brother, half-brother or
son to have carnal knowledge of you
It is very important to note that for an accused to be guilty of the
offence of incest, he or she must know that the other party to
the sexual connexion was within the prohibited degrees of
consanguinity – if the prosecution does not prove that the
accused knew this as a fact, he or she is entitled to an acquittal.
R v CARMICHEAL
It is immaterial that the relationship between the accused and
the other person is not traced through lawful wedlock – even in
this case, the accused will still be culpable. Section 105(5)

PROCURATION
This offence is ordinarily referred to as pimping. A pimp is a
person who finds and manages clients for prostitutes and
engages them in prostitution in order to profit from their
earnings. The criminal law seeks to prohibit pimping under the
offence of procuration.
It is governed by Section 107.
R v. de Munck :. R v DRURY
The accused cannot be convicted of the offence of procuration
on the evidence of only one witness – there must be
corroboration in a material particular of that witness’ testimony
Commented [sq156]: Read from the Act. It is so long to
fit
Commented [sq157]: the accused took her daughter out
and accost men at street corners. She would take them
home and leave the, with her daughter for a while . She
would then ask for money from them. She held tp have
encouraged the prostitution of her daughter. The court
found that the acts of lewdness had taken place. Her
conviction was proper
Commented [sq158]: the appellant watched as his friend
gave his 14 year old babysitter a drink and to have
intercourse with her. The court held that he had custody of
the girl at the time: and his standing by whilst his friend
seduced the girl without any interference from him
constituted encouragement.

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by evidence that implicates the accused – Section 107(2).
Corroboration consists of evidence from which a reasonable
inference can be drawn which confirms in a material particular
the evidence to be corroborated and connects the accused with
the crime – Section 7(1) of the Evidence Act, 1975 (NRCD 323).

Section 108 deals with Seduction or Prostitution of a child under

sixteen.

NON-SEXUAL AND NON-FATAL OFFENCES AGAINST THE PERSON

ASSAULT
Assault in criminal law is wider than in civil law, where assault is
merely descriptive of psychological discomfort by an
apprehension of unpermitted contact. Criminal assault includes
assault simpliciter, battery, and unlawful detention.
Act 29, assault may be one of three things:
 assault and battery
 assault without actual battery; and
 imprisonment – false imprisonment – SECTION 85(1)
Assault is lawful if it is justified on any of the grounds in Chapter
1 of Part II of the Act – Section 85(2)
The mens rea for assault is intentional conduct in the case of
assault and battery, it must be with the intention of causing
harm, pain, or fear, or annoyance to the person assaulted or

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exciting him to anger – sec 86(1). In the case of assault without
actual battery, it must be intentionally putting the person
assaulted in fear of an instant assault and battery – sec 87(1). In
the case of imprisonment, it must be with the intention of
detaining the person assaulted in a particular place –sec 88(1).
Since the actus reus is unpermitted contact, proof of consent
may undermine the actus reus – the reason is that if the contact
is permitted then more likely than not, nothing wrong has been
done.
Assault and Battery
To constitute assault and battery it must be established by the
prosecution that without the consent of the other person, and
with the intention of causing harm, pain, or fear or annoyance to
the other person or exciting him to anger, the accused forcibly
touched that other person or caused any person, animal, or
Commented [sq159]: A person makes an assault and
matter to touch that other person – Section 86(1). The contact battery on another person, if without the other person’s
consent,
may be direct or indirect through an involuntary agent. and with the intention of causing harm, pain, or fear, or
annoyance to the other person, or of exciting the
DPP v K (A Minor) other person to anger, that person forcibly touches the
other person.

In the course of a chemistry class, One boy went to the lavatory

to wash some acid off his hand. He took with him, very foolishly,
a boiling tube of concentrated acid. He wanted to test the
reaction of the acid with toilet paper, but then he heard
footsteps outside. In a panic, he poured the acid, or what
remained of it, into the upturned nozzle of the hand drying
machine in the lavatory and went back to the class. Another boy

143 | P a g e
went to the lavatory to wash his hands. He turned on the dryer
and the acid was injected into his face, leaving him permanently
scarred. HELD: It was held that it was clear that the first boy
knew full well that he had created a dangerous situation and the
inescapable inference was that he decided to take the risk of
someone using the machine before he could return and render
it harmless or that he gave no thought to that risk
The contact must be intentional and this intentional direct
contact or indirect contact through an involuntary agent must be
with the intention of causing harm, fear, pain or annoyance or
exciting to anger. Therefore, a forcible touch alone, without
proof of intention on the part of the accused to cause harm, pain
or fear or annoyance to the victim or exciting the victim to anger,
cannot support a charge of assault and battery.
COMFORT v THE REPUBLIC
The complainants attended a spiritualist meeting which the first
appellant had conducted at her house to exorcise evil spirits and
that in the course of the meeting the first appellant, who is
acknowledged by the group as a prophetess and was therefore
the chief actress in the drama, had hit the head of the first
complainant several times with a stick in her effort to exorcise
Abena Frema of her evil spirit. The second complainant, went
and held the stick and the second appellant hit him on the chest
and the first appellant hit him on the head. The appellant argued
that she was in a trance at the time when she hit her and as such,
had no knowledge of what was going on. HELD: The court held
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that the victim consented to his beating up thus the offence of
assault and battery is not made up. Since she did not raise an
objection to that which she voluntarily consented to then the
offence of assault and battery is not made up.
The consent of the victim to an assault will inure to the benefit
of the perpetrator if it is transient and trifling. The consent of the
victim to an assault will inure to the benefit of the perpetrator if
it is transient and trifling. Section 42(b), R v Donovan.
However, it is a sufficient defense to a charge of assault that the
accused and the victim were engaged in a game or sport that is
authorized by law and is conducted in a way not to pose any
serious danger to life. Thus, if the game or sport is dangerous to
life there can be no defense to any act of assault involving
grievous harm on the grounds of consent. R v Coney
The general rule set out in sec 86(1) is qualified by or subject to
the provisions in section 86(2). Therefore, where consent has
been obtained by deceit, an intention to assault will be inferred,
to render the act a criminal assault. Section 86(2)(a).
A person who is insensible or unconscious or lacks the capacity
to give consent will be deemed to be a victim of assault, in the
circumstance. Section 86(2)(b).
The slightest touch suffices for an assault and battery, if the
requisite intention is established. Section 86(2)(c).
A person is touched if her body is touched, or if any clothes or
other thing in contact with her body or with the clothes upon her
145 | P a g e
Commented [sq160]: a wound or grievous harm cannot
be justified on the grounds of consent, unless the consent is
given, and the wound or harm is caused, in good faith, for
the purposes or in the course of medical or surgical
treatment;
Commented [sq161]: the girl consented to being beaten
by the defendant in order to satisfy his sexual passion. It
was held that it is an unlawful act to beat another person
with such degree of violence that the infliction of bodily
harm is a probable consequence, and when it is proved,
consent is immaterial.
Commented [sq162]: The accused were seen at the
venue of a prize fight. It was established that some persons
in the crowd were encouraging the fight. However, the
three accused were not seen to do anything and there was
no evidence how they got there or how long they stayed.
Held: one can be held to have wilffuly encouraged the
commission of a crime if he was voluntarily and purposely
present at and witnessing the commission of the crime and
offers no opposition thereto though he might be reasonably
expected to prevent it and had the power so to do or at
least express dissent. The presence of the accused at the
fight amounted to abetting despite the fact that they did
not act or utter a word to that effect. Non accidental
presence however is not conclusive of abetting.
body are or is touched, although her body is not actually
touched. Section 86(2)(d). Therefore, the mere fact of causing
damage to the complainant’s skirt or blouse or trousers or shirt
is sufficient to support a charge of assault and battery. The
rationale is that clothes are so intimately connected with the
wearer that offensive conduct against clothes is likely to be taken
as an affront to the wearer.
With respect to the question of intent, a person will be held
liable not only for intentionally causing harm, pain or fear, or
annoyance by the force or manner of the touch itself, but also
for forcibly exposing the victim or causing the victim to be
exposed, to harm, pain, fear, or annoyance from any other
cause. Section 86(2)(e).
Assault without Actual Battery
A person commits an assault without actual battery on another
person, if by an act apparently done in commencement of an
assault and battery, he intentionally puts the other person in fear
of an instant assault and battery – Section 87(1). The essence of
Commented [sq163]: a quarrel ensued between the
the offence is that by his act or conduct the accused person appellant and his neighbors over a hedge bounding their
respective lands. The appellant was a medical doctor. At a
intentionally puts the other person in present fear of assault and point in the quarrel, the neighbor’s wife, according to the
prosecution, said to the appellant that certain nurses had
battery. REPUBLIC v BRUCE-KONUAH. said that he had been misbehaving at the hospital. This
apparently was too much for the appellant to bear because
upon hearing it, he jumped over to the neighbor’s side of
From Section 87(2)(b), a person can make an assault without the hedge and chased the neighbor’s wife. The neighbor’s
wife alleged that the appellant slapped her. This was denied
actual battery by moving, or causing any person, animal or by the appellant. HELD: On appeal, it was held that by Act
29, s. 85, "assault" covered assault with battery and assault
matter to move, towards another person, although he, or such without battery. On his own showing the appellant was
guilty of assault without battery and his conduct in rushing
person, animal, or matter, is not yet within such a distance from at the complainant with apparent intention to cause her
harm and intending to put her in fear of danger, fell
squarely within the illustration of assault in Act 29, s. 87
the other person as that an assault and battery can be made. (2)(b)

146 | P a g e
ILLUSTRATION
A. at a distance of 10 yards from B. runs at B., with the aim of
apparent intention of striking him, and intending to put B. in fear
of an immediate beating. Here A. is guilty of an assault, although
he never comes within reach of B.
In a case of assault without actual battery, the apprehension of
an instant assault and battery must be reasonable. It must be
apparent to the other person that the accused has the ability or
means to carry out the assault and battery. From Section
Commented [sq164]: ILLUSTRATION
87(2)(a), it is not necessary that an actual assault and battery if A. points a gun at B. with intent to put B in fear of being
shot instantly, A. is guilty of assault without actual battery
should be intended, or that the instruments or means by which even though to A’s knowledge the gun is unloaded or that
he in fact has no intention to shoot at B.
the assault and battery is apparently intended to be made should
be, or should by the person using them be believed to be, of such
a kind or in such a condition as that an assault and battery could
be made by means of them.
Also, an assault without actual battery can be made on a person
although he can avoid actual assault and battery by retreating,
or by consenting to do, or to abstain from doing, an act – Section
87(2)(c). This means that if a person does any act in
commencement of an assault and battery on another person,
the fact that the person utters words indicating that he can avoid
actual battery does not unmake the assault.
Imprisonment
According to Section 88(1), a person imprisons another person
if, intentionally and without the other person’s consent, he

