Contents

NATURE AND SCOPE OF CRIMINAL LAW....................................................................................... 1

DEFINITION........................................................................................................................................... 1
AMAND V HOME SECRETARY AND MINISTER OF DEFENCE OF ROYAL NETHERLANDS
GOVERNMENT [1943] AC 147, HL.................................................................................................. 1
RE CLIFFORD AND O'SULLIVAN (1921) 2 AC 570 at 580, HL..................................................... 2
PROPRIETARY ARTICLES TRADE ASSOCIATION v ATTORNEY-GENERAL FOR CANADA
[1931] AC310....................................................................................................................................... 2
NATURE OF CRIMINAL LAW..............................................................................................................3
b. COMMISSIONER OF POLICE V BELLO................................................................................. 4
SCOPE AND FUNCTIONS OF CRIMINAL LAW................................................................................ 5
PARKER v GREEN 121 ER 1084:.......................................................................................................8
GLAH AND ANOTHER v THE REPUBLIC [1992] 2 GLR 15....................................................... 8
PRINCIPLE OF LEGALITY................................................................................................................... 9
DEBRAH v THE REPUBLIC [1991 2 GLR517................................................................................10
TSATSU TSIKATA V. THE REPUBLIC 2003 2004 SCGLR............................................................12
HASSAN v. THE STATE [1962] 2 GLR 150....................................................................................13
THE RULE AGAINST DOUBLE JEOPARDY.................................................................................... 14
Article 19 (7) of the Constitution, 1992..............................................................................................14
CRIMINAL PROCEDURE ACT, ACT 30............................................................................................ 15
Section 113—Retrial...........................................................................................................................15
PUNISHMENT......................................................................................................................................... 15
DEFINITION......................................................................................................................................... 15
FLEMMING v. NESTOR [80 S. Ct. 1367 (1960)]............................................................................. 19
PURPOSE/AIMS OF PUNISHMENT...................................................................................................23
THEORIES OF PUNISHMENT – RETRIBUTIVE THEORY............................................................. 23
UTILITARIAN THEORY...................................................................................................................... 29
KWASHIE v THE REPUBLIC [1971] 1 GLR488, CA (Azu Crabbe, J.A)........................................30
JUSTIFICATION FOR PUNISHMENT................................................................................................ 35
R v GOULD [1968] 2 QB 65..............................................................................................................36
APALOO AND OTHERS v THE REPUBLIC [1975] 1 GLR 156-192............................................. 37
MELFA v. THE REPUBLIC [1974] 1 GLR 174-176.........................................................................38
ASAMOAH v. THE REPUBLIC [1973] 1 GLR 186......................................................................... 38
 KWADU v. THE REPUBLIC [1971] 1 GLR 272-28........................................................................ 39
HARUNA v. THE REPUBLIC [1980] GLR 189-192........................................................................40
ABU AND OTHERS v. THE REPUBLIC [1980] GLR 294-302.......................................................41
ADU BOAHENE v. THE REPUBLIC [1972] 1 GLR 70-78............................................................ 42
KWASHIE AND ANOTHER v. THE REPUBLIC [1971] 1 GLR 488-496.......................................43
DABLA AND OTHERS v. THE REPUBLIC [1980] GLR 501-520................................................. 44
G/CPL VALENTINO GLIGAH & ANOR v. THE REPUBLIC [06/05/2010] CRIMINAL APPEAL
NO. J3/4/2009.................................................................................................................................... 45
ELEMENTS OF CRIMINAL LIABILITY............................................................................................46
KILBRIDE V LAKE (1962) NZLR 590 at 593..................................................................................46
AWEDAM v THE REPUBLIC (1982-83) GLR 902, CA.................................................................. 48
STATE v OBENG & ORS (1967) GLR 91.........................................................................................50
REPUBLIC v TOMMY THOMPSON BOOKS & ORS (No 1) [1996-97] SCGLR 312...................51
REPUBLIC v MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH & ANOR (No 2) [1973] 2
GLR 445............................................................................................................................................. 51
R v GIBBONS & PROCTOR (1918) 13 CRIM. APP. 134................................................................ 52
REGINA v CHARLSON [1955] 1 W.L.R. 317.................................................................................. 52
BRATTY v A-G FOR NORTHERN IRELAND (1961) 46 CR. APP. R 1......................................... 53
REGINA v HENNESSY [1989] 1WLR 287, C A..............................................................................54
CAUSATION......................................................................................................................................... 56
SHAVE v ROSNER [1954] 2 QB 113................................................................................................ 56
WATKINS v O'SHAUGHNESSY [1939] 1 All ER 179.................................................................... 57
R v MICHAEL (1840) 9 Car & P 356; 173 ER 867........................................................................... 57
R v. CATO [1976] 1WLR 110............................................................................................................ 57
R v JORDAN (1956) 40 Cr. App. 152................................................................................................59
REPUBLIC v YEBOAH [1974] 1 GLR 268...................................................................................... 59
R v WILLOUGHBY 2005 CRIM. L.R. 389.......................................................................................60
SARIMBE alias OLALA v THE REPUBLIC [1984-86] GLR 117................................................... 60
IMPRESS (WORCESTOR) LTD v REES [1971] 2 All ER357......................................................... 61
R v BOREMAN AND ORS |2000| ALL E.R. 307. 2000 CRIM. L.R. 409 CA..................................61
R v WATERS (1834) 172 ER 1262.....................................................................................................62
DAGARTI v THE REPUBLIC [1992]-93 GBR 1002........................................................................62
R v THABO MELI [1954] 1 WLR 228..............................................................................................63
R v SMITH [1955] 2 QB 35............................................................................................................... 63
 R v DONOVAN [1934] 2 KB 498...................................................................................................... 64
R v INSTAN (1893) 1 QB 450........................................................................................................... 65
R v HOWARD [1965] 3 ALL ER 684................................................................................................66
TWUM v THE REPUBLIC [1967] GLR 724.................................................................................... 66
R v BLAUE [1975] 3 All ER 446.......................................................................................................67
R v MALCHAREK [1981] 1WLR690............................................................................................... 68
R v BASARE [1959] GTR321, CA.................................................................................................... 69
R v HOLLAND.................................................................................................................................. 69
R v DYSON [1908] 2 KB 454............................................................................................................69
R v NWAOKE (1939)5 WACA 120................................................................................................... 70
SECTION 4................................................................................................................................................ 70
ATTEMPT TO COMMIT CRIMINAL OFFENCE............................................................................... 70
R v WHITE [1910] 2 KB 124.............................................................................................................71
HAUGHTON v SMITH (1974) 58 Cr App Rep 198..........................................................................71
DAVEY v. LEE AND OTHERS (1967) 51 Cr. App. R. 303,305; [1968] 1 Q.B. 366,370................. 71
R v KHAN.......................................................................................................................................... 72
R v MCSHANE [1900] 2 QB 597...................................................................................................... 72
REPUBLIC v DARKO [19711] 2 GLR 227.......................................................................................73
BEATTY v GILLBANKS [1882] 9 QBD 308....................................................................................74
R v SHIVPURI [1987] AC 1.............................................................................................................. 74
DUA v THE STATE [1963] 2 GLR 385, SC...................................................................................... 75
PREPARATION FOR COMMITTING CERTAIN CRIMINAL OFFENCES....................................... 76
ABETMENT OF CRIMINAL OFFENCE............................................................................................. 76
EFFAH v THE REPUBLIC [1999-2000] 2 GLR 722........................................................................ 77
COP v. SARPEY & NYAMEKYE [1961] 2 GLR 756, SC................................................................ 77
DAVIES v DPP [1954] AC 378..........................................................................................................78
R v BRYCE [2004] Crim L R 936......................................................................................................78
R v CROFT [1944] KB 295................................................................................................................79
INSTIGATION /INCITEMENT.............................................................................................................79
R v ASSISTANT RECORDER OF KINGSTON-UPON- HULL; EX PARTE MORGAN [1969]
2 QB 58...............................................................................................................................................79
S v NKOSIYANA [1966] 4 SA 655................................................................................................... 80