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detains the other person in a particular place, of whatever extent
or character and whether enclosed or not, or compels him to
move or be carried in any particular direction.
This is subject to the circumstances enumerated in section 88(2).
Cruel Customs or Practices in Relation to Bereaved Spouses
Section 88A is intended to halt cruel customs like “kunayo”.
Thus, any such practice which is cruel in nature will attract
criminal sanctions if it amounts to assault and battery, assault
without actual battery or imprisonment.
CAUSING HARM TO A PERSON
CAUSING HARM
This offence is governed by Section 69 of Act 29.
Section 1 defines harm to be a bodily hurt, disease, or disorder
whether permanent or temporary. In this respect, the skin of the
victim must be broken but this does not need to amount to
grievous bodily harm. Also, inflicting a disease or disorder on the
victim will fix the accused with liability.
R v Clarence.
Clarence, who had communicated venereal disease to his wife,
was indicted under section 20 of the English Offences Against the
Person Act. HELD: It was held that he was not guilty because an
infliction under the section could only be by way of an assault.
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Commented [sq165]: The application of subsection (1) is
subject to the following provision, namely, that the
detention
or compulsion may be constituted, within the meaning of
this section,
(a) by force or by a physical obstruction to a person’s
escape, or
(b) by creating the belief that the other person cannot
depart from a place, or refuse to move or
be carried in a particular direction, without overcoming
force or incurring danger or harm,
pain or annoyance, or
(c) by creating the belief that the other person is under legal
arrest, or
(d) by creating the belief to the other person of immediate
imprisonment if the other person does
not consent to do, or to abstain from doing, an act.
Commented [sq166]: (1) A person who compels a
bereaved spouse or a relative of the spouse to undergo a
custom or
practice that is cruel in nature commits a misdemeanour.
(2) For the purposes of subsection (1), a custom or practice
is cruel in nature if it constitutes an assault
within the meaning of sections 85, 86, 87 and 88.25(25)
Commented [sq167]: A person who intentionally and
unlawfully causes harm to any other person commits a
second degree
felony.
Stephen J opined that: “The words appear to me to mean the
direct causing of some grievous injury to the body itself…I think
the words imply an assault and battery of which a wound or
grievous bodily harm is the manifest immediate and obvious
result.” Here there was no assault, because an assault
presupposes lack of consent, and the wife had consented.
In the case of psychological harm, it appears from the definition
of harm in sec 1 that mental distress alone may not be sufficient
unless accompanied by a mental disorder. On this point section
81(b) is even more instructive. So, under our law, psychological
harm will not do.
Whatever be the case, the harm must have been caused
intentionally and unlawfully. This means that all the prosecution
need to prove is to adduce evidence to bring the act that caused
harm within any of the provisions of section 11, which deals with
intention and also establish that the act was done without any
justification recognized under our criminal law. SECTION 76.
BROBBEY v THE REPUBLIC.
FEMALE GENITAL MUTILATION (FGM)
Female genital mutilation is governed by section 69A. This
provision was amended in 2007 under Act 741. The purpose of
the amendment was to change references to female
circumcision to that of female genital mutilation to reflect the
actual nature of the offence, and to widen the scope of
149 | P a g e
Commented [sq168]: it provides that:
disease or disorder which a person suffers as the inward
effect of grief, terror, or any other emotion is not harm
caused by another person, although such grief, terror, or
emotion has been caused by that other person, whether
with intent to cause harm otherwise.
Commented [sq169]: Harm is unlawful which is
intentionally or negligently caused without any of the
justifications.
Commented [sq170]: Four policemen went to the
complainant’s store and accused him of selling pall mall
cigarettes above the controlled price. Even though he
denied the alleged offence one of them held him and asked
him to accompany him to the police station and when he
resisted, the other three joined the first in beating him up,
tearing his knickers and pants and stealing an amount of
money he had on him. When his wife came to his rescue,
she was bitten by the first policeman. The trial magistrate
found that, (i) the force used by the police was excessive
and (ii) they tore the complainant’s knickers and stole his
money. He therefore sentenced each of them to one
month's prison term with hard labor. Held: Twumasi J., (as
he then was) observed that an essential element for the
constitution of the crime of causing harm contrary to
section 69 is that the harm or damage must not only be
intentional but also unlawful. Mere harm or damage
without more is insufficient.
Twumasi J., continued: To say the least, the learned
magistrate's conclusions bordered on the perverse.
Speaking for myself, I am unable to infer from the evidence
that the appellants employed excessive force to overcome
what I consider as unwarranted resistance offered by the
[complainant] and his wife. The wife's intervention was an
obtrusive venture calculated to interfere with the appellants
in the execution of their lawful duty to arrest the
[complainant].
Commented [sq171]: Read from the Act.
responsibility in relation to the offence. The crux of the offence
involves excising, infibulating or mutilating the whole or any part
of the labia minora, labia majora or the clitoris.
The labia majora is the outer thick two folds of skin that surround
the clitoris, the opening of the urethra, and the opening of the
vagina – after puberty, it is usually covered with pubic hair. The
labia minora is the inner small folds of skin that lie immediately
inside the labia majora and join at the front to form the clitoral
hood.
Under Act 29, to “excise” is to remove the prepuce, the clitoris
and all or part of the labia minora – Section 66A(3). The prepuce
is the skin or foreskin which covers the tip of the clitoris – it is
also known as the clitoral hood. The clitoris is a sensitive erectile
female sex organ at the front junction of the labia minora, lying
above the opening of the urethra and the vagina.
To “infibulate” includes excision and the additional removal of
the external genitalia and stitching or narrowing of the vaginal
opening – Section 69A(3). To “mutilate” includes any other
injury caused to the female genital organ for cultural or other
non-therapeutic reasons – Section 69A(3).
The offence of FGM may be committed in one of three ways
 carrying out FGM
 participating in FGM
 being concerned with FGM

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In the first situation, a person who carries out FGM by excising,
infibulating or mutilating the whole or any part of the labia
minora, labia majora or the clitoris of another person is liable to
imprisonment of not less than five years and not more than ten
years – Section 69A(1).
In the second situation, a person who participates in a ritual or
customary activity that subjects a person to FGM also incurs the
same liability – Section 69(A)(2).
In the third situation, a person who is concerned with a ritual or
a customary activity that subjects a person to FGM also incurs
the same liability – Section 69(A)(2).
 to send to
 take to
 consent to the taking to or receive at any place
any person for the performance of FGM
Or
 to enter into an agreement (oral or written) to
subject any of the parties to the agreement or any
other person to FGM
 sec 69A(3)

CAUSING HARM WITH AN OFFENSIVE WEAPON

According to Section 70, a person who intentionally and
unlawfully causes harm to any other person by the use of an
151 | P a g e
offensive weapon commits a first degree felony. Proof that the
weapon used is offensive is essential because it is the only
distinguishing feature between causing harm simpliciter under
sec 69 and that of causing harm with an offensive weapon under
sec 70.
There is no definition of offensive weapon. The offensiveness of
the weapon in question depends on the circumstances of each
case. One test for determining whether an object is offensive is
whether it may be used for an aggressive purpose. Yaw Pramang
v The Republic, Darko v The Republic
CAUSING HARM BY OMMISSION
A person is only culpable for harm caused by omission if he is
under a duty to act. Thus, a person causes harm by omission if
he fails to perform a duty for preventing harm – Section 77.
By section 78, a duty to prevent harm to another person may
arise in any of the following situations:
Commented [sq172]: the complainant was attacked by
the accused when he was on the way to church with a sharp
cutlass. He sustained serious injuries. The court held: there
was no statutory definition for an offensive weapon
“material thing designed or used or usable as an instrument
for inflicting bodily harm.
Commented [sq173]: the accused attempted to kill
another only to be overcome when his weapon
disappointed him. He was charged with attempting to cause
unlawful harm contrary to section 18(1) and 70 of act 29.
HELD: The court held that the right provision is section 46
since there was a distinction between causing harm
unlawful and murder. The former had with it the mens rea
of killing whereas the latter the accused must aim at causing
harm only.
Commented [sq174]: A person causes harm by an

 if there exists a duty to supply the other person with

omission, within the meaning of this Act, if harm is caused
by that
person’s omission to perform a duty for preventing harm as
the necessaries of health and life – sec 78(a), mentioned in section 78, and not in any other case.

(necessaries of health and life include proper food,

clothing, shelter, warmth, medical or surgical
treatment, and any other matter which is
reasonably necessary for the preservation of the
health and life of a person sec 79(8))
 by imposition of law, or
 by voluntary assumption, or

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  under an agreement or undertaking to do an act for
the purpose of averting harm to a person, or
 by virtue of a position (office or employment), or
 by a lawful order of a court, or
 by a lawful order of a person – sec 78(b)
Commented [sq175]: Section 79 when a duty to provide
Sec 79 elaborates on the incidents of the duty to give access to the necessaries of life
a. When the spouse is under the control of the other
the necessaries of health and life. R v Senior spouse and a duty exist
b. A child who is not of age and unde rhte control of the
By Section 81(a), a person cannot be held liable for omitting to other parent
c. A guardian in relation to a child in his control.

supply the necessaries of health and life to another, unless it is
proved that by reason of age or physical or mental state, or by
reason of control by the accused person, the other person could
Commented [sq176]: he appellant who was a member of
a religious sect left the child untended for when the child
was sick. The court held that the conduct amounted to
willful neglect and therefore the father’s conviction of
manslaughter was upheld.

not have prevented the harm through reasonable exertion. See

section 80 for explanations with respect to office.
NEGLIGENTLY CAUSING HARM
By Section 72, causing harm through negligence is a
misdemeanor. All the prosecution need to establish is that
although the accused did not intend to cause harm, yet he
caused the harm by a voluntary act, done without the skill and
care that are reasonably necessary under the circumstances and
that the accused did so cause the harm without any justification
recognized under our criminal law – See Sections 12 and 76. The
degree of negligence here need not amount to a reckless
disregard for human life.

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See sec 73 for negligently causing harm while operating or
engaged in a dangerous thing. OKUTU v THE REPUBLIC, R v
NOAKES,
By Section 82, Where a person acts in good faith in respect of
the provision of medical or surgical treatment, and intentionally
causes harm to the person under treatment, which is due to a
lack of the exercise of reasonable skill and care, or the person
knows or ought to have known that his action was plainly
improper, he will be deemed to have negligently but not
intentionally caused the harm – the effect is to reduce the
offence from a second degree felony to a misdemeanor.
So, from the illustration, if for instance, a surgeon, through gross
negligence, amputates a limb where the necessity to amputate
did not arise, the surgeon is not liable to be convicted of having
intentionally and unlawfully caused harm, but is liable to be
convicted of having negligently and unlawfully caused harm.
In all cases of causing harm, the accused is still liable even if the
complainant contributed to the harm by his negligence, act,
omission, or trespass – Section 81(d).
THREAT OF HARM
By Section 74, to be culpable for threat of harm, it must be
established that the accused threatened the complainant with
unlawful harm with the intention to put the victim in fear of an
unlawful harm. Threat of harm is a misdemeanor. BEHOME v
THE REPUBLIC
154 | P a g e
Commented [sq177]: A person who
(a) being solely or partly in charge of a steam-engine,
machinery, ship, boat, or dangerous thing or matter of any
kind, or
(b) having undertaken or being engaged in medical or
surgical treatment of a person, or
(c) having undertaken or being engaged in the dispensing
supplying, selling, administering, or
giving away of a medicine or a poisonous or dangerous
matter, negligently endangers the life of any other person,
commits a misdemeanour.
Commented [sq178]: the accused left his car parked on
the road with no warmimg lights. The complainant drove
into it and was injured, held he was guilty for causing harm
by negligently leaving his vehicle in a dangerous position.
Commented [sq179]: the accused a chemist filled a
bottle with the wrong substance that is poison and in the
alternative bottle meant for the substance as the harmless
one. The patient died from taking the medicine. Held that it
was clear negligence.
Commented [sq180]: the accused caught the wife in
harmony with another man and seized them. He assaulted
them and threaten to kill the man. He was convicted for
conspiracy to commit unlawful entry , robbery and threat of
death contrary to section 75. The court in relation to the
conspiracy. held: where one was charged with the threat of
harm the threat must be harm and nothing else.
THREAT OF DEATH
To be culpable for threat of death, it must be established that
the accused threatened the complainant with death, with the
intention of putting him in fear of death – Section 75. By Section
17(2), in respect of threat of harm and of threat of death, an
expression referring to a threat includes an offer to abstain from
doing, or to procure any other person to abstain from doing,
anything.
It is immaterial if the threat is conveyed by words, or by writing,
or in any other manner. – Section 17(4). It is immaterial whether
the threat is conveyed directly, or through another person, or in
any other manner. Section 17(4). It is also immaterial whether
the content of the threat will be executed by the person doing
the threatening against or in relation to the person threatened,
or by, or against, or in relation to any other person – Section
17(3).
EXPOSING CHILD TO DANGER
By Section 71(1)(a), It is an offence to unlawfully expose a child
under twelve years to danger, or unlawfully abandon him or her.
By Section 71(1)(b), It is also an offence to unlawfully expose a
physically or mentally handicapped child to danger or to
abandon a physically or mentally handicapped child in a manner
that is likely to cause harm to him/her.
Section 71(2) defines a child as one below 18 years of age.

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MAHAMA HAUSA v THE REPUBLIC
The accused the father of the child was charged with taking care
of the child by the mom. He left him at the precincts of the court
where he worked without entrusting him to the care of anybody
and the child strayed off and was knocked down by a car. He was
charged and convicted for unlawful exposure contrary to section
71. held: dismissing the appeal: the gravamen of the offence of
unlawful exposure under section 71 of Act 29 was the
unreasonable behaviour or conduct of an accused in failing to
take care of a child under the circumstances in which he found it
thereby opening it to the chance of harm. Although the nature
of the offence was criminal, the duty imposed was a civil one.
The test applicable was civil, namely, the behaviour of the
person who although innocent of ill intention, had failed to act
up to the standard set by law which was usually that of a
reasonable man. In the instant case, the behaviour of the
accused was unreasonable because he negligently left the child
without proper care while on his errand and he was caught by
section 71 of Act 29
KIDNAPPING
By Section 89, a person who kidnaps another person commits a
second degree felony.
By section 90, the offence of kidnapping is committed in any of
the following circumstances:

156 | P a g e
  unlawfully imprisoning a person and taking him out
of the jurisdiction of the court without the person’s
consent – jurisdiction means a law district, in this
instance it appears to refer to taking the person out
of the country. R v D
 unlawfully imprisoning a person within the
jurisdiction in such a manner that prevents him from
applying to a court for his release or from
discovering to any other person the place of the
imprisonment, or in a manner that prevents a
person entitled to have access from discovering the
place where the person is imprisoned. R v REID
There is no specification of the age or gender of the victim – so
a person of any age or gender may be the victim of kidnapping.
It is immaterial whether the accused demanded the payment of
ransom.
ABDUCTION
Under Section 91, A person who abducts a child under eighteen
years of age commits a misdemeanour. Denyo v The Republic.
The actus reus of the offence consists of one of two things:
1. unlawfully taking the child from the lawful possession, care
or charge of a person
2. detaining the child and preventing him or her from
returning to the lawful possession, care or charge of a
person
157 | P a g e
Commented [sq181]: a father took the ward out of the
jurisdiction of the court despite the ward being that of the
court and in the care of the mother. It was held that the
father in the circumstance was capable of kidnapping the
child.
Commented [sq182]: the appellant was convicted for
kidnapping and maltreating the wife who was his co
habituated partner. The defendant, who had quarrelled
with his wife, went to the house where she was living, held
a knife against her throat and threatened to kill her unless
she returned to live with him. In her terror she complied.
The defendant was convicted of kidnapping his wife. There
is no reason why a wife who is not separated from her
husband, even a wife who is still to be regarded as
cohabiting with her husband, should lack this protection of
the criminal law The crime of kidnapping is complete when
the person is seized and carried away; and there is no
reason why kidnapping should be regarded as a continuing
offence involving concealment of the person seized
Commented [sq183]: The appellant was charged with
abduction under section 91 of the Criminal Code, 1960 (Act
29), in that he abducted a girl under the age of eighteen
years. The complainant and her mother testified that she
was seventeen years old. The appellant was convicted and
sentenced to six months’ imprisonment with hard labour.
He appealed against the decision. At the hearing of the
appeal counsel for the appellant applied successfully for
leave to adduce fresh evidence. Fresh evidence was
adduced that the girl was in fact married and had a
twoyear-old child. Held, allowing the appeal: the
prosecution must prove strictly the age of the girl for it was
a most essential element in the offence. The complainant
and her mother said she was seventeen years old but the
fact that she had a twoyear-old child should have called for
stricter proof of her age. The evidence that the complainant
was seventeen years old at the time was unsatisfactory and
not up to the standard of proof required in such a case
  sec 92(1)(a)&(b)
The mens rea of the offence consists of one of three elements,
namely:
1. intent to deprive a person entitled to the possession or
control of the child, or
2. intent to cause the child to be carnally known by any
person, or
3. intent to cause the child to be unnaturally carnally known
by any person
 chapeau of sec 92(1)
There is also a requirement of knowledge, and as such, by
Section 92(3), it must be established that the accused knew, or
had grounds for believing that the child was in the possession,
control, care, or charge of another person.
CHILD STEALING
According to Section 93, a person who steals a person under
fourteen years of age, whether with or without consent,
commits a second degree felony. All that need to be proved is
that the victim was under 14 years old. Consent is immaterial. It
is no defense for the accused to assert that he did not know or
believe the victim to be under fourteen years or that he had no
means of knowing his age
Apart from the age requirement, in order to convict the accused,
it must also be established, that:
158 | P a g e
  the accused unlawfully took or detained the victim
with intent to deprive the victim of the possession
or control to which another person is entitled - sec
94(1), or
 that the accused unlawfully took or detained the
victim with intent to steal anything on or about the
body of the victim - sec 94(1) or
 that the accused unlawfully took or detained the
victim with intent to cause harm to the victim – sec
94(1).
By Section 94(2), It is not necessary for the prosecution to prove
that the person stolen had been taken from the possession, care
or a charge of a person, if it is established that some person,
other than the accused, was entitled to the control or possession
of the victim. In other words, it is enough for the prosecution to
show that the accused is not the person entitled to the
possession, care, control or charge of the person stolen. REGINA
Commented [sq184]: The appellant was charged before
v DJOMOH Scott J. sitting with assessors for child stealing. At the trial
one witness said that she saw appellant at night with the
child (aged 5) going in the
direction of a fetish. The appellant explained to her that the
child was showing him to a certain house.
On further questioning, the appellant ran to the bush,
leaving the child behind. In his defence, appellant said he
had never seen the child and the evidence of the
Special Provisions with respect to the offences of Abduction prosecution witnesses was fabricated to punish him for
having insulted a fetish. He was convicted and he appealed.
and Child Stealing HELD: The court held that, the question that needed to be
asked in this case was “Do the circumstances point
necessarily
to the prisoner’s guilt, and to no other logical conclusion?”
By Section 95(1)(a), On a charge of abduction or child stealing, it The trial court did not ask this question and as such, the
court quashed the appellant’s conviction.
is no defense for the accused to assert that the victim consented
– it suffices if the accused persuaded, aided, or encouraged the
159 | P a g e

victim to depart or not to return. Also, by Section 95(1)(b), An
intention merely to temporarily deprive a person of the
possession or control of the person taken or denied, for however
Commented [sq185]: ILLUSTRATION
A mother, believing in good faith that she has a right to the
custody of her child in pursuance of an agreement with the
father, takes it away from the father. The mother has not
committed the criminal offence of abduction, although the
agreement is invalid

short a time is enough to fix the accused with liability for

abduction or child stealing, as the case may be.
However, the accused is not absolved from liability on the plea
that he did not know or believe, or had the means of knowing
that the age of the victim was under 18 or 14, as the case may
be. Whatever be the case, the accused is not exempted from
liability for abduction or child stealing as long as he took or
detained the victim for an immoral purpose – Section 95(2).
Then also, a person who is in temporal possession, care or charge
of a child for a special purpose, say, as a school master, may be
liable for child stealing or abduction, if he does acts in relation to
the child he is not entitled to so do – such a person cannot give
consent to another person to do a thing to the child, which thing
is inconsistent with the special purpose for which the child is
being kept.
HUMAN TRAFFICKING
This is governed by the Human Trafficking Act, 2005, (Act 694).
The Act seeks to prevent and reduce human trafficking within
and across national borders, especially for commercial purposes.
By Section 2(2), the offence attracts a penalty of not less than
five years.

160 | P a g e
Human trafficking means the recruitment, transportation,
transfer, harbouring, trading, or receipt of persons within and
across national borders by any of the following acts
threats
force or other forms of coercion
abduction
fraud
deception
abuse of power
exploitation of vulnerability
giving or receiving payments and benefits to achieve
consent. Section 1(1)
Exploitation includes:
 induced prostitution and other forms of sexual
exploitation
 forced labour
 forced services
 slavery, or practices similar to slavery
 servitude
 removal of organs. Section 1(2)
By Section 8 of Act, one is under a duty to inform the authorities
if one has information concerning trafficking. Failure to so inform
fixes one with liability for a fine of not less than 250 penalty units
or a term of imprisonment not less than 12 months or both. Commented [sq186]: A person who is bound by law, or
by virtue of an agreement or employment, to keep charge
of or to
CHILD ABANDONMENT maintain a child under five years of age, or who is unlawfully
in possession of a child, abandons the child by leaving it at a
This offence is governed by Section 96 of Act 29. hospital, or at the house of any other person or in any other
manner, commits a
misdemeanour.

161 | P a g e
 There are two situations under which a person may be liable for
the offence
1. where the person is bound by law, or an agreement or
employment to keep charge of the infant and he/she
abandons the child, or
2. where the person is unlawfully in possession of the child
and he/she abandons it.
The court on R v Boulden defined abandon to be to leave a child
to its fate. Abandonment arises where the accused leaves the
child at a hospital, or at the house of another person, or leaves
the child in any other manner. The child should be under five
years in the first scenario, but it is not too clear in the second
scenario.
Where the accused is bound by law to keep charge of or to
maintain the child, he/she need not be the one who initially left
the child to its fate – liability arises if after becoming aware that
the child has been left to its fate, he/she fails or refuses to
retrieve the child from that state.
R v White
A mother of a child under two years placed it the doorstep of the
father and left it there. He was in the house at the time, and she
called out: “Bill, here’s your child; I can’t keep it. I am gone.” The
father some time afterwards came out, stepped over the child,
and went out away. About an hour and a half afterwards, the
father’s attention was again called to the child still lying in the
road. His answer was: “It must bide there for what I know, and
162 | P a g e
then the mother ought to be taken up for the murder of it.”
When his attention was called to it again, he said: “I will not
touch it; those that put it there must come and take it.” Later,
the child was found by the police in the road, cold and stiff. The
father contended that he did not abandon the child. HELD: Bovill
CJ had this to say, Now, the father was entitled to the custody
and possession of the child and he was bound to maintain and
provide for it, and to protect it, both morally and legally. The
prisoner was aware that the child was lying at his door, and
there was clear evidence that he knew it was there, and
therefore he had the opportunity of protecting it…The
relationship of a father as regards his duty to his child is
different from that of any other person
OFFENCES AGAINST PROPERTY RIGHTS
These offences may be categorized in two main groups – There
are the acquisitive offences – in the sense of the acquisition of
items – these offences involve dishonesty. Then there are
offences involving damage or destruction of items
STEALING
By Section 124(1), a person who steals commits a second degree
felony. By definition, Section 125 provides that, a person steals
if he dishonestly appropriates a thing of which he is not the
owner. The actus reus is the appropriation of a thing and the
mens rea is the dishonesty with which the thing was
appropriated.

163 | P a g e
To establish these elements, the prosecution must prove three
requirements, namely:
1. that the accused is not the owner of the thing allegedly
stolen
2. that the accused appropriated the thing alleged to have
been stolen, and
3. that the appropriation was dishonest.
LUCIEN v THE REPUBLIC
i. Lack of Ownership: the accused must not be the owner
of the thing allegedly stolen. There is no requirement
that the prosecution should prove who actually owns the
thing allegedly stolen – Section 123(3). All that is needed
is for the prosecution to show that the accused is not the
owner of the thing allegedly stolen – Halm v The
Republic.
ii. Appropriation: The accused must have appropriated the
thing alleged to have been stolen. This is governed by
Section 122. By Section 122(2), appropriation of a thing
means the taking, moving, obtaining, carrying away, or
dealing with the thing with the intention of depriving the
owner of
- the benefit of his ownership, or
- the benefit of his right or interest in the thing, or
- in its value or proceeds, or
- any part thereof.
ANTWI v THE REPUBLIC, ANING v THE REPUBLIC,
164 | P a g e
Commented [sq187]: the appellant was convicted for
stealing articles after he resigned as a teacher. At trial there
was dispute over the ownership of the product. On appeal
he contended that since the ownership was in dispute his
conviction was wrong. Held: The only basic ingredients
requiring proof in a charge of stealing were that: (i) the
person charged must not be the owner of the thing stolen,
(ii) he must have appropriated it and (iii) the appropriation
must have been dishonest. Consequently, it was
unnecessary to prove ownership of the thing stolen and
under section 120 (2) of Act 29, the thing, the ownership of
which was in dispute or in doubt could properly be the
subject-matter of a stealing count.
Commented [sq188]: In proceedings in respect of
stealing, it is not necessary to prove ownership or value.
Commented [sq189]: Appeal against a conviction of
stealing. On the issue of proof of ownership, court held that
a charge of stealing is founded not on a relationship
between the person charged and an identified owner, but
on the relationship between the person charged and the
thing alleged to have been stolen. Therefore the law only
requires proofthat the accused was not the owner of the
chattel.
Commented [sq190]: The appellant signed a voucher
under a fictitious name and received money which was
really due him for extra work done. His appeal against
conviction of stealing was upheld. Held: The court held that
since the money was due him for extra work done, there
was no appropriation or an intent to deprive anyone of his
ownership.
Commented [sq191]: the appellant contrary to the laid
down rules for requisition in the Ghana armed forces took
roofing sheets from his contingent grounds to that of the
second accused, another commanding officer. He was
convicted for stealing. He failed to inform the authorities of
the Armed Foces of the whereabouts of the sheets and
when confronted, he denied knowledge of them. He was
was convicted of stealing and he appealed. He contended
that since the goods never left the Ghana army base there
was no stealing. HELD: on the evidence, the appellant
intended to steal the roofing sheets and since the kaw if
Ghana did not require a ‘carrying away’ before
appropriation could be established, he was guilty of stealing
the roofing sheets.
 R v WALSH
the prisoner was tried on an indictment for stealing a bag.
The bag was placed in the front boot of a coach. The
prisoner, who was sitting on the box, lifted the bag. A
person who stood beside the wheel on the pavement
took hold of the bag, and while the two were trying to
draw it out of the boot with a common intent to steal it
they were interrupted by the guard, and they dropped
the bag. HELD: It was held that even though the bag was
not entirely removed from the boot, since the raising it
from the bottom had completely removed each part of it
from the space that specific part occupied there was
complete asportation, and the conviction was right.
It is enough if the intention is to deprive some person
temporarily, however fleeting the period, of his benefit
or right or interest in the thing appropriated. It also
suffices if the appropriation is merely for a particular use,
if the accused intended so to use or deal with the thing
that it will probably be –
- destroyed, or
- become useless, or
- greatly injured, or
- depreciated, or
- to restore it to the owner only by way of sale or
exchange, or for reward, or in substitution for some