COUNSELLING.................................................................................................................................... 80
 R v CALHAEM [1985] 2 WLR 826, CA........................................................................................... 80
PROCURING......................................................................................................................................... 81
A-G v ABLE [1984] 1 QB 795...........................................................................................................81
R v CREAMER [1966] 1QB72, CCA................................................................................................ 81
R v BAINBRIDGE [1960] 1 QB 129................................................................................................. 82
REGINA v ROOK: CACD 29 Jan 1993.............................................................................................82
REPUBLIC v TEMA DISTRICT MAGISTRATE GRADE I; EX PARTE AKOTIAH (1979] GLR
315...................................................................................................................................................... 83
AIDING..................................................................................................................................................83
THAMBIAH v R [1966] AC 37......................................................................................................... 83
NATIONAL COAL BOARD v GAMBLE [1959] 1 QB 11...............................................................84
ENCOURAGEMENT............................................................................................................................ 85
R v CLARKSON & ORS [1971] 3 All ER 344..................................................................................85
AMOAH v THE REPUBLIC [1989-90] GLR 266.............................................................................85
R v CONEY (1882) 8 QBD 534......................................................................................................... 85
OBENG v THE REPUBLIC [1971] 2 GLR107, CA..........................................................................86
SAYCE v COUPE [1953] 1QB1........................................................................................................ 86
R v DUNNINGTON [1984] 1 All ER 676......................................................................................... 86
IDDI v THE REPUBLIC [1980] GLR 623........................................................................................ 87
ABETMENT AND THE COMMISSION OF A DIFFERENT CRIMINAL OFFENCE...................... 88
TEYE alias BARDJO & ORS v THE REPUBLIC [1974] 2 GLR 438, CA.......................................88
AGYEMAN @ GEEMAN & NYAME @ JAGGERPEE v THE REPUBLIC No 7/98, CA
(Unreported), delivered on 19th November 1998............................................................................... 89
ARHIN ALIAS PALL MALL v THE REPUBLIC [1995-96] 1 GLR190, CA.................................. 89
DPP FOR NORTHERN IRELAND v MAXWELL [1978] 3 All ER1140.........................................90
R v SMITH (WESLEY) [1963] 1WLR 1200..................................................................................... 90
CHANG WING-SIU v R [1985] AC 168...........................................................................................90
R v KOFI ANTWI [1956] 1 WALR 29.............................................................................................. 91
CONSPIRACY.......................................................................................................................................91
BLAY v THE REPUBLIC [1968] GLR1040..................................................................................... 91
REPUBLIC v BOSSMAN & ORS [1968] GLR 595..........................................................................92
AZAMETSI & ORS v THE REPUBLIC [1974] 1 GLR 228, CA......................................................92
KAMBEY & ORS v THE REPUBLIC [1989-90] GLRD. 24, CA; affirmed, [1991] 1 GLR 235, SC..
93
 STATE v BOAHENE [1963] 2 GLR 554........................................................................................... 93
DOE v THE REPUBLIC [1999-2000] 2 GLR 32.............................................................................. 94
FOLI VIII AND OTHERS v. THE REPUBLIC [1968] GLR 768–773..............................................94
COMMISSIONER OF POLICE v. DIMBIE [1959] GLR 202-207................................................... 95
COMMISSIONER OF POLICE v AFARI AND ADDO [1962] 1 GLR 483, SC.............................. 96
STATE v OTCHERE & ORS [1963] 2 GLR 463............................................................................... 97
SOMCHAI LIANGSIRIPRASERT v GOVERNMENT OF USA & ANOR [1991] 1 AC 225......... 99
PUNISHMENT FOR CONSPIRACY....................................................................................................99
REPUBLIC v MILITARY TRIBUNAL: EX PARTE OFOSU- AMAAH & ANOR (NO 2) [1973] 2
GLR 445, CA......................................................................................................................................99
REPUBLIC v. MAIKANKAN AND OTHERS [1972] 2 GLR 502................................................. 100
ALLAN WILLIAM HODGSON v THE REPUBLIC [2009] SCGLR 76........................................101
JOHN DAVID LOGAN & ANOR. v THE REPUBLIC [2007-2008] SCGLR 76........................... 102
OFFENCES AGAINST THE SAFETY OF THE STATE........................................................................103
REPUBLIC v. YEBBI & AVALIFO [1999-2000] 2 GLR 50........................................................... 103
CRIMINAL RESPONSIBILITY OF CORPERATIONS......................................................................... 104
MOUSELLBROS. LTD v. LONDON AND NORTH WESTERN RLY CO. [1917]2KB 836.........104
TESCO SUPERMARKETS LTD v. NATTRASS [1971] 2ALL E.R 127........................................ 105
UNITED STATES v. BANK OF NEW ENGLAND, N.A - 821 F.2d 844 (1st Cir. 1987)................105
REPUBLIC V. BAYFORD [1973] 2 GLR 421.................................................................................106
R v. I. CR. HAULAGE LTD. [1944] K.B 55....................................................................................107
HL BOLTON (ENGINEERING) CO. LTD v. TJ. GRAHAM & SONS LTD [1957]1 Q.B 159...... 107
MARITIME OFFENCES......................................................................................................................... 108
PIRACY............................................................................................................................................... 108
R v ROSE & ORS (1846-48) 2 COX CC 329.................................................................................. 108
PUNISHMENT OF PIRACY........................................................................................................... 109
HIJACKING AND ATTACK ON INTERNATIONAL COMMUNICATIONS.................................. 109
TAKING LIQUOR ON SHIP...............................................................................................................109
USE OF FORCE FOR PRESERVING ORDER ON HOARD A VESSEL......................................... 110
ABETMENT OF MUTINY OR DESERTION, OR ASSAULT.......................................................... 110
ABETMENT OF INSURBODINATION BY SAILOR....................................................................... 111
MISCELLANEOUS OFFENCES............................................................................................................ 111
LETTERS, TELEGRAMS................................................................................................................... 111
 SENDING FALSE TELEGRAM......................................................................................................... 112
R v HORNER (1911-13)22COXCC 13................................................................................................112
ISSUE OF FALSE CHEQUES (INSERTED BY NRCD 160).............................................................112
SMUGGLING AND OTHER EVASIONS.......................................................................................... 113
SMUGGLING OF GOLD, DIAMOND (INSERTED BY NRCD 53, PARAGRAPH 3).................... 114
OFFENCES AGAINST PUBLIC WELL-BEING AND THE COMMONWEAL........................... 114
NARCOTIC OFFENCE.................................................................................................................... 115
AMARTEY v. THE STATE [1964] GLR 256.................................................................................. 115
NYAMENEBA v. THE STATE [1965] GLR 723.............................................................................115
BONSU ALIAS BENJILLO v. THE REPUBLIC [2000] SCGLR 112............................................115
REPUBLIC v. MUNKAILA [1996-97] SCGLR 445....................................................................... 116
LOGAN & LAVERICK v. THE REPUBLIC [2007-2008] 1 SCGLR 76.........................................117
ELLIS TAMAKLOE v. THE REPUBLIC [2011] 31 GMJ 1............................................................118
KAMIL v. THE REPUBLIC [2011] 30 GMJ 1................................................................................ 118
OFFENCES AGAINST PUBLIC MORALS....................................................................................... 119
R v THOMAS [1957] 2 All ER 342................................................................................................. 120
R v de MUNCK (1918-21) 26 COX CC 302....................................................................................121
Soliciting or Importuning for Immoral Purposes............................................................................ 121
Soliciting or Importuning by Prostitute............................................................................................121
HORTON v MEAD.......................................................................................................................... 122
Keeping a Brothel............................................................................................................................... 122
DPP v WHYTE & ANOR [1972] 3 All ER 12.................................................................................123
R v HICKUN & ANOR (1868) LR 3 QB 360 LC 371.....................................................................123
Further Offences Relating to Obscenity........................................................................................... 124
R v BOWDEN [2000] CRIM. L.R. 381........................................................................................... 124
R v MARTIN SECKER & WARBURG LTD [1954] 1 WLR 1138..................................................125
Indecent Inscriptions............................................................................................................................ 125
SPECIAL OFFENCES............................................................................................................................. 126
Causing Loss Damage and injury to property.......................................................................................126
THE REPUBLIC v TSATSU TSIKATA [2003-2004] 2 SCGLR 1068............................................ 127
THE REPUBLIC v IBRAHIM ADAM & ORS Suit No. FT/MISC 2/2000 decided on 28'"
April, 2003 (Unreported).................................................................................................................. 129
Importing Explosives............................................................................................................................129
 Using Public Office for Profit...............................................................................................................130
THE REPUBLIC v EUGENE BAFFOE BONNIE & 4 ORS, SUIT NO. CR/904/2017..................130
OFFENCES RELATING TO PUBLIC OFFICERS AND PUBLIC ELETIONS.............................131