165 | P a g e
 other thing to which he is otherwise entitled, or if it
is pledged or pawned.
- Section 122(3)
Thus, temporary use or temporary appropriation is
enough to fix one with liability as long as it is
accompanied with the intention to deprive the owner of
his ownership, interest, benefit, value, proceeds, or part
of the thing.
ILLUSTRATION
If A. borrows a horse without the consent of its owner,
intending to keep it until it is worn out before returning
it, A. is guilty of stealing the horse
By Section 122(4), It is immaterial whether the act by
which a thing is taken, obtained, or dealt with amounts
to trespass or conversion or otherwise, or it is not
otherwise unlawful except for the dishonesty
surrounding the appropriation.
iii. Dishonesty: The appropriation must be dishonest.
By sec 120, dishonest appropriation arises in one of three
ways, namely:
i. where the appropriation is made with an intent
to defraud; or
ii. where the appropriation is made without a claim
of right, and with the knowledge or belief that
the appropriation is without the consent of some
person who is the owner of the thing; or
iii. where the appropriation, if known by the actual
owner, would be without his consent.
166 | P a g e
 i. Appropriation to defraud: The existence or otherwise
of an intent to defraud depends on the circumstances
of each case. In terms of section 16, an intent to
defraud is an intent to cause, by means of the
asportation, any gain capable of being measured in
money, or the possibility of any such gain, to any
person at the expense or the loss of any other person.
ii. Appropriation without claim of right: An
appropriation without a claim of right is dishonest. Sec
15 defines claim of right as “a claim of right made in
good faith”. This definition seem to be inadequate.
A person has a claim of right if he is honestly asserting
what he believes to be a lawful claim, even though his
claim may be unfounded in law or in fact. That is to
say, a man who takes possession of property, which
he really believes to be his own, does not take it
dishonestly, however unfounded his claim may be.
So, as the illustration goes, A., during a lawsuit with B.,
as to the right to certain goods, uses or sells some of
the goods. Here A. is not guilty of stealing, because,
although A. believes that B. would object, yet A. acts
under a claim of right
A claim of right must be made in good faith. A claim
that is made without good faith – in other words – a
claim that is tainted with mala fides or ill or bad faith
will render the appropriation dishonest. Thus, all the
accused needs to show is a demonstrably honest
belief in his claim.
OSEI KWADWO II v THE REPUBLIC.
167 | P a g e
Commented [sq192]: The illustration goes that: A., a
commercial traveler, is directed to collect money for his
employer. If he is at liberty to spend or dispose of the
particular moneys which he collects, and is only bound to
account for the balance in his hands at particular times or
when called upon, he does not commit stealing merely by
spending any or all of the moneys collected by him, unless
there is an intent to defraud
Commented [sq193]: the accused collected money from
the people of fahiakobo which the respondent contended to
be unlawful since it was the administrator of stool lands
who was to collect these monies as provided by section
17(1) of the Administration of Lands Act, 1962 (Act 123).
The accused contended that the land in question was not a
stool land. Held; From this formulation of a claim of right, it
is patent that good faith is of the essence of the defence.
The accused has a valid defence to a criminal charge where
he honestly but mistakenly believes that he is entitled to do
an act which is an actus reus. Doubt can, however, be cast
on the honesty of the belief, or such honesty may be
rebutted, by evidence of information known to the accused
which should have persuaded him to correct his allegedly
mistaken view. A person has a claim of right …if he is
honestly asserting what he believes to be a lawful claim,
even though it may be unfounded in law or in fact The
Appellant here clearly believed that he was entitled to
collect revenues from the Fahiakobo Lands. However,
because of the evidence on record that he received a
warning issued on behalf of the Stool Lands Secretariat, he
cannot prove his good faith, in the light of that corrective
information.
 BREMPONG II v THE REPUBLIC,
The appellant, the Omanhene of Atebubu Traditional
Council was arrested and charged with the offence of
stealing a Mercedes Benz car belonging to the council.
He was given the car by the council to use to which it
broke down. The car was towed to Kumasi for repairs
for which the appellant paid for the costs. The repairer
however collected these monies and dismantled the
car and sold them and later absconded to Nigeria with
the money. The car was left in a state of disrepair and
notice was made to the council. The appellant sold the
car for ¢5000. He claimed that the council had
abandoned the car and he sold it to recoup his money
paid to the repairer. He thus relied on the defence of
cliam of right. He was convicted of stealing and he
appealed. HELD: in a charge of stealing, it must be
proved by the prosecution that the accused
dishonestly appropriated the stolen item. She further
held that dishonest appropriation must be done with
intent to defraud and also, a defence of claim of right
can validly negative the claim. A person has a claim of
right if he is honestly asserting what he believes to be
a lawful claim even though his claim may be
unfounded in law or in fact. From the case, the court
held the appellant to have the defence of claim of
right as he only sold the car to recoup hos monies paid
to the absconded repairer
R v BERNHARD

168 | P a g e
 The appellant was once a mistress of the complainant.
They broke up and the appellant represented to the
complainant that she was broke. The complainant
agreed to pay her a sum of £20 per month for one year
and paid her four months advance. After the
expiration of the four months, the appellant deamded
the remainder of the money from the complainant,
failure of which she will let his wife know about their
relationship. She was arrested and charged with
demanding mone with threats and intent to steal. She
was convicted and has appealed, on grounds of claim
of right, in that, she honestly believed that the money
was hers and was only demanding it. HELD: The court
held that it was not necessary that the appellant
should be right in law or in fact in her claim of right.
What is necessary is that he honestly believed she had
a claim, for which in this case she had
iii. Where the appropriation, if known by the owner of
the thing, would be without his consent: This point is
self-explanatory. The Act provides this illustration.
A being the guest of B writes a letter on B’s paper. Here
A has not stolen, because, although A does not use the
paper under a claim of right, yet A believes that B, as
a reasonable person, would not object to A doing so.
However, the prosecution is not required to show that
the accused should know the owner of the thing. It
suffices if the accused has reason to know or has
reason to believe that some other person, whether

169 | P a g e
 certain or uncertain, is interested in the thing or is
entitled to it, as owner or by operation of law. Section
120(2).
However, a person may not be guilty of stealing if the ownership
of the thing is in doubt. Therefore, where the defence alleges
consent on the part of one of the disputed owners, then proof of
ownership becomes material, since consent to appropriation by
the owner negatives stealing.
Commented [sq194]: It is not necessary, in order to
constitute a dishonest appropriation of a thing, that the
accused person should know who the owner of the thing is,
but it suffices if the accused person has reason to
know or believe that any other person, whether certain or
uncertain, is interested in or entitled to, that thing whether
as owner in that person’s right or by operation of law, or in
any other manner; and a person so interested in or entitled
to a thing is an owner of that thing for the purposes of the
provisions of this Act relating to criminal misappropriations
and frauds.

DRAMANU v THE REPUBLIC

The appellant, a secretary of the Gonja Traditional Council was
ordered by the paramount chief of the area, the Yabonwura, to
sell two stray cattle, which by custom had been brought to the
chief. An amount of ¢200.00 was realized from the sale, and
according to the prosecution, the appellant failed to pay the sum
into the traditional council's coffers. The appellant was therefore
charged with stealing.
In his defence he stated that after the sale he gave the ¢200.00
to the chief, who, as the owner, gave it back to him for safe
keeping. But later, on the instructions of the chief, he used the
money in paying a debt owed by the chief’s son. Even though the
prosecution alleged that the money belonged to the traditional
council, no evidence was adduced in proof of the fact that the
council had lost anything. The trial magistrate found the
appellant guilty of stealing and convicted him.

170 | P a g e
HELD: In allowing appeal, it was held that even though under
section 120 (2) of Act 29, a person might be guilty of stealing a
thing, the ownership of which was in dispute or unknown, or had
been found by another person, on its true construction, the
section did not mean that a person might be guilty of stealing
when the ownership was in doubt.
And although section 125 of Act 29 made it plain that it was not
necessary for the prosecution in proving a stealing charge to
establish ownership of the stolen property, where the
prosecution had specifically stated in the charge sheet that
ownership resided in some particular person, failure to establish
such ownership could be fatal to the prosecution's case.
COMMENT: In this case proof of ownership was fundamental,
first in the sense that whereas the prosecution alleged that the
traditional council was the owner, the accused alleged that the
money belonged to the chief, secondly that although the trial
magistrate decided that it was not proved that ownership was in
the council, he made a restoration order in their favour and
thirdly, it formed the basis of the defence of the appellant for if
the paramount chief was the owner as alleged, then he could not
have been guilty of stealing.

The consent of the owner to the taking of a thing is a complete

defense to a charge of stealing, since the owner’s consent to the
taking negatives the essential element of dishonest
appropriation. All the factors that negatives consent is applicable
here.
171 | P a g e
Consent here may be actual or implied. Implied consent may be
deduced from the relationship between the parties – for
instance, in law, ordinarily, marriage operates as implied consent
to the taking of property belonging to the other spouse. In law,
a wife has the implied consent of the husband to take and use
his property, just as he has the implied consent of his wife to the
use of her property. The general rule is that if the wife of the
owner of the thing consents to its appropriation by the accused,
the accused will be exculpated from liability unless the accused
had notice that the wife did not have the husband’s authority to
consent to the appropriation. Section 126(1). R v CREAMER
The accused will be deemed to have had notice that the wife did
not have the husband’s authority, if the accused has had a sexual
connection with the owner’s wife, or if the accused is designing
to have a sexual connection with her. However, the accused will
not be guilty of stealing by reason only of the fact that he
appropriated the thing with the consent of the owner’s wife or
by reason only of the assistance rendered to him by the owner’s
wife to appropriate a clothing of the wife, or money or other
item which the owner’s wife is apparently permitted to have at
her disposal or for her own use. Section 126(2). R v FLATMAN
Also, by Section 121, a co-owner of a thing can be guilty of
stealing the thing, irrespective of the fact that the thing is jointly
owned by the accused and another person or persons. R v
MAYWHORT
Subject Matter of Stealing
172 | P a g e
Commented [sq195]: Where it is proved, on behalf of a
person accused of having stolen a thing that the wife of the
owner of the thing consented to its appropriation by the
accused person, the accused person shall not be
convicted unless it is proved against the accused person
that the accused person had notice that the wife did not
have the authority to consent to the appropriation
Commented [sq196]:
Commented [sq197]: Where it appears that the accused
person had committed, or designed to commit, adultery
with the
wife, the accused person shall be deemed to have had
notice, but shall not in that case be deemed to have
committed the criminal offence of stealing by reason only
(a) of the appropriation, with the consent of the wife, or
(b) of the assistance to the wife to appropriate a wearing
apparel of the wife or money or any
other thing of which the wife is apparently permitted to
have the disposal for her own use.
Commented [sq198]: A person who is an owner of or
interested in a thing, or in the amount, value or proceeds of
that thing,
jointly or in common with another person or as a member
of a company, or who is owner of a thing as a trustee and
also as a beneficiary of that thing, whether jointly or in
common with another person or for a company of which
that person is a member, can be convicted of stealing or of
fraudulent breach of trust in respect of the thing; and a
person can be a clerk, servant, or officer of a company of
which that person is a member.
The list of things that can be stolen are inexhaustible
By sec 123, anything may be stolen –
- whether living or dead
- whether fixed to anything or not
- whether the thing be a mineral or water, or gas, or
electricity, or of any other nature
- whether the value of the thing does not amount to
one pesewa
- whether the value of the thing is intrinsic (i.e. is only
valuable by and of itself and not because of its
association with any other thing)
- whether the value of the thing is only for the
purpose of evidence
- whether the thing is of value only for a particular
purpose
- whether the thing is of value only to a particular
person
And if the thing is a document, it is of value, whether it is
complete or incomplete; and whether it is satisfied, exhausted,
or cancelled.
By Section 123(3), on a charge of stealing, there is no Commented [sq199]: The appellant was convicted for
stealing a human skull from a grave. He appeals to the high
requirement to establish the value of the thing. Therefore, even court contending that a skull of a human being did not
constitute a thing capable of stealing under the criminal
if the thing has no intrinsic value, the accused would still be offences act. HELD: It was held on appeal that secs 122 (2)
and 123 of Act 29 were couched in such wide terms as to
guilty. SAM v THE STATE make a human skull capable of being stolen because the
relatives of the deceased were "interested" in the corpse of
which the skull formed part. Further, since no person could
It should be noted that dominion or possession is critical to the remove a corpse from a grave without the permission of the
Minister under Act 301, s. 27 (7), it followed that the local
offence of stealing – that is to say, property which is not subject authority was interested because it was buried in their
ground. And that there was abundant evidence to show that
to the dominion of any person such as animals in the wild or fish in Ghana, relatives did not abandon their dead. A corpse or
any part of it was therefore capable of being stolen