Section 239—Corruption, etc. of and by Public officer, or Juror................................................... 131
Section 241—Explanation as to Corruption of Public Officer, etc....................................................... 132
APPIAH V THE REPUBLIC........................................................................................................... 132
BOATENG V THE REPUBLIC (1968) GLR 1027-2031................................................................ 133
COMMISSIONER OF POLICE v. SAWYER, WEST AFRICAN COURT OF APPEAL, 5 JUNE
1953, UNREPORTED...................................................................................................................... 133
Section 251—Deceiving a Public Officer.......................................................................................... 133
ASAGBA vs THE STATE................................................................................................................ 134
Section 256—Corruption Intimidation, and Personation in Respect of Election..........................134
Section 257—Definition of Intimidation........................................................................................... 134
Section 259—Explanation as to an Election..................................................................................... 134
DPP vs MILLS................................................................................................................................. 135
Section 237—Falsely Pretending to be Public Officer or Juror, etc..................................................... 135
OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE................................................... 135
Section 210—Perjury......................................................................................................................... 135
Section 218—Causing Person to Refrain from Giving Evidence on Criminal Trial.....................136
SAMUEL AGOE MILLS ROBERTSON VRS. THE REPUBLIC.................................................. 136
ELIKPLIM AGBEMAVA AND OTHERS VRS. THE ATTORNEY-GENERAL........................... 137
AMANIAMPONG V REPUBLIC (J3/10/2013)[2014] GHASC 163 (28 MAY 2014).................... 141
MARTIN KPEBU V. ATTORNEY GENERAL............................................................................... 142
REPUBLIC v. BAFFOE-BONNIE AND OTHERS.........................................................................143
DEFENCES..............................................................................................................................................144
PROVOCATION................................................................................................................................ 144
SABBAH v THE REPUBLIC.......................................................................................................... 146
BOAKYE v THE REPUBLIC [1999-2000] I GLR 740 – 760.........................................................146
ODURO v. THE STATE [1967] GLR 36-46.................................................................................... 147
R. v. KONKOMBA & ANOR. [1959] GLR 318-320...................................................................... 147
INSANITY.......................................................................................................................................... 148
McNAGHTEN’S CASE................................................................................................................... 148
R. v. MOSHIE [1959] GLR 343-347................................................................................................150
 WILLIAMS v. THE REPUBLIC [1984-86] 1 GLR 565-581...........................................................150
JUSTIFIABLE USE OF FORCE......................................................................................................152
YEBOAH v. THE STATE [1967] GLR 512 – 523........................................................................... 152
NARTEY v. THE REPUBLIC [1982-83] GLR 788-796..................................................................152
ASANTE v. THE REPUBLIC [1972] 2 GLR 177-197.................................................................... 153
ABEKA AND ANOTHER v. THE REPUBLIC [1980] GLR 438-446 – Reasonable Force Necessary
for Defence of Property or Possession..............................................................................................154
INTOXICATION................................................................................................................................155
KETSIAWAH v. THE STATE [1965] GLR 483-489........................................................................156
DPP V BEARD [1920] AC 479........................................................................................................156
AG FOR NORTHERN IRELAND V GALLAGHER [1963] AC 349.............................................157
AUTOMATISM.................................................................................................................................. 157
DOGO DAGARTI v. THE STATE [1964] GLR 653-655................................................................ 157
BRATTY V ATTORNEY GENERAL FOR NORTHERN IRELAND [1963] AC 386................... 158
CONSENT............................................................................................................................................158
COMFORT AND ANOTHER v. THE REPUBLIC......................................................................... 160
R v. CATO........................................................................................................................................ 160
R v. DONOVAN............................................................................................................................... 161
R v. BOLDUC AND BIRD.............................................................................................................. 161
RE T..................................................................................................................................................161
RE W (A MINOR)............................................................................................................................161
DPP v. MORGAN............................................................................................................................ 162
R v. BROWN.................................................................................................................................... 162
IGNORANCE OR MISTAKE OF LAW.............................................................................................. 162
R v. TOLSTON.................................................................................................................................162
NYAMENEBA AND OTHERS v. THE STATE.............................................................................. 162
FOLI VIII AND OTHERS v. THE REPUBLIC............................................................................... 163
R v. WHEAT AND STOCKS........................................................................................................... 163
OFFENCES RELATED TO ANIMALS.................................................................................................. 163
Taking and using cattle without consent of owner – section 299..........................................................163
Using horse with farcy or glanders in public way – section 301.......................................................... 163
Cruelty to animals – section 303.......................................................................................................... 163
OFFENCES AGAINST THE PERSON............................................................................................... 164
FATAL OFFENCES AGAINST THE PERSON..................................................................................164
MURDER.............................................................................................................................................164
GONJA(IDRISU) v. THE STATE [1964] G.L.R. 573, S.C.............................................................. 165
AKOM v. THE STATE [1966] GLR 454-473.................................................................................. 165
SARIMBE ALIAS OLALA v. THE REPUBLIC [1984-86] 2 GLR 13........................................... 167
BOSO v THE REPUBLIC (J3/2/2007) SUPREME COURT, 4 FEBRURARY 2009......................167
BOAKYE v THE REPUBLIC [1999-2000] I GLR 740 - 760..........................................................168
AWEDAM v. THE REPUBLIC [1982-83] GLR 902-912................................................................169
SERECHI & ANOR. v. THE STATE [1963] 2 G.L.R. 531, S.C...................................................... 170
Genocide (Inserted by Act 458)............................................................................................................171
MANSLAUGHTER............................................................................................................................. 171
R v MISRA and SRIVASTAVA (2005] Crim. L.R. 234................................................................... 171
R v ADOMAKO [1993] 4 ALL ER 935...........................................................................................172
AKERELE v. R. (1942) 8 W.A.C.A. 5............................................................................................. 172
STATE v. KWAKU NKYI [1962] 1 G.L.R. 197...............................................................................173
KOFI ESSEL v. THE STATE [1962] 1 GLR 397-401......................................................................173
R. v. BATEMAN [1926-30] 28 COX C.C. 33.................................................................................. 174
STATE v. TSIBA [1962] 2 G.L.R. 109, S.C..................................................................................... 174
BERKO v. THE REPUBLIC [1982-83] G.L.R. 23, C.A.................................................................. 174
R. v. AWONU (1946) 12 W.A.C.A. 95.............................................................................................175
REG. v MITCHELL [1983] Q.B. 741.............................................................................................. 175
INTENTIONAL MURDER REDUCED TO MANSLAUGHTER......................................................175
R v FRANKLIN (1883) 15 Cox CC 163.......................................................................................... 176
SENE AND ANOTHER v. THE REPUBLIC [1977] 1 GLR 434-440............................................ 176
KONTOR v THE REPUBLIC [1987-88] 1 GLR 324...................................................................... 177
R. v. CHIMA (1944) 10 W.A.C.A. 223............................................................................................ 178
SUICIDE.............................................................................................................................................. 178
R v CROFT [1944] 1 KB 295...........................................................................................................178
McSHANE v R (1977) 66 Cr. App R 97.......................................................................................... 178
CHILD AS THE OBJECT OF HOMICIDE.........................................................................................179
ATTORNEY-GENERAL'S REFERENCE (No 3 of 1994) [1996] QB 581, CA.............................. 179
R v WEST (194S) 2Car & K784; 175 ER 329................................................................................. 180
ABORTION OR MISCARRIAGE (Amended by PNDCL102)........................................................... 180
 R v HOLLIS & ANOR (1873) 28 LT 455........................................................................................ 180
R v TITLEY (1877-82) 14 COX CC 502......................................................................................... 181