173 | P a g e
in a river, lake or sea cannot be the subject-matter of stealing,
unless brought to effective possession or dominion of another or
regulated by game reserve laws.
Commented [sq200]: ILLUSTRATIONS
Therefore, by sec 127, a person is NOT guilty of stealing if he 1.A finds a ring in the high road. If the ring has an owner’s
or maker’s name or motto engraved
appropriates a thing which appears to have been lost by another on it, or if it is of great value, A will be convicted of
stealing it if A appropriates it without
person, except: making reasonable enquiry.
2. A buys an old chest at the sale of the personal effects
of a deceased person. A finds a
- if at the time of appropriating the thing, he knows banknote in a secret drawer of the chest A commits the
criminal offence of stealing if A
the owner of the thing or the person by whom it has appropriates the note, unless A had expressly bought the
right to what A might find in the
been lost, or chest, or makes reasonable enquiry and fails to discover
the owner.
- if the character or situation of the thing, or the
marks on it, or any other circumstances is or such as
to indicate the owner of the thing or the person by
whom it has been lost – so, for instance A. finds a
ring in the highway. If the ring has an owner’s or
makers’ name or motto engraved upon it or it is of
grave value, A. will be guilty of stealing it if he
appropriates it without making reasonable enquiry,
or
- if the character or situation of the thing, or the
marks upon it, or any other circumstances is or are
such that the person who has lost the thing appears
likely to be able to recover it by reasonable search
and enquiry, if it were not removed or concealed by
any other person
KRAMO WALA v THE STATE
The accused was found in the possession of an accordion, the
missing property of another, whose room was allegedly broken

174 | P a g e
into during the night and some of his property stolen therefrom.
When the accused was challenged, he said that he had picked up
the accordion from the ground on his way to the lavatory. He
was accordingly taken to the police station and there charged
with stealing the accordion.
HELD: In allowing his appeal against conviction, it was held that
if a man found goods that had actually been lost or were
reasonably suspected by him to have been lost, and
appropriated them really believing when he took them that the
owner could not be found, that was not stealing; but if he took
them with a felonious intent and reasonably believed that the
owner could be found, he committed the offence of stealing.
COMMENT: In the instant case, there was no evidence on the
record to show that the appellant at the time he picked up the
accordion knew or believed he could ascertain who the owner
was. It was not sufficient that if he had taken pains the owner
might be found because he was not bound to do that.
ALI v THE REPUBLIC
Sometime in July 1988, the first appellant, a blind man, sent
some school boys he heard passing by his house to buy him food.
One of the boys gave him something wrapped in paper and told
him that he had dropped it. Later, he gave the paper to the
second appellant who had come to visit him to ascertain what
was in it. When he learnt that the paper contained earrings, the
first appellant authorised the second appellant to take them to
a goldsmith to ascertain their value. Accompanied by the third
175 | P a g e
appellant, a cripple, they were informed that the earrings were
made of gold and would sell at ¢1,200. The third appellant
bought the earrings when the first appellant offered them for
sale. However, when the third appellant sent the earrings to the
complainant, another goldsmith who lived in the same house as
the first appellant, for another assessment of the value of the
earrings, the complainant claimed the earrings were part of a
number of missing trinkets valued at ¢55,000. He therefore took
the third appellant to the police station and the two others were
arrested. At the trial the first appellant was charged with
stealing, the second appellant with abetment, and the third
appellant with dishonestly receiving. The appellants were
convicted and sentenced to six months' imprisonment with hard
labour. They appealed.
HELD: It was held that since there was no evidence that the first
appellant, a blind man, who had to rely on the second appellant
to ascertain the nature and value of the earrings— which had no
identifying marks—knew who their owner was, and besides, he
had waited for two weeks when no one reported their loss
before selling them, a charge of stealing could not be sustained
against him.

ROBBERY
According to Section 149, a person who commits robbery
commits a first degree felony. Robbery is stealing with the use of

176 | P a g e
force, or causing of harm, or threat of criminal assault or harm –
R v DAWSON.
By section 150, a person who steals a thing is guilty of robbery if,
in and for the purpose of stealing the thing
Commented [sq201]: the accused robbed a petrol
station. It was held:"a person is guilty of robbery if he steals,
and immediately before or at the time of doing so, and in
order to do so, he uses force on any person or puts or seeks
to put any person in fear of being then and there subjected
to force.

- he uses any force or causes any harm to any person,

or
- if he uses any threat of criminal assault or harm to
any person,
all with the intent to prevent or overcome the resistance of the
other person to the stealing of the thing
Thus, on a charge of robbery, the prosecution must prove all the
elements of stealing and also show:
 that the accused used force or caused harm to some person
in the process of stealing, or
 that he threatened some person with assault or harm in the
process of stealing, and
 that the accused did so with the intent of preventing or
overcoming the resistance of the person to the stealing of
the thing
It should be noted that the force or threat need not be directed
solely at the person being robbed – so it suffices if the force or
threat is directed at some other person if the intention is to
prevent or overcome the resistance of the first person to the
stealing of the thing.

177 | P a g e
BEHOME v THE REPUBLIC
The appellant had suspected for some time that his wife had
been having an affair with N. On the day in question, the
appellant left home on the pretext that was travelling. That
same night he led five other persons to the village to watch the
conduct of his wife and after laying in waiting for some time they
saw the wife enter N.'s room. The appellant thereupon led the
other members of the watch into N.'s room, caught the couple,
tied them up, stripped them naked, assaulted them and burnt
their clothing. A brother of N. who later on came to the scene
was also tied up and assaulted. The victims were thereafter
frog-marched to the appellant's cottage and tied to a tree. When
another brother of N. came to the scene, the appellant
demanded that he should pacify him with ¢40.00 as ayefare
otherwise he would kill N. The brother therefore went home and
brought the money to the appellant. The appellant then
demanded and received another ten cedis towards his taxi
expenses. After receiving these sums the appellant refused to
hand over N. on the ground that he (N.) might commit suicide on
account of the punishment he had meted out to him. The
appellant therefore marched his wife and N., naked and with
their hands tied, for a distance of six miles to the odikro's house.
HELD: On a charge of robbery, it was held that under section 150
of Act 29 a person would only be guilty of robbery if in stealing a
thing he used any force or caused any harm or used any threat
of criminal assault to another with intent thereby to prevent or

178 | P a g e
overcome the resistance of that other to the stealing of the
thing. The fear might be either of personal violence to the person
robbed or to a member of his family in the restrictive sense of a
man, his wife and children. And the thing stolen must be from
the person of the one threatened or in his presence, if the
property was under his immediate and personal care and
protection. In the instant case since the duress was against N.
but it was N.'s brother who paid the amount and furthermore
there was an interval between the putting in fear and the taking
of the money whereby it could not be said that there was an
intent to overcome resistance to the stealing by those threats, a
charge of robbery could not be sustained against the appellant.
The mental requirement is crucial – merely using force or causing
harm or resorting to threats is not robbery. The mental element
here involves two aspects:
– first, it must be shown that the accused intended to
steal something (animus furandi) i.e. dishonestly
appropriate a thing not belonging to him and
without a claim of right, and
– second, that he used force or caused harm or
threatened to cause harm or assault with intent to
prevent or overcome the resistance of any person
to the stealing of the thing
It is not necessary that physical harm must be caused. It is
enough if a person is threatened with criminal assault or harm
with intent to put him in fear of such criminal assault or harm.
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EXTORTION
According to Section 151(1), a person who extorts property from
any other person by means of threat commits a second degree
felony. In this regard, Section 151(2), “threat” does not include
a threat of criminal assault or harm to the person threatened.
When used in the context of extortion, “threat” may be in the
nature of blackmail, libel or slander as seen in Section 17. So, as
the illustration goes, if A. obtains money from B. by threat of
violence to B., he is guilty of robbery and not of extortion.
The essence of the offence of extortion is not merely demanding
or obtaining property but doing so with threats. If you make a
demand for money from another person accompanied by
threats not amounting to violence, you may be liable for
extortion unless you can show that you had a reasonable and
probable cause for making the demand – that is – the demand
Commented [sq202]: the first appellant had received
was justifiable. CSP v N’JIE & GAYE from the Public Trustee a sum of £130 to be spent on
certain purposes and for which he was obliged to account. It
Related to the offence of extortion is the offence of extortion by appeared that he had lost or misapplied some of this money
and the letter sent to the chief clerk was an attempt to
a public officer or juror – which is created by section 239 and covel' this loss. The letter implied that after the first
appellant had received the £130, the chief clerk had asked
for and obtained from him £80 by way of " commission."
explained in section 247 The letter, on threat of exposure, demanded the £80 from
the chief clerk, or a receipt for this sum. When the case was
A public officer is guilty of extortion if, under the colour of his tried by the magistrate the first appellant stood by the
contents of the letter: the second appellant claimed that he
had merely written what he was told by the first appellant.
office, he demands or obtains from any person, any money or HELD: A genuine belief in the existence of facts constituting
reasonable and probable cause is a sufficient defence even
valuable consideration, which he knows that he is not lawfully though it may be ill-founded. Although there could, on the
facts, have been no such belief on the part of the first
authorized to demand or obtain, or at a time at which he knows appellant there could not have been on the part of the
second appellant, and as this had not been explored at the
that he is not lawfully authorized to demand or obtain. APPIAH trial the second appellant was entitled to an acquittal.

v THE REPUBLIC

180 | P a g e
The appellant was the special prosecutor of the public tribunal
set up under the Armed Forces Revolutionary Council (Special
Tribunal) Decree, 1979 (AFRCD 93). He was arraigned before the
Circuit Court, Accra on a charge of extortion for demanding and
obtaining from two persons, the complainants, who were
fugitives from justice and whose cases were before the tribunal,
the sums of £1000 and £10,000 respectively, which was paid to
his account in London. He was found guilty of the charge and he
appealed. HELD: The court held that the offence of extortion in
the alternative of demand or obtain. The demand might either
be directly or indirectly made. If indirect, proof of the demand
might be impossible without other enabling statutes. Obtaining
lent itself to readier proof as well as readier defences. It is the
suspicious end results that flowed from representation that
must be explained. As such, provided there was representation,
demand or obtaining, the offence of extortion was committed
even when the payment secured no returns. From the case, the
conduct of the appellant showed a representation under the
colour of his office and there was evidence of obtaining as such.
The difference between extortion simpliciter and extortion by a
Commented [sq203]: The three appellants were all police
public officer is that while the essence of the demand in the officers. They searched the house of the complainant
without authority on grounds of suspiciond of keeping
former is the use of threats, the essence of the demand in the gunpowder in his house. the complainant paid an amount of
¢220 to the appellant, through the 4th appellant. They were
latter is “under the color of office”. YEBOAH v THE REPUBLIC arrested and charged with conspiracy, extortion and willful
oppression. On the extortion charge, he was charged under
section 151 instead of section 247. HELD: The court held
that the appellants at the material time pf the alleged
extortion were public officers and acted by the use of the
colour of their office to obtain money and as such, they
should have been charged under section 247 rather than
section 151. Also, the main idea of extortion is not merely
demanding or obtaining but doing so with threaths. The
charge must contain words by means of threats.

181 | P a g e
FRAUDULENT BREACH OF TRUST
By Section 128, a person who commits a fraudulent breach of
trust commits a second degree felony. The purpose of the
creation of the offence is to discourage trustees from dishonestly
exploiting their position of trust as regards the trust property
and the beneficiaries of the trust property. Thus, by Section 129,
a person is guilty of fraudulent breach of trust if he dishonestly
appropriates a thing the ownership of which is vested in him as
trustee for or on behalf of another person.
The prosecution must prove three essential ingredients to
succeed on a charge of fraudulent breach of trust, namely:
1. that the ownership of the thing is vested in him as
trustee for or on behalf of some other person;
2. that the trustee appropriated the thing while it was so
vested in him; and
3. that the appropriation was dishonest.