OBENG v THE REPUBLIC [1971] 2 GLR 107, CA.......................................................................181
ROYAL COLLEGE OF NURSING OF UNITED KINGDOM v DEPARTMENT OF HEALTH &
SOCIAL SECURITY [1981] AC 800.............................................................................................. 182
R v BOURNE [1938] 3 All ER 615..................................................................................................182
R v SMITH (JOHN) [1974] 1 All ER 376........................................................................................182
BOATENG v THE STATE [1964] GLR 602.................................................................................... 184
DONKOR v THE REPUBLIC [1974] 2 GLR 254........................................................................... 185
NON FATAL OFFENCES AGAINST THE PERSON.............................................................................185
RAPE....................................................................................................................................................185
QUEEN v PAPADIMITROPULOUS (1957) 98 CLR 249 (Aus).....................................................185
KAITAMAKI v R [1984]3 WLR 137...............................................................................................186
R v FLATTERY (1874-77) 13 COX CC 388................................................................................... 186
R v LINEKAR [1995]3 AII ER 70................................................................................................... 186
R v MARSDEN (1890-95) 17 COX CC 297....................................................................................186
G/CPL VALENTINO GLIGAH & ANOR v. THE REPUBLIC [06/05/2010] CRIMINAL APPEAL
NO. J3/4/2009...................................................................................................................................187
DEFILEMENT..................................................................................................................................... 188
REPUBLIC v YEBOAH [1968] GLR 248....................................................................................... 188
CARNAL KNOWLEDGE................................................................................................................... 189
R v PRESSY (1864-67) 10 COX CC 635.........................................................................................189
INDECENT ASSAULT........................................................................................................................189
ALAWUSA v. ODUSOTE (1941) 7 W.A.C.A. 140......................................................................... 189
BOLDUC & BIRD v. QUEEN (1967) 63D.L.R. (2d) 82................................................................. 190
R v SARGEANT [1997] Crim LR50, CA........................................................................................ 190
DPP v ROGERS [1953] 2 AH ER644.............................................................................................. 190
R v MASON (1968) 53 Cr App Rep 12............................................................................................191
UNNATURAL CARNAL KNOWLEDGE.......................................................................................... 191
ATTORNEY-GENERAL'S REFERENCE NO. 19 OF 1992 (R v S) (19931 Crim ER 82...............192
R v ALLEN (1848-50) 3 COX CC 270............................................................................................ 192
INCEST................................................................................................................................................ 192
R v CARMICHAEL (1939-40)31 COXCC409................................................................................192
R v de MUNCK (1918-21) 26 COX CC 302....................................................................................193
 DRURY (ALFRED) v R (1975) 60 CAR 195.................................................................................. 193
NON-SEXUAL AND NON-FATAL OFFENCES AGAINST THE PERSON........................................ 193
UNLAWFUL ASSAULT..................................................................................................................... 193
86. Assault and battery......................................................................................................................... 193
R v HARE (1934-39) 30 COX CC 64.............................................................................................. 193
COMFORT & ANOR v THE REPUBLIC [1974] 2 GLR 1.............................................................194
HAYSTEAD v CHIEF CONSTABLE OF DERBYSHIRE [2000] 3 AII ER 890............................194
R v WALKDEN (1845) 1 COX C.C. 282.........................................................................................195
ASANTE v. THE REPUBLIC..........................................................................................................195
AMPOFO v. THE STATE [1967] GLR 155-167.............................................................................. 196
DPP v. K (A MINOR) [1990] 1 WLR 1067..................................................................................... 197
R v ST GEORGE [1840] 9 C&P 483............................................................................................... 197
87. Assault without actual battery........................................................................................................ 197
BRUCE-KONUAH v THE REPUBLIC [1967] GLR 611............................................................... 197
88. IMPRISONMENT..........................................................................................................................198
ASANTE v. THE REPUBLIC [1972] 2 GLR 177-197.................................................................... 198
CRIMINAL HARM TO THE PERSON.............................................................................................. 199
R v NWAOKE (1939)5 WACA 120................................................................................................. 199
BROBBEY& ORS v THE REPUBLIC [1982-83] GLR608............................................................ 200
R v CLARENCE 22 QBD 23 [1886] ALL ER 133.......................................................................... 200
R v IRELAND 1997 Crim LR434.................................................................................................... 201
CAUSING HARM WITH THE USE OF AN OFFENSIVE WEAPON..............................................201
REPUBLIC v DARKO [1971] 2 GLR 227...................................................................................... 201
BEHOME v THE REPUBLIC [1979] GLR 112.............................................................................. 202
NEGLIGENTLY CAUSING HARM TO CHILDREN – SECTION 72.............................................. 204
R v SENIOR (1898) 19 COX C.C. 219............................................................................................ 204
MAMAH HAUSAH v. THE REPUBLIC [1973] 2 GLR 293.......................................................... 204
OKUTU v. THE REPUBLIC [1975] 1 GLR 264-267...................................................................... 205
R v STONE and DOBINSON (1977) 64 Cr. App. R. 111................................................................ 206
BIGAMY AND OTHER SIMILAR OFFENCES.................................................................................... 206
Definition of Bigamy............................................................................................................................206
Quaye v. Kuevi (1934) D. Ct............................................................................................................ 206
R v. Sarwan Singh.............................................................................................................................207
OFFENCES AGAINST THE PEACE..................................................................................................... 207
Asante v. The Republic [1972] GLR 177......................................................................................... 207
Beatty v. Gillbanks [1882] 9 QBD 308.............................................................................................208
Hindering Burials....................................................................................................................................208
Hindering burial of dead body.............................................................................................................. 208
FOLI VIII & ORS. V THE REPUBLIC [1968] GLR 768............................................................................ 208
Unwholesome food...................................................................................................................................208
Selling unwholesome food................................................................................................................... 208
Noxious Trade (Amended by Act 554, section J 8; Schedule) Carrying on of noxious trade, and other
interference with public rights.................................................................................................................209
Explanation as to carrying on of noxious trade.................................................................................... 209
Drunken, Riotous and Disorderly Conduct.........................................................................................210
Habitual drunkenness...........................................................................................................................210
Drunk or disorderly (amended by NLCD 398, paragraph 18)................................................................210
Penalty for harbouring thieves............................................................................................................. 210
Drumming and Firing Guns.................................................................................................................. 211
Using houses, in town for drumming.................................................................................................... 211
Drumming near Court during sitting....................................................................................................211
Drumming with intent to challenge or insult........................................................................................ 211
Nuisances and Obstructions (Amended by Act 554, section 18; Schedule; affected by Act 572,
Schedule 2)............................................................................................................................................... 212
Throwing rubbish in street....................................................................................................................212
MATTHEWS & ORS v R (1934-39) 30 COX CC 27............................................................................... 212
BULLEY-NEEQUAYE v THE STATE [1965] GLR 424.............................................................................. 213
EVANS v EWELS [1972] AIIER22........................................................................................................ 214
Rubbish found in front of premises...................................................................................................... 214
IRELAND v THE REPUBLIC [1975] 2 GLR 16....................................................................................... 214
Disturbing the peace in a public place................................................................................................. 214
BOSUO v TIIE REPUBLIC [1975] 1 GLR379.........................................................................................215
REPUBLIC v NANA OKYERE DARKWA 11 [1992-931 GBH. 1631, CA..................................................215