According to Section 122(1), An appropriation of a thing by a

trustee means a dealing with the thing by the trustee, with the
intent of depriving a beneficiary of the benefit of the right or
interest in the thing, or in its value or proceeds, or a part of that
thing.
However, by Section 130, a gratuitous trustee cannot be guilty
of the offence of fraudulent breach of trust unless an instrument
of trust in writing has been executed by the trustee specifying
the nature of the trust and the beneficiary. A gratuitous trustee

182 | P a g e
is one, who being the owner of a thing in his own right and for
his own benefit, undertakes to hold or apply the thing as trustee
for another person.
FRAUD BY FALSE PRETENCES
According to section 131, A person who defrauds any other
person by a false pretence commits a second degree felony. By
section 131(2), a person who by means of a false pretence or by
personation obtains or attempts to obtain the consent of a
person to part with or transfer the ownership of a thing by a false
representation of acting in accordance with the instructions,
orders or a request of the President or a member of Cabinet also
commits a second degree felony and is liable to term of
imprisonment of not less than 10 yrs and not more than 25 yrs.
Fraud by false pretences involves obtaining the consent of a
person to part with or transfer the ownership of a thing by
means of a –
- false pretence, or
- personation
- sec 132
To succeed on a charge of defrauding by false pretences, the
prosecution must prove the following essential conditions:
1. that the accused made a false pretence or engaged in
impersonation, and that
2. that by means of the false pretence or personation, the
accused obtained the consent of a person to part with or
transfer the ownership of a thing
183 | P a g e
Clearly then, it must be proved that the person who parted with
or transferred the ownership of the thing in question would not
have done so but for the false pretence or impersonation
The element of inducement is very important – that is to say, the
victim must have been persuaded to accept the false pretence
of or impersonation by the accused as true and to have acted
upon it to his detriment. So, if it is shown that the complainant
was not induced by the false pretence of, or impersonation by
the accused, then it cannot be said that the complainant was
defrauded. Also, if it is shown that the complainant had
knowledge of the falsity of the representation by the accused,
but still acted upon it to his detriment, it cannot be said that the
Commented [sq204]: the appellant, who was an
complainant has been defrauded. RABBLES v THE STATE. independent food contractor received a local purchase
order (LPO) from the University of Ghana for the supply of
On another score, by Section 133(2)(c), it does not matter that 10 bags of white rice. He altered the figure "10" on the LPO
to read "110" and added two more items, 300 bags flour
had the complainant used ordinary care and judgment the false and 50 cartons sugar and took it to the complainants,
Edward Nassar & Co. Ltd., who supplied him with two of the
items on the list. The complainants discovered that the
pretence would not have induced him – the accused is liable as university had requisitioned for only ten bags of rice. They
nevertheless supplied the appellant with the third item, and
long as the false pretence influenced the decision of the reported the matter to the police. HELD: On appeal against
his conviction it was held that the complainants could not
complainant. be said to have been induced by his representation because
in cases of false pretence, to induce must be taken to mean
to persuade a victim to accept a representation made to
What then is the position of the law where consent is obtained him as true and act upon it to his detriment or to the
detriment of another.
by a false representation as to the quality or value of a thing?
Here, by Section 133(2)(c), the consent will be deemed to have
been obtained by a false representation only where the thing is
substantially worthless in comparison to what it was
represented to be, or the thing is substantially different from
what it was represented to be.

184 | P a g e
There are separate definitions of false pretence and personation.
Despite the separate definition, personation is a species of false
pretence, while false pretence is the genus. False pretence,
according to Section 133(1), is a representation of the existence
of a state of facts made by a person, made with the knowledge
that the representation is false or without the belief that it is
true, and made with an intent to defraud. By Section 133(2)(a),
The representation may be made in writing or orally, or by
personation, or by any other conduct, or sign, or means. Also, by
Section 133(b) representation of the existence of a state of facts
includes a representation as to the non-existence of a thing or
condition of things.
A representation as to existence of a state of facts renders the
accused liable but a representation as to the occurrence of a
future event does not render the accused culpable. Therefore, a
mere representation or promise that anything will happen or will
be done, or is likely to happen or is likely to be done, will not do.
SECTION 133(2)(b). REPUBLIC v KUMA. From the illustrations,
the following acts by A. do not amount to defrauding by false
pretences, although they are false:
– that a picture he is selling is a valuable work of art
– that he expects to receive a legacy when a relative
dies
However, a false representation as to future conduct or the
promise of an event in the future coupled with a false
representation as to the existence of a state of facts could found
185 | P a g e
Commented [sq205]: ILLUSTRATIONS
So from the illustrations, the following are false pretences
-A. goes into a shop dressed as an officer in the Army,
which he is not. If he does this in order to gain credit
which he would not otherwise get, he is guilty of a
false pretence, although he does not actually say that
he is an officer
-A. represents that a picture which he is selling, once
belonged to a particular collector
-A. represents that a picture which he is selling was
painted by a particular painter
-A. represents that a picture which he is selling
belongs to him when in fact it does not
-A. represents that he is entitled to a legacy under a
will of a deceased relative
-A. represents that he has an account at a particular
bank
-A. represents that he has the authority of another
person to act on that person’s behalf
Commented [SDQ206]: The appellant was arraigned
before a district court on an indictment which charged him
with two counts of stealing. The committal magistrate took
the view that the evidence established the offence of fraud
by false pretences but not stealing. He therefore went for
no case and acquitted the accused. The state appealed
against this decision and was allowed and an order was
made for a re-trial where he was convicted. He appealed
against this conviction. HELD: to succeed on a charge of
defrauding by false pretence, it must be proved that (i)
there was a misstatement or personation fro the accused
which amounted to false pretence, (ii) that the falsity of the
pretence was known to the accused, (iii) that the accused
obtained the consent of another person to part with or
transfer the ownership of anything and (iv) that the accused
acted with intent to defraud. Also, a mere representation or
promise that anything will happen or be done or is likely to
happen or be done does not amont to false pretence.

liability. CSP v CEESAY. For the accused to be culpable, the
accused had an intention to defraud. Section 16 defines intent
to defraud as an intent to cause any gain capable of being
measured in money, or the possibility of any such gain, to any
person at the expense or to the loss of any other person by the
means of a false pretence.
Commented [SDQ207]: The accused was convicted
before a magistrate of stealing by a clerk or servant. The
proceedings at the trial were irregular in that the
magistrate, at the close of the case for the prosecution, had
asked the accused if he had anything to say before sentence
was passed, and had then proceeded to convict the accused
without giving him opportunity to present his defence.
Held, that the irregularity, although of such gravity as must
cause the conviction to be quashed, would not have been
evident from the record of the trial if this were prepared as
in England, and therefore, as the accused had been in
jeopardy, it did not render the trial a nullity.

Personation involves either

– a false representation or false pretence by a person that he
is a different person – it does not matter whether the
person he purports to be is dead or alive or is a fictitious
person; or
– giving or using one’s name with the intention that one may
be believed to be a different person of the same or similar
name – sec 134 – the wording of sec 134(2) suggests that
personation may amount to a crime standing on its own.
FICTITIOUS TRADING
This is governed by Section 135. This is where a person orders or
makes a bargain for the purchase of goods by way of sale or
exchange and after obtaining the goods he defaults in paying the
purchase money or defaults in supplying the goods.
Here, such a person is guilty of defrauding by false pretences in
one of two situations:
– if at the time of placing the order or making the bargain, he
intended to default in paying for or supplying the goods,

186 | P a g e
 that is to say, he had no intention whatsoever of paying for
or supplying the goods; or
– if the order was placed, or the bargain was made with intent
to defraud and not in the course of any trade carried on in
good faith. DARKRUGU v THE REPUBLIC.
Distinction between Stealing and False Pretences
The distinction lies in the existence or otherwise of the consent
of the owner or a person with authority to part with the
ownership of the subject-matter of the charge.
Commented [SDQ208]: The accused collected some
specified worth ₵40000 from the complainant with a
promise to pay for the same within a week. At the
appointed time, the accused who had at the time of
transaction made a part-payment of only ₵21000 did not
return any goods or make any payment to the complainant.
He was arrested and charged with defrauding by false
pretences. HELD: The court held that, the accused had an
intent to defraud as to the requisite intent was made
manifest by the fact that he did not pay for all the goods
supplied him by the complainant nor did he return the
goods at the appointed time.

So where the owner of a thing or person having authority to part

with ownership of the thing, gives his consent to the
appropriation of the thing by the accused, the accused is not
guilty of stealing the thing, even if the consent was obtained by
deceit – in such a case, the accused may be guilty of defrauding
by false pretences. Sec 136(1)
So as the illustration goes, A. intending fraudulently to
appropriate a horse belonging to B., obtains it from B., under the
pretence that he wants it for a day. Here, A. is guilty of stealing.
On the other hand, A., intending to defraud B. of a horse without
paying him induces B. to sell and deliver it to him without present
payment, by a false pretence that he has money in his account.
Here, A. is guilty of obtaining by false pretences, but is not guilty
of stealing
If the accused alleges that he obtained the thing with the
consent of the owner or someone authorized to give consent, he
187 | P a g e
must establish that the consent was unconditional for the
immediate and final appropriation of the thing. Sec 136(2). In
line with the policy under Act 29 to stem the tide of fraud,
charlatanic advertisements have been criminalized under sec
137
Thus, the advertisement or the issue of a notice relating to
fortunetelling, palmistry, astrology, or the use of any subtle craft,
means or device, by which it is sought to deceive or impose on a
person, or which is calculated or is likely to deceive or impose on
a person, is illegal. Sec 137(1). In such a case, the editor,
publisher, proprietor, or printer of a news media in which the
advert or notice is published is liable to be fined an amount not
exceeding 25 penalty units.
DISHONEST RECEIVING
This is where a person takes possession or control of goods
obtained by a crime – the typical case is where a thief sells stolen
goods to another person.
By section 146 of Act 29, it is an offence for a person to receive
property, which that person knows to have been obtained or
appropriated by stealing, fraudulent breach of trust, defrauding
by false pretences, robbery, extortion or unlawful entry.
A person who dishonestly receives property obtained or
appropriated by any of these offences is liable to the same
punishment as if that person had committed that offence. For,
instance, if A. obtains goods from B. by false pretences and C.,

188 | P a g e
knowing that A. obtained the goods by this means, dishonestly
receives the same, he will be guilty of dishonestly receiving the
goods and liable to be punished for defrauding by false
pretences.
On another score, by section 148(1) of Act 29, where a person is
under a charge of dishonestly receiving property, is shown to
have had in his possession or under his control, anything which
is reasonably suspected of having been stolen or unlawfully
obtained, and that person does not give an account, to the
satisfaction of Court, as to the possession or control, the Court
may presume that the thing has been stolen or unlawfully
obtained, and that person may be convicted of dishonestly
receiving in the absence of evidence to the contrary. R v
Commented [SDQ209]: Eighteen shops at Adum, Kumasi
SANTUOH. and a number of wax prints were stolen from them. The
appellant was aroused from his sleep on the night of the
This is an aspect of what is known in the common law as the theft by one Dogo, his friend and some men. They asked
him to keep about 133 pieces of wax prints in room claiming
concept of recent possession – this concept posits that if a person that he received it from his family and that and that, he will
collect it the next day. The appellant collected the goods but
also went out of Kumasi the the next day. He was arrested
is found to be in possession of any property which has been and charged with dishonestly receiving goods. HELD: the
appellant was liable as in a crime of dishonestly receiving,
recently stolen and he is unable to give satisfactory explanation the main contention is whether at the time of receiving, the
accused had knowledge that it was stolen. From the facts
as to how he came by the property, he will be presumed to have and evidence of the case, considering the quantity of wax
prints involved, the time of receipt, the persons who
dishonestly received it, unless he gives a reasonable explanation brought them and the behavior of the appellant after
receipt and his explanation for receiving them, the guilty
as to how he came by it. knowledge can reasonably be inferred.