SECTION 1
NATURE AND SCOPE OF CRIMINAL LAW

DEFINITION

a. The Criminal and Offences Act, Act 29, section 1:

"Crime" means any act punishable by death or imprisonment or fine;

“Offence" has the same meaning as crime;

AMAND V HOME SECRETARY AND MINISTER OF DEFENCE OF ROYAL

NETHERLANDS GOVERNMENT [1943] AC 147, HL
FACTS: A Netherlands subject, who had resided in England for fourteen years, was arrested as
an absentee without leave from the Netherlands army in Great Britain, in which he was an
ordinary conscript, and taken before a magistrate with a view to his being handed over to the
Netherlands military authorities. The Divisional Court refused his application for a writ of
habeas corpus.

HELD PER THE HOUSE OF LORDS, Viscount Simons LC: "My Lords, the House has already
announced and put into effect its unanimous decision that this appeal should be dismissed, for
there were good public reasons why this conclusion should be promptly known... "If the matter is
one the direct outcome of which may be trial of the applicant and his possible punishment for an
alleged offence by a court claiming jurisdiction to do so, the matter is criminal..; that a cause or
matter is criminal in nature if it is one which if carried to its conclusion might result in the
conviction of a person charged and in a sentence of some punishment.
LORD WRIGHT: ".. .The principle which I deduce from the authorities ... is that if the cause or
matter is one which, if carried to its conclusion, might result in the conviction of the person
charged and in a sentence of some punishment, such as imprisonment or fine, it is a Criminal
cause or matter.' The person charged is thus put in jeopardy. Every order made in such a cause or
matter by an English court, is an order in a criminal cause or matter, even though the order, taken
by itself, is neutral in character and might equally have been made in a cause or matter which is
not criminal. The order may not involve punishment by the law of this country, but if the effect
of the order is to subject by means of the operation of English law the persons charged to the
criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes
being considered, an order in a criminal cause or matter. . .

ARTICLE 19 (11) OF CONSTITUTION, 1992:

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

RE CLIFFORD AND O'SULLIVAN (1921) 2 AC 570 at 580, HL

FACTS: Martial law had been imposed in four counties in Ireland as a result of some subversive
activities that had taken place there. The rules under the martial law regime forbade the carrying
of arms and ammunition on pain of death upon conviction by a military court. The appellants
were civilians who were arrested with some amis and ammunition. They were convicted by a
military court and sentenced to death, which sentence was subject to confirmation. An
application was made for a writ of prohibition to prohibit the military court from further
proceeding with the matter. The application was refused, and on appeal to the House of Lords, a
preliminary objection was taken that the court did not have jurisdiction, since the issues involved
a criminal cause or matter.
HELD: per VISCOUNT CAVE:
"... No doubt that decision was given in a cause or matter, such matter consisting of the
application to the learned judge for a writ of prohibition; but in order that a matter may be a
criminal cause or matter it must, I think, fulfil two conditions which are connoted by and implied
in the word 'criminal.' It must involve the consideration of some charge of crime, that is to say, of
an offence against the public law (Imperial Dictionary, tit. 'Crime' and 'Criminal'); and that
charge must have been preferred or be about to be preferred before some Court or judicial
tribunal having or claiming jurisdiction to impose punishment for the offence or alleged
offence."

PROPRIETARY ARTICLES TRADE ASSOCIATION v ATTORNEY-GENERAL FOR

CANADA [1931] AC310
FACTS: A local statute prohibited the formation of combines. The prohibition carried penal
consequences. The question was whether the particular statute was a penal one.
HELD, 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
Per Lord Atkin:
"Criminal law connotes only the quality of such acts or omissions as are prohibited under
appropriate penal provisions by authority of the State. The Criminal quality of an act cannot be
discerned by intuition: nor can it be discovered by reference to any standard but one: Is the act
prohibited with penal consequences? Morality and criminality are far from coextensive; 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. It appears to their Lordships to be of little value to seek to confine
crimes to a category of acts which by their very nature belong to the domain of’ criminal
jurisprudence'; for the domain of criminal jurisprudence can only be ascertained by examining
what acts at any particular period are declared by the State to be crimes, and the only common
nature they will be found to possess is that they are prohibited by the State and that those who
commit them are punished."