By Section 148(2), it should be noted that the possession or

control of a carrier, an agent, or a servant is deemed to be the
possession or control of the person who employed the carrier,
agent or servant. This is what is known as constructive
possession. This is what is known as constructive possession.
189 | P a g e
To succeed on a charge of dishonest receiving, the prosecution
must satisfy the following requirements:
i. that the accused received property which he knew to
have been obtained or appropriated by stealing, or
fraudulent breach of trust, or defrauding by false
pretences, or robbery, or extortion or unlawful entry.
ii. that the receipt by the accused of the property was
dishonest.
The actus reus consists of receiving, buying, or assisting in the
disposal of the property otherwise than with a purpose of
restoring it to the owner as seen in SECTION 147(1). Further, it
must be established that the accused either physically received
the goods or that the goods were in the possession of a person
over whom he had control.
Another aspect of the actus reus is the knowledge on the part of
the accused that the property was obtained or appropriated by
a crime – merely proving that the accused received property
obtained or appropriated by a crime is not sufficient to establish
the actus reus. SALIFU v THE REPUBLIC. On this point, knowledge
may be inferred from the circumstances of the case – for
instance, where the accused secrets the property in very unlikely
places. R v BOATENG.
Knowledge may also be inferred, for instance, where goods are
offered for sale at “any price” or where the goods are offered for
sale at a ridiculously low price - in situations such as these,
knowledge may be imputed to the accused since the
190 | P a g e
Commented [SDQ210]: A person commits the criminal
offence of dishonestly receiving property which that person
knows
to have been obtained or appropriated by a criminal
offence, if that person receives, buys, or assists in the
disposal of the property otherwise than with a purpose to
restore it to the owner.
Commented [SDQ211]: the accused stole rice from the
ministry and sold it to the co-accused. The co-accused was
convicted for dishonest receiving. It was held; allowing the
appeal of the second accused that the need for a knowledge
of the for the offence of dishonest receiving. Where stolen
property was found in the possession of an accused an
inference of guilt knowledge was warranted by his
possession together with the absence of an explanation of
that possession. If an explanation was offered that was
consistent with innocence or raised some doubt as in the
instant case, the accused was entitled to an acquittal and
the fact that the accused was negligent or reckless in not
realising that the property was stolen was irrelevant
Commented [SDQ212]: The appellant was charged with
burglary and stealing from a house. He was acquitted on
thise charges but convicted of receiving a bottle of whisky
and a tin of sardines knowing them to have been stolen. He
appealed. HELD: The court held that the trial court erred in
his holding and held that the appellant’s silence was not
proved to collaborate with the crime committed. The fact
that he was silent could mean that he didn’t intend to take
part in the crime.
circumstances are such as to put him on reasonable enquiry –
that is the accused ought to have known that the property was
probably obtained or appropriated by a crime.
The mens rea of the offence consists of a dishonest intent –
therefore, it is not enough merely to show that the accused
received or bought or assisted with the disposal of property with
the knowledge that it was obtained or appropriated by a crime.
However, by Section 147(1), where the intention of the accused
is otherwise than to restore the property to the owner, liability
may arise. Also, by Section 147(2), it does not matter that the
offence by which the property was obtained or appropriated,
was not committed within the jurisdiction of the Court.
FORGERY
The things in respect of which forgery may be committed
include: judicial or official documents, any document, hallmarks
on gold or silver plate or bullion, trade-marks, stamps of any
description and currency notes.
Ghanaian law draws a distinction between official/judicial
documents and unofficial and non-judicial documents. By
Section 158, it is a second degree felony to forge a judicial or an
official document with intent to deceive another person. An
official document is one purporting to be made, used or issued
by a public officer for a purpose relating to that public office –
Section 163(3)

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According to Section 159 It is a misdemeanor to forge a non-
judicial or unofficial document with intent to defraud or injure
another person; or with the intent to evade the requirements of
the law; or with the intent to commit, or to facilitate the
commission of, a criminal offence.
To succeed on a charge of forgery under either sec 158 or sec
159, the prosecution must prove that the thing alleged to have
been forged is a document. A document is defined under Section
Commented [SDQ213]: Documents normally refer to
179(1) of the Evidence Act, 1975 (NRCD 323) writings, including handwriting, typewriting, printing,
photostat, photograph, mechanical or electronic recording,
Also, under Section 160, It is a misdemeanor to forge or and any other means of recording upon a tangible thing, or
form of communication or representation, including letters,
counterfeit a hall-mark or mark appointed, under the authority words, pictures, sounds or symbols, or combinations of
those things.

of a law, by a public corporation or public officer to denote the

weight, fineness, age, or place of manufacture of gold or silver-
plate or bullion with the intention to defraud.
The mens rea requirement of an intent to deceive under section
158 is different from the mens rea requirement of an intent to
defraud or injure under sections 159 and 160. Intent to defraud
Commented [SDQ214]: where a forgery, falsification, or
(deceive) is explained under Section 16. Intent to injure on the any other unlawful act is punishable if used or done with
intent to defraud, an intent to defraud means an intent to
other hand means that some person may act to his detriment or cause, by means of the forgery, falsification, or the other
unlawful act, a gain capable of being measured in money, or
loss. the possibility of that gain to a person at the expense or to
the loss of any other person.

With respect to “intent to deceive”, the law does not require the
person deceived to have been deprived of anything. Thus, where
the accused sets out with an intent to deceive, but not to defraud
or injure, he may not be culpable under sec 159. YIRENKYI v THE
REPUBLIC.

192 | P a g e
The appellant was an employee of the G.N.T.C. attached to the
provisions wholesale. His mother-in-law was a baker who had
tried on many occasions without success to obtain flour from the
G.N.T.C. As a result, her business was failing. The appellant found
a chit for the supply of ten bags of flour to the Ghana Police Force
which had not been cancelled or countersigned by the district
manager. Thinking it was still valid and had not been utilised, he
cut off the heading “Ghana Police Force” and substituted his
wife’s name. The chit was then given to his mother-in-law who
paid for and collected ten bags of flour. The appellant was
charged with forgery with intent to defraud. He was convicted
on his own plea and he appealed, contending that he only
intended to deceive and not to defraud. HELD: The court held
that there was a difference between an intent to defraud and an
intent to deceive. To deceive is to induce a man to believe that a
thing is true which is false and to defraud is to deprive by deceit.
There are two essential elements to the commission of the crime
of forgery under Section 159. off the heading “Ghana Police
Force” and substituted his wife’s name. The chit was then given
to his mother-in-law who paid for and collected ten bags of flour.
The appellant was charged with forgery with intent to defraud.
From the case, the act of the appellant did not induce the
storekeeper to do what was not his duty and as such, had no
intent to defraud
By section 161, it is a misdemeanor to forge or counterfeit a
trademark in relation to goods or the sale of goods or sell or offer
for sale any goods or thing so marked or have in one’s
193 | P a g e
possession, custody or control the goods or a thing so marked,
or the materials contrived or means prepared or contrived for
the forging or counterfeiting a trademark, or for the marking of
goods or a thing with the intention of fraudulently passing off, or
to enable another person to fraudulently pass off, the goods as
having been lawfully marked with the trade-mark or as being a
character signified by the trademark. Look at Section 163(1) for
the definition of trademark.
Counterfeiting is an offence on its own – thus, by section 168(2)
the offence of counterfeiting consists of making anything, which
is intended to serve as a specimen, or pattern or trial of a process
for counterfeiting a stamp or mark. Counterfeiting is defined by
section 168(1) as the making of an imitation of a stamp or mark,
or anything which is intended to pass or which may pass as that
stamp or mark or thing.
By section 165, it is a misdemeanor to possess a means of
forging – that is having in one’s possession, without lawful
excuse, an instrument or a thing specifically contrived or
adapted for the purposes of forgery. OLUJOMOYE v THE
Commented [SDQ215]: The appellant and his wife were
REPUBLIC. By section 166, it is an offence to possess a forged, charged before a judge and a jury for having in their
possession things contrived for the purpose of committing a
counterfeited or falsified document or stamp with the requisite crime relating to forging currencies. The appellant was
convicted but his wife was acquitted. He appealed on
mens rea. The accused must know that the document is forged, grounds that at the time of being caught, the things were in
the possession of his wife and not him. HELD: The court held
or that it is counterfeited, or that it is false or not genuine. that although actual possession of the item was necessary,
it was sufficient that if they are in the actual possession of a
person over whome the defendant has a contract so that
OKPARA v C.O.P they would be forthcoming if ordered. Thus, in the case, cos
the appellants wife was in possession, it is imputed that he
also was.
The appellant was convicted on four counts of possessing forged
documents and aiding and abetting another to commit forgery.
194 | P a g e
He was convicted and he has appealed. HELD: It is essential that
for a charge under section 166 of the Criminal Code, 1960, to
succeed it must be alleged in the particulars thereof, and it must
be proved by evidence, that the person charged knew that the
document in his possession is forged or that it is otherwise not
genuine. Failure to prove that essential ingredient of the charge
is fatal to the prosecution. No evidence from the prosecution
substantiated the claim.
The mere possession of a forged document is not an offence –
the intent with which it is posed is a crucial factor. BAWA @
ISSAHAQUE v THE REPUBLIC. Section 167 provides what
constitutes possession for this purpose.
By sec 169, it is an offence to utter or deal with or use a
document or stamp with the knowledge that it is not genuine or
that it is forged, counterfeited or falsified and with the requisite
mens rea.
Further, by section 164(1), a person forges a document if he
actually makes or alters the document, with intent to cause it be
believed:
– that the document has been made or altered by a
person who did not in fact make it or alter it – it is
immaterial if the person is dead or alive or is a
fictitious person; or
– that the document has been made or altered with
the authority or consent of a person who did not in
fact give the authority or consent – it is immaterial
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Commented [SDQ216]: the police in Accra reported to
their Tamale branch a case of defrauding in Accra involving
the accused. He was arrested at his home in Tamale where
certain documents, namely a GCE O’level certificate
together with a testimonial and result slip from Tamale
Secondary School were found even though he attended
Bawku Secondary School. He was charged with the offence
of possession of forged documents. HELD: it was held that
since the accused was charged with possessing forged
documents, it was essential for the prosecution to have
stated in the particulars of the charge the intent with which
the accused possessed the forged documents.
Commented [SDQ217]: (1) A person possesses or does
an act with respect to a document knowing it is not genuine,
if that person possesses it, does an act with respect to it,
knowing that it was not in fact made or altered at the time,
or by the person, or with the authority or consent of the
person, at which or by whom or with whose authority or
consent, it purports or is pretended by that person to have
been made or altered; and it is immaterial whether the act
of the person who made or altered it was or was not a
criminal offence. (2) In like manner, a person possesses or
does an act with respect to a stamp, knowing it is not
genuine, if that person possesses it or does an act with
respect to it, knowing that it is in fact counterfeited or
falsified; and it is immaterial whether the act of the person
who counterfeited or falsified it was or was not a criminal
offence.
 if the person is dead or alive or a fictitious person;
or
– that the document has been so made or altered at a
different time from that at which it was in fact made
or altered.
Also, by Section 164(2), it is forgery to issue or use a document,
which is exhausted or cancelled, with the intent that it may pass
or have the effect as if it were not exhausted or cancelled. It is
also forgery if a person makes or alters a document in his own
name if he does so with the requisite mens rea of the offence of
forgery. Section 164(3)
However, by Section 164(4), it is not forgery if a person makes
or alters a document in a name which is not his real or ordinary
name unless he does so with the requisite men rea of the offence
of forgery.
UNLAWFUL ENTRY
Section 152 provides that, a person who unlawfully enters a
building with the intention of committing a criminal offence in
the building commits a second degree felony. To constitute
entry, it must be shown that either the whole or some part of
the body of the accused or an involuntary agent employed by the
accused entered the building. Therefore, to avoid a charge of
unlawful entry, no part of the body or any part of an employed
involuntary agent should enter the building. Thus, where in
breaking a window with the intent of stealing property in a

196 | P a g e
house, the accused’s finger went within the building, it was held
Commented [SDQ218]: The accused, a little boy pushed
to be sufficient entry – R v DAVIS his hand into the complainant’s shop who dealt with
jewelleries at close of work. He was apprehended and
From Section 13(1), a person who intentionally causes an charged with unlawful entry and stealing. HELD: on the
question as to whether there was a sufficient entry by the
involuntary agent to cause an event is deemed to have caused accused to warrant stealing, the court held that it did and
the accused’s insertion of his hand into the shop was
unlawful entry.
the event and this may include an animal or anything. Thus, a
person who pushes into a building, a stick or iron or any
instrument adapted to be able to take from an object from a
building without actually physically entering the building, will
still be guilty of unlawful entry.
According to Section 153, entry is unlawful if a person enters a
building where he has no lawful right to do so or where a person
enters a building without the consent of a person who is able to
give consent for the purpose for which the person enters. It may
be a defense if the accused entered the building under a mistake
or ignorance of fact in good faith.
Unlawful entry is not a strict liability offence – prove of the mens
rea is essential. It must be established that the accused so
entered the building with the intention of committing a crime.
KANJARGA v THE STATE
On a master’s return from work one day, he discovered that his
steward boy had disappeared and that some of the louvres of a
bedroom window had been broken leaving an opening in the
window. Money that he had kept in a locked drawer was no
longer there. The steward boy was later traced by the police to
his hometown in the Upper Region. He was arrested and charged

197 | P a g e
with stealing and unlawful entry. HELD: The court held that, To
establish the crime of unlawful entry, the prosecution must, in
addition to proving entry, prove that an intent to commit a crime
in the premises existed at the time of entry and was the purpose
for the making of the entry.
According to Section 154, where the accused, without actually
entering a building, is found, without lawful excuse, in
possession of a tool or an implement adapted or intended for
use in unlawfully entering a building, he will be held to have
committed a misdemeanor.
BEING ON PREMISES FOR UNLAWFUL PURPOSE
According to Section 155, a person who is found in or about a
market, wharf, jetty, or landing place, or in or about a vessel,
verandah, outhouse, building, premises, passage, gateway, yard,
garden or an enclosed piece of land, for an unlawful purpose,
commits a misdemeanor.
The actus reus of the offence is being found in or about a market,
wharf, jetty, landing place, vessel, verandah, outhouse, building,
premises, gateway, yard, garden, or an enclosed piece of land.
The mens rea is presence in or about such premises for an
Commented [SDQ219]: the appellant was seen coming
unlawful purpose. AMOAH v THE STATE from the complainant’s room in her absence. When
confronted, he said he was a washman and had gone to
The phrase “in or about” appears to suggest that the accused take clothes t wash. He was arrested and charged with
unlawful entry. HELD: It was held The essence of the charge
need not have actually entered the premises or building. of being on premises for an unlawful purpose under section
155 of Act 29 was the purpose for which the entry was
made; if the purpose was lawful then no offence was
Therefore, it seems that it is sufficient if the accused is found or committed. There was no evidence from which it could have
been inferred that even if the appellant did enter the house
it was for the purpose of stealing. Adler