NATURE OF CRIMINAL LAW

BENTHAM J: OF LAWS IN GENERAL, H L A HART (ed) (1970), chaptXVII,pp 209-211 -
DIVISION OF THE LAWS INTO CIVIL AND CRIMINAL
Thus much concerning the meaning of the word penal when applied to a branch of law, and put
in opposition to the word civil. But there is another word, the word criminal, which is also put in
contradiction with the word civil and which at the same time is in many cases used
interconvertibly with the word penal. In some cases, that is, but perhaps not in all. Therefore,
although no very explicit line of distinction is to be drawn between the civil branch and the
penal, may not there however be a line somewhat more explicit drawn between the civil branch
and the criminal? Let us see then what is to be understood by the word criminal as applied to a
branch of law.
The criminal branch of law is that which concerns crimes. What then do we mean by crimes? Do
we mean offences? But we have seen that there is no law whatsoever which does not terminate in
the creation of an offence. If the word criminal then is to distinguish the branch of law it is
applied to from any other, it is only some particular class of offences that can be meant by the
word crimes. I know of but three circumstances that seem ever to have served as marks to
distinguish them from other offences: 1. the magnitude of the mischief they occasion or are
thought to occasion. 2. the quantum of displeasure or disapprobation which is annexed, or
thought to be annexed to them by the community in general. 3. the punishment annexed to them
by the law. An offence is spoken of as a crime, sometimes under the notion of its being very
mischievous, sometimes because it is very odious, sometimes because the punishment for it is
very heavy. The circumstances are apt not un frequently to concur in one and the same offence:
more especially on account of the tendency which the one of them has to produce the other. The
notion of an act's being mischievous is one cause at least, as it ought to be the only cause, which
makes it odious: and its being odious is perhaps the most frequent though never otherwise than
the improper cause of its being made punishable As to the magnitude of the punishment, it is
evident that from this circumstance no mark of distinction can be taken to separate one division
of offences from another for the present purpose. For the business here is to consider in the first
place what the offences are in themselves, and it is from thence that we are afterwards to
determine what treatment ought to be given to them. As to the treatment actually given to them,
this as everyone knows is in great measure different in different countries; so that it never can
come under anyone single description whatsoever.
The degree of popular odium under which an offence is also in a high degree variable, to
say nothing of the difficulty of measuring and collecting it.
The degree of mischievousness of an offence though liable to some variation is however
liable to less variation than either of those other circumstances.
It has been already observed that these circumstances are found frequently to attach in
conjunction upon an offence: as it were to be wished they always did. It is not indeed without
some force put upon language and some appearance at least of impropriety that an offence can be
called a crime if anyone of them be wanting. If it be mischievous without being odious, if it be
not proportionably odious, you would scruple to call it a crime for fear of being understood to
represent it in the light of an offence which was actually odious; a fact which by the supposition
is not true. Are you persuaded of its being odious, without looking upon it as mischievous, you
would not without reluctance be willing to call it a crime lest you should be understood to
represent it as being mischievous, and thereby join in increasing an odium which you look upon
as unjust. Were the case even such that you deemed it mischievous at the same time that you
were sensible of its being odious, yet if it were not treated with severity by the laws, you would
scarce perhaps think yourself warranted in point of verbal accuracy in speaking of it as a crime.
To call it a crime would seem to be a trick of oratory.

b. COMMISSIONER OF POLICE V BELLO [1961] GLR (pt 11), 647 SC

FACTS: The appellant prepared some documents for the complainant who was illiterate and
charged an amount of money for the services rendered. Appellant however issued a receipt for a
lesser sum and was subsequently convicted of stealing.
HELD, per Crabbe JSC:
The appellant obviously had the penalty under the Illiterates Protection Ordinance in mind when
he strenuously denied that he received the sum of G£3 10s. from the complainant as
remuneration for preparing the documents. He maintained that he charged only ten shillings for
his services and issued a receipt, exhibit B, for that amount. We are, however, satisfied that there
was ample evidence on record to sustain the allegation that the complainant paid the sum of G£3
10s. to the appellant on the 17th September, 1960...
There can be no doubt in this case that the appellant knew that the charge of G£3 10s. was in
contravention of the Illiterates Protection Ordinance and it was solely for that reason that he
issued a receipt for a lesser sum often shillings to the complainant. The complainant was not
aware of his protection against unscrupulous letter-writers, but as soon as he became aware that
he had been cheated he wrote to the appellant demanding a refund of the money he had paid for
the preparation of the documents. But, as Alderson B., pointed out in R v Stewart "If the owner
of goods parts with the possession, he meaning to part also with the property, in consequence of
a fraudulent representation of the party obtaining them, it is not larceny, but a mere cheat". In our
view it is only a cheat all the same where the thing parted with is money...
In this case the appellant, a letter-writer by profession, agreed to prepare documents for the
complainant in consideration for a promise by the complainant to pay him G£3 10s. for his
services. These facts in our view constituted a simple contract between the complainant and the
appellant under which the complainant was bound to pay the agreed sum to the appellant as soon
as the preparation of the document was completed. It was in pursuance of this agreement
therefore that the complainant made an out-and-out payment of G£3 10s. to appellant and there
can be no doubt on the evidence that it was the intention of the complainant that the appellant
should become the owner of the money forthwith...
We did not think that the sum of G£3 1 Os. was obtained by the appellant by trick; it was paid
under a valid contract, and if the complainant consented to give it to the appellant in the belief
that that was the lawful fee to pay then whatever intent to defraud might have been in the mind
of the appellant, the crime of stealing was not committed...
We are of the opinion that the facts of this case do not support a charge of stealing of any kind
and that the trial circuit judge erred in treating "that which affords good ground for a civil claim
as constituting a criminal offence".

SCOPE AND FUNCTIONS OF CRIMINAL LAW

CRIME AND MORALITY:
c. In Commissioner of Police v Bello [1961] GLR 647 the court refused to uphold the
legality of a criminal conviction merely because the appellant had tried to cheat the
victim on account of his illiteracy. The court was of the opinion that although the act
complained of amounted to cheating, it could not form the basis of a criminal
prosecution. (cheating is not a crime even though is a matter of morality.)

Acts that are mala in se and acts that are mala prohibita - THE GENERAL PART OF
CRIMINAL LAW VOLUME I BY HENRIETTA J.A.N MENSA-BONSU
acts that are wrong in themselves (mala in se), i.e. acts that constitute breaches of moral rules and
are also criminal, such as murder, stealing, rape etc. and acts mala prohibita, i.e. acts that are not
moral wrongs, but which are criminal only because they are prohibited by statute, such as
breaches of road traffic regulations or illegal possession of firearms.
 Acts that are wrong in themselves are those for which guilt is proved only if done with a
blameworthy state of mind. The recognition that man is a moral agent capable of making
choices leads the law to take the position that a person is deserving of punishment only if the
wrongful act has been done by the exercise of free will. Therefore for crimes that are mala in
se, there is a general requirement of proof of mens rea, i.e. a blameworthy state of mind,
before a person would be liable to be punished. Offences that are mala prohibita do not
require this blameworthy state of mind. This is because there are no connotations of moral
failure when one is unable to observe the rules. Therefore liability for those offences tends to
be strict since the aim of the law is to prohibit the doing of those acts for some societal
purpose. The distinction between the two is thus important because it dictates the
determination of when punishment has been earned in specific circumstances.