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seen loitering or wandering about the premises for an unlawful
purpose. ADLER v GEORGE
TRESPASS
This offence is in relation to land. Trespass to land under Act 29
are of two types – the first type is entering upon land unlawfully
and the second type is entering upon land lawfully but
subsequently engaging in conduct which renders the continued
stay of the person on the land unlawful – sec 157
The first type of trespass include:
– unlawfully entering a piece of land in an insulting,
annoying or threatening manner
– unlawfully entering a piece of land after having been
forbidden to do so
– unlawfully entering and remaining on a piece of land
after having been required to depart from that land
The second type of trespass include:
– lawfully entering on a land but subsequently acting
in an insulting, annoying or threatening manner.
199 | P a g e
Commented [SDQ220]: under the Official Secrets Act,
1920, it was an offence to obstruct a member of the armed
forces in the vicinity of a prohibited place. The defendant
entered the Marham Royal Airforce station, which was a
prohibited place within the Act and obstructed a member of
the forces engaged in his duty. He argued that although he
was in a prohibited place, he was not within the vincinity of
that place. HELD: The court applying the Golden rule of
interpretation held that being in the vincinity of a premise
should be interpreted to mean in or near the prohibited
place and as such, the appellant was liable for unlawful
entry.
Commented [SDQ221]: A person who
(a)
unlawfully enters in an insulting, annoying or threatening
manner on land belonging to or in the possession of any
other person, or (b) unlawfully enters on land after
having been forbidden so to do, or (c) unlawfully
enters and remains on land after having been required to
depart from that land, or (d) having lawfully
entered on a land, acts in a manner that is insulting,
annoying or threatening, or
(e) having lawfully entered on a land, remains on
that land after having been lawfully required to depart from
that land, commits a criminal offence and is liable, on the
complaint of the owner or occupier of the land, to a fine not
exceeding twenty-five penalty units; and the Court may
order the removal from the land, by force if necessary, of a
person, an animal, a structure or a thing
 – lawfully entering a piece of land and remaining on
same after having been lawfully required to depart
from the land.
In all these cases, it must be shown that the accused is not the
owner or occupier of the land – therefore, the offence may not
lie if the accused is a lawful tenant or lessee or attorney or agent
of an owner or occupier. Section 156 defines owner or occupier.

OFFENCES INVOLVING DAMAGE TO PROPERTY

UNLAWFUL DAMAGE
This is what is usually referred to as arson, and it is committed in
relation to movable or immovable property. According to
Section 172(1), causing damage to property the value of which
damage does not exceed GHC100 or without a pecuniary value
is a misdemeanor. Causing damage to property the value of
which damage exceeds GHC100 is a second degree felony. NB:
the law is concerned with the value of the damage and not the
value of the property damaged – that is – the amount needed to
put the property to its former use, and unless the damage to the
property is proved to be irreparable the value of the damage
Commented [SDQ222]: The accused assaulted a police
cannot be said to be the value of the property in question. officer after the officer tried to arrest. The arrest was
unlawful. HELD: it was held The provisions of section 172 of
ASANTE v THE REPUBLIC. By Section 172(2), Causing damage to Act 29 deal with the value of the damage and not the value
of the property damaged and unless the damage to the
property in a manner which causes or is likely to cause danger to property is proved to be irreparable, the value of the
damage cannot be said to be the value of the property. To
life is a first degree felony. secure a conviction under this section it is necessary for the
prosecution to prove beyond reasonable doubt that the
damage was caused intentionally within section 11 (2) of
By sec 173, damage includes any of the following factors Act 29, and also without just cause or excuse. This they
failed to do.

200 | P a g e
 - damage to the matter of the thing
- interruption in the use of the thing
- interference with the thing by which it becomes
permanently or temporarily useless
- interference with the thing by which some expense
is necessitated to render the fit for the purpose to
which it is used or maintained

For liability to arise, the damage should have been caused

unlawfully – that is, without any legal justification
However, despite the general position of the law on mistake of
law, a person who causes damage, believing in good faith that
he is entitled so to do, is not liable for punishment. SECTION
174(5). Damage is also unlawful if the person causing it is liable
to a civil action or proceeding, or to a fine or other punishment
under an enactment,
– in respect of act causing the event
– in respect of the consequences of the act or event
– in which the accused would be liable if he caused the
event directly by a personal act
– in which the accused is liable to be restrained by
injunction or any other proceeding from doing the
act causing the event

201 | P a g e
By Section 174(3), a joint owner or a trustee of a thing may be
liable for damaging the thing. Then also the owner of a thing may
be liable for damaging the thing if he damaged the thing with
intent to injure, cause harm or to defraud another.
On another score, by Section 175(2), a person who is charged
with having attempted to cause damage to an amount, would be
not acquitted solely on the ground that what was actually
damaged was a lesser amount. The important consideration with
respect to the offence of unlawful damage is that the accused
should have caused the damage intentionally – thus,
unintentional (accidental) or damage caused through negligence
will not suffice.

NARCOTIC OFFENCES
Offences in relation to narcotic drugs are regulated by the
Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990
(PNDCL 236). In addition, Ghana is a signatory to the United
Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 1988, and is obliged to enact laws to
implement the provisions of the Convention.
PNDCL 236 prohibits dealings in narcotics under various
headings

About 97 substances – narcotic drugs – are prohibited under

Commented [SDQ223]: For the purposes of this Act, a
PNDCL 236. See sec 9 and the Schedule to the Act. The popular narcotic drug means any of the substances specified in the
Schedules whether in its natural or synthetic form.

202 | P a g e
ones include: cannabis also known as Indian hemp also known as
marijuana also known as ganja also known as wee also known as
weed also known as pot also known as “abonsam tawa”;
cocaine; heroin; morphine; opium and codeine.
Under sec 1 of PNDCL 236, it is an offence to import or export a
narcotic drug without a license issued by the Minister of Health
for that purpose. The penalty for the importation and
exportation of narcotic drugs is a term of imprisonment of not
less than 10 years
Sec 3 of PNDCL 236 prohibits the carrying on of business in
relation to narcotics and the penalty for doing so is a term of
imprisonment of not less than 10 years. Thus, it is an offence to
manufacture, produce or distribute narcotic drugs without
lawful authority. Then again, it is an offence to undertake an
activity for the purpose of establishing or promoting an
enterprise relating to narcotic drugs, without lawful authority.
The prosecution must establish not merely that the accused
cultivated plants for narcotic purposes, but also that the accused
had knowledge that the plant he cultivated can be used or
consumed as a narcotic drug or that a narcotic drug can be
Commented [SDQ224]: The appellants who were
extracted from it. NYAMENEBA v THE STATE members of a religious sect had been growing “herbs of
life” for four years or more. They used the herbs publicly for
Sec 5 of PNDCL 236 prohibits the use of narcotic drugs invocation, at their worship, for food and medicine. Upon
report being made to the police against the sect, the police
investigated and found the herbs to be Indian hemp. The
Thus, it is an offence to smoke, sniff, consume, inject into one’s appellants argued that they did not know at all that the
herbs were indian hemp. HELD: Ollennu JSC held that, While
body or administer a narcotic drug on one’s body, without lawful ignorance of the law is no defence, ignorance of fact is a
complete defence. He concluded that, the appellants were
authority or excuse. It is also an offence to inject another person honestly ignorant of the fact that the herbs in question are
Indian hemp and as such, a plea of ignorance of fact which
under section 29 (1) of Act 29 is a good defence.

203 | P a g e
with or administer narcotic drugs on another person without
lawful authority. The punishment for using narcotic drugs is a
term of imprisonment of not less than 5 years.
Sec 6 of PNDCL 236 prohibits the supply or purchase of narcotic
drugs. Thus, it is an offence to supply narcotic drugs to another
person, without lawful authority – this is known as drug
peddling. It is also an offence to buy narcotic drugs without
lawful authority. The penalty for supplying or purchasing
narcotic drugs is a term of imprisonment of not less than 5 years.
It should be noted that PNDCL 236 does not only prohibit dealing
in narcotic drugs, it also prohibits the possession of narcotic
drugs. By sec 2, it is an offence to have in one’s possession or to
have under one’s control, a narcotic drug without lawful
authority. The punishment for this is a term of imprisonment of
not less than 10 years. NB: possession in law is different from the
ordinary notions of possession. Ordinarily, you may possess a
thing without knowing or comprehending its nature. However,
in law, you do not possess the thing unless you know the nature
and quality of the thing. So, in law, possession connotes not only
physical possession but knowledge of the thing possessed.
Therefore, to succeed on a charge of possession of a narcotic
drug, the prosecution must prove legal possession – that is – in
addition to proving physical possession, the prosecution must go
further to lead evidence to establish that the accused had the
requisite knowledge. In other words, there must be an
awareness of the nature and quality of what is possessed,
204 | P a g e
namely, a narcotic drug, since physical possession, without that
requisite knowledge amounts to no offence. AMARTEY v THE
STATE, BONSU @BENJILLO v THE REPUBLIC.
There are two types of knowledge. There is what is termed
“implied knowledge” – one aspect of constructive knowledge is
where the evidence establishes that the accused ought to have
known that the thing he possessed was a narcotic drug. Then
there is what is termed “constructive knowledge” – a person will
be held to be in constructive possession if he has control over a
person who is in actual physical possession or control of the
thing. Therefore, there is no requirement that the prosecution
should prove manual possession or touch of the thing by the
accused. It is sufficient if the prosecution proves that the thing is
in the possession of a person over whom the accused has control
so that the thing will be forthcoming at his request.
MUNKAILA v THE REPUBLIC
the appellant engaged a woman to take some substances from
Nigeria to him in Ghana. The woman was intercepted by the
police for which she led them to the appellant’s house. When he
was given the parcel, he sniffed them and upon seeing the police,
he dropped them. The substance upon test was proven to be a
narcotic substance and he was convicted of possession of
narcotics. He appealed and argued that he had no possession of
the substance. HELD: A person was said to be in constructive
possession or joint possession of an object if he had control over
the other person in physical control of the article as to its
205 | P a g e
Commented [SDQ225]: the appellant was convicted for
possession of Indian Hemp. She contended that the parcel
was given to her by her boyfriend and was in the same state
till tore by the police. Held: As from 17 December 1963, to
sustain a charge under section 47 (1) of Act 64 the
prosecution must prove only possession with knowledge of
the nature and quality of the article possessed; there must
be an awareness that what is possessed is “opium or Indian
hemp” or “residue from the smoking of opium or Indian
hemp.” Physical possession without that knowledge is no
offence.
Commented [SDQ226]: to prove the charge of illegal
possession of drugs under section 2 of the Narcotic Drugs
(Control, Enforcement and Sanctions) Law, 1990 (PNDCL
236) the prosecution had to prove that the appellant not
only had physical possession but also knew of the nature
and quality of the contents of the parcel, namely heroin
because on the relevant authorities his mere physical
possession without the requisite knowledge would amount
to no offence. On the facts, the Court of Appeal was right in
making those justifiable inferences in coming to the
conclusion that the appellant had knowledge that the parcel
he possessed or had received into his possession contained
heroin
disposal, control or otherwise. However, the actual manual
possession or touch of the goods by the prisoner, was not
necessary to the completion of the offence. It was sufficient if
the prosecution could prove that the article was in the
possession of a person over whom the accused had control so
that the article would be forthcoming if he ordered it. Under
section 148(1) of the Criminal Code, 1960 (Act 29) a person
having possession of a narcotic drug was in the same position as
the person having possession of stolen proper
It should be noted that sec 7 of PNDCL 236 makes provision for
special mitigating factors whereby a lesser punishment may be
imposed on the accused having regard to the unaggravated
nature of the offence and any special circumstances relating to
the offence or offender. However, by Section 8, a recidivist
narcotic offender is liable to life imprisonment
Under sec 10, it is an offence to use property to promote or
facilitate narcotic offences. Indeed, possessing property or the
proceeds of property knowing that the property or the proceeds
was or were obtained or derived from dealings in narcotics in
Ghana or elsewhere, is also an offence
- sec 11
Then again, laundering proceeds from a narcotic drug offence is
prohibited
- sec 12

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Indeed, property which has been used for the commission of a
narcotic offence is liable to be confiscated to the state
- sec 13
And property acquired with the proceeds from an illegal dealing
in narcotic drugs may also be confiscated to the state
– secs 15-22

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