ALLEN, CARLETON KEMP: THE NATURE OF A CRIME (1931) 13 JP Comp Leg (3rd
series) 1, pp 13-25
Two Aspects of Criminal Liability - Intrinsic Wrongfulness and Social Expediency. - This last
consideration suggests that there is something more in the notion of crime than a mere breach of
a legal rule. There is a strong element of morality in the wrongfulness of crime, and upon that
moral element depends, in no small measure, the "public" aspect of crime - the belief that crime
is an offence not merely against one but against all. Throughout the whole jurisprudence of crime
we can distinguish two powerful currents of quite different natures, springing from different
sources. They are the two elements of intrinsic wrongfulness and social expediency. The first is, I
believe, historically the elder, though concerning that question there is much controversy and
little certainty; but of the two, in modern societies the principle of social expediency is that
which predominates. That is to say, although intrinsic wrongfulness, in the moral sense, is a
characteristic of many crimes (as it is of many torts), they are punished not merely because they
are wrongful, but because they are wrongful in a degree which is a menace to society. On the
other hand, there are many prohibitions of criminal law which have nothing to do with intrinsic
rightfulness or wrongfulness; they are prompted by considerations of social expediency more
artificial and less self-evident than the prohibition of the more elementary forms of wrongful
aggression. The existence of these two very different classes of offences has led to the
troublesome distinction between those crimes in which the mens rea is rea in the ordinary moral
sense, and those in which it consists merely in having done the forbidden thing. In the latter class
of offences, mens rea, in its native meaning, becomes little more than a fiction. Blackstone
has a good deal to say of the distinction between these two kinds of ills. Crimes and
misdemeanours, he tells us, such as murder, theft and perjury, are mala in se because they
"contract no additional turpitude from being declared unlawful by the inferior legislature." (He
means by the "inferior" legislature simply the human lawgiver, the "superior" lawgiver being the
Deity Himself). But the lesser, or artificial, kind of mala are very different in nature and effect.
"In relation to those laws which enjoin only positive duties, and forbid only such things as are
not mala in se, but mala prohibita merely,

PACKER, H: THE LIMITS OF THE CRIMINAL SANCTION, Stanford (1969) chpt 14, pp
261-264
Immorality: A necessary condition
The debate over the relationship between law and morals is perennial. The criminal sanction
represents a very special kind of law, itself morally hazardous... The question we now have to
face is what role, if any, the moral force of the criminal sanction should have in determining
what conduct should be treated as criminal... To begin with, the principles of selection we use in
determining what kinds of undesirable conduct to treat as criminal should surely include at least
one that is responsive to the basic character of the criminal sanction. i.e. its quality of moral
condemnation. To put it another way, we should use the strengths of the sanction rather than
ignore or undermine them. If the conduct with which the original sanction deals is already
regarded as being morally wrong, the processes of the criminal law have, so to speak, a "leg up"
on the job... If the criminal sanction is widely used to deal with morally neutral behaviour, law
enforcement officials are likely to be at least sub-consciously defensive about their work, and the
public will find the criminal law a confusing guide to moral or even acceptable behaviour.
The question remains: whose morality are we talking about? It is easy to slide into the
assumption that somewhere in society there is an authoritative body of moral sentiment to which
the law should look. That assumption becomes particularly dangerous... when it is used to
buttress the assertion that the immorality of a given form of conduct is a sufficient condition for
declaring that conduct to be criminal. . . [T]he criminal sanction should ordinarily be limited to
conduct that is viewed, without significant social dissent, as immoral. The calender of crimes
should not be enlarged beyond [a] point and, as views about morality shift, should be contracted.

1957, the Report of the Departmental Committee on Homosexual Offences and

Prostitution, the Wolfendon Report (after its chairman Lord Wolfendon
the function of the criminal law is to:
● preserve public order and decency
● protect the citizen from what is offensive or injurious
● provide sufficient safeguards against exploitation and corruption of others, particularly
those who are specially vulnerable because they are young, weak in body or mind,
inexperienced, or in a state of special physical, official or economic dependence
the American Law Institute’s Model Penal outline on functions of criminal law:
● To safeguard conduct that is without fault from condemnation as criminal
● To give fair warning of the nature of the conduct declared to be an offence
● To differentiate on reasonable grounds between serious and minor offenses

PARKER v GREEN 121 ER 1084:

FACTS: The appellant was granted a licence empowering him to keep an inn and ale house. The
licence stipulated that the appellant should not knowingly permit or suffer persons of notoriously
bad character to assemble and meet together at his premises. On one night, 14 prostitutes
assembled at appellant’s premises and he was charged for breaching the stipulation in the licence.
The issue was whether the prostitutes were persons of notoriously bad character.
HELD, per Crompton J:
the prostitutes were persons of notoriously bad character and since the 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 connected with their vocation as prostitutes, the
appellant was liable.

GLAH AND ANOTHER v THE REPUBLIC [1992] 2 GLR 15

FACTS: The appellants were arraigned before the District Court Grade II, Kpando on a charge of
conduct conducive to a breach of the peace contrary to section 207 of the Criminal Code, 1960
(Act 29) . The case for the prosecution was that the first appellant had an affair with both his
mother-in-law and his sister-in-law (the other appellants). They pleaded guilty to the charge and
were convicted and sentenced to prison terms and a fine respectively. On their appeal against
their conviction and sentence, counsel for the appellants contended that having an affair with a
mother-in-law or a sister-in-law did not constitute an offence. Accordingly, the magistrate should
not have accepted the plea of guilty. Counsel for the Republic however supported the conviction
on the grounds that the chief and elders of the appellants’ village and others had warned the
appellants to desist from their immoral acts and association but they had not paid any heed to the
warnings, and that if members of the family of the women had not exercised restraint, serious
breach of the peace would have been caused. The court found on the evidence that the first
appellant had lived peacefully with the three women for over seventeen years and had had two
children with each of them.
HELD, per AMUAH J:
under the provisions of section 207 of the Criminal Code, 1960 (Act 29) the offence of conduct
conducive to the breach of the peace could only be committed at a public meeting or in a public
place. But in the instant case, the acts of the appellants complained of were committed away
from the public’s eye. Therefore, notwithstanding the fact that customary law frowned upon such
conduct, it was not caught by any section of Act 29 and the family cannot take an easy line of
things by pursuing their own criminal actions. Furthermore, since on the evidence the first
appellant had lived peacefully and cohabited with the three spouses for over seventeen years, if
opposition from the family was now feared, then it was the family which should be restrained.

CASE: BROWN v ALL WEATHER MECHANICAL GROUTING CO. LTD. [1953] 1 ALL
ER 474
FACTS: The appellant, a road inspector, preferred a charge against the respondents to the
effect that they had committed an offence under an enactment. He claimed that the
respondents had breached a provision of the said enactment when they allowed their vehicle
to be used for purposes other than what it had been licensed for. The respondents contended
the said enactment did not make their act one punishable on summary conviction. Hence the
respondents could not be convicted on the charges so preferred on them and that if at all there
had been was a breach of the regulations of the licensing authority, the appropriate remedy
was by way of an excise penalty against the party liable. The Court held in favor of the
respondents. The appellant therefore appealed.
HOLDING: A breach of an enactment prescribing only a penalty as a sanction is not a
criminal offence
Per LORD GODDARD, C.J: “A failure to do something may be described as an offence
although Parliament imposes in respect of it, not a criminal sanction, but a mere pecuniary
sanction which is recoverable as civil debt. In A-G v BRADLAUGH, it was held that where a
penalty is imposed for doing a particular act, the penalty is the only sanction and the
imposition of the penalty if it is the only consequence does not make the prohibited act a
crime.”

PRINCIPLE OF LEGALITY
Article 19 (5) of the Constitution, 1992
A person shall not be charged with or held to be 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."
This principle is encapsulated in the Latin maxim nullum crimen, nulla poena sine lege praevia
lege poenali – shortened to nullum crimen, nulla poena sine lege - No crime is committed and no
punishment can be imposed without the act having been prohibited and the punishment having
been prescribed by a law enacted before the act was committed
Section (8) of CRIMINAL AND OFFENCES ACT, ACT 29
No person shall be liable to punishment by the common law for any act.

DEBRAH v THE REPUBLIC [1991 2 GLR517

It is provided by section 53(a) of the Chieftaincy Act, 1971 (Act 370) that:
“53. Any person who- (a) knowingly uses disrespectful or insulting language or offers any insult
whether by word or conduct to a Chief, shall be guilty of an offence ...”
#FACTS: The accused, a mason, was seen by K collecting some stone particles on the road in
front of the palace of the chief of Kadjebi one early morning in July 1990. K thereupon lodged a
complaint with the linguist to the chief regarding the conduct of the accused, which was
allegedly against Kadjebi custom. The linguist in turn reported the matter to the chief of Kadjebi
who together with some elders held an arbitration over the complaint. At the arbitration, the
accused explained that he intended to use the stone particles to manufacture grinding stones as a
means of earning his livelihood. The accused was nevertheless found liable and ordered by

the chief and elders to pay four bottles of schnapps, one live sheep and a pot of palm wine. The
accused, without speaking through the linguist, announced to the chief and elders that he would
not pay the fine and thereafter was said to have left the palace without permission. In
consequence, the linguist to the chief of Kadjebi reported the conduct of the accused to the police
who investigated the matter and subsequently arraigned the accused before the district magistrate
court on a charge of insult to the chief of Kadjebi by way of conduct. At the trial, the linguist (as
the first prosecution witness) testified that the offence of the accused consisted in his (i) refusing
to talk through the linguist but speaking to the chief directly; (ii) leaving the palace without
asking for leave from the linguist as custom demanded; and (iii) picking stones in front of the
chief’s palace without permission. The linguist nevertheless conceded in his evidence that the
conduct of the accused in leaving the palace without permission constituted an offence against
Kadjebi custom only; and K (as the second prosecution witness) corroborated that testimony. The
policeman who investigated the case could not point out what conduct of the accused constituted
the insult to the chief. The chief was never called upon to testify, nor did the prosecution call any
evidence as to whether the accused knew that his conduct in question was insulting to the chief
or Kadjebi custom. However, there was evidence at the trial that the chief and his elders talked
directly to the accused and not through the linguist throughout the arbitration proceedings and
further that the stone particles which the accused was collecting were unwanted swept-off
chippings that had been used in tarring the road and did not belong to the chief or the traditional
area. At the close of the case for the prosecution, counsel for the accused submitted that no case
had been made against his client but the trial judge ruled against his submission; whereupon
counsel, with the leave of the court, appealed against the ruling. At the hearing, counsel for the
accused submitted, inter alia, that the evidence led at the trial was completely at variance with
the charge and that the trial magistrate was obliged on the evidence to acquit and discharge the
accused.
HELD, per Acquah J:
It was a fundamental right of every citizen that he could not be punished for any offence which
had not been directly set out and the punishment thereon equally laid down in the relevant
statutory instrument. That was implied by the provisions of section 8 of Act 29 to the effect that
no person should be made liable to punishment by the common law for any act. Hence, for any
customary offence to be punishable, steps had to be taken to have such offences and their
punishment clearly spelt out in the relevant statutory instrument. This was to ensure that
individuals were not subjected to capricious and sometimes outmoded, unintelligible and
undefined offences alleged to be against custom. The individual was entitled to know beforehand
what the offence was and the punishment for it. Consequently, if the fine imposed on the accused
in the instant case was not an arbitration award as alleged by the prosecution but the punishment
for finding him guilty of a customary offence, then it infringed against section 8 of Act 29. On
the other hand if it was an arbitration award its enforcement did not lie with the police but in
taking a substantive civil action.

the definition section in any enactment provided the basis for identification of the essential
elements or ingredients of the offences which they defined. However, where an offence had
no separate section defining it, as in the case of the offence of disrespect to a chief under
section 53(a) of the Chieftaincy Act, 1971 (Act 370) , the essential elements of that offence
had to be found in the section creating the offence itself. From the plain language of section
53(a) of Act 370, it was evident that to sustain a charge thereunder, the prosecution had to
establish that: (i) the language or conduct complained of was disrespectful or insulting; (ii)
the accused used or offered the said disrespectful or insulting language knowingly; and (iii)
the person against whom the said language or conduct was directed was a chief. Each of
these elements was important and failure to establish any of them would result in the
acquittal of the accused.

In the absence of any guide from either Act 370 or the Criminal Code, 1960 (Act 29) as to what
constituted “insulting” or “disrespectful” conduct, one had to adopt their ordinary or natural
meanings. Thus, the use of the two words “insulting” or “disrespectful” clearly indicated that the
language or conduct in question had to be one calculated to humiliate or show utter rudeness to
the chief. But then whether or not particular words or conduct were insulting to a chief depended
upon the circumstances of each case. Accordingly, there could be no general criteria for
determining the offensiveness of language or conduct. Furthermore, where the accused pleaded
“not guilty” or denied that the words were insulting or disrespectful, the evidence of the chief
who claimed that the said words were insulting or disrespectful to him was indispensable; the
chief concerned was the proper person to testify whether a particular conduct was disrespectful
or insulting to him. Hence, in such a case, a conviction could not be sustained without the
evidence of the chief in question. However, the fact that the chief in question had testified that
the words or conduct were insulting or disrespectful to him did not necessarily mean that they
were indeed insulting or disrespectful. The court was always under a duty to make a finding
whether having regard to the circumstances of the occasion, the nature of the word or conduct,
and the manner in which the accused offered them, his behaviour was insulting or disrespectful
as claimed by the chief. On the evidence, it was not established that the conduct of the accused
was disrespectful or insulting to the chief of Kadjebi. The chief might have been annoyed at the
behaviour of the accused but annoyance was not enough; a disrespectful or insulting word or
conduct had to be one which was injuriously contemptuous or discourteous of the chief.
The word “knowingly” in the definition of the offence under section 53(a) of Act 370 represented
the state of mind of the offender and indicated that an offence under the said section 53(a) could
not be sustained without the prosecution proving the requisite intent. The word “knowingly”
meant “deliberately” or “on purpose” so that the prosecution could in effect only succeed under
section 53(a) if they established that the accused deliberately used those insulting or disrespectful
language. Hence, if the language in question was indeed insulting or disrespectful but the
accused did not know that, he committed no offence; more so in view of the provisions of section
29(1) of Act 29 which barred the punishment of any person for any act which by reason of
ignorance or mistake of fact in good faith he believed to be lawful. In the instant case, the
prosecution did not make any attempt whatsoever to prove that the accused knew that the
conduct in question was insultive to the chief or Kadjebi custom, nor was there any evidence of
the state of mind of the accused at the time he was alleged to have misconducted himself. In the
absence of any such knowledge, the accused could not be called upon to open his defence.
It was clear from the language of section 53(a) of Act 370 itself as well as the marginal notes
thereto that the offence created therein was meant to protect chiefs from insults or disrespectful
conducts and no other body or institution. Consequently, the insulting or disrespectful language
or behaviour had to be to a chief and not to any one else or to custom, locality or belief. On the
facts of the instant case, however, it was not certain what conduct of the accused constituted
insult or disrespect to the chief of Kadjebi. As regards the allegation that the accused talked
directly to the chief, it was difficult, given that the chief spoke directly to the accused throughout
the arbitration proceedings, to see the element of insult in the accused’s direct response to what
had directly been demanded from him. Furthermore, the evidence showed that the conduct of the
accused in leaving the palace without permission as well as in picking stones in front of the
chief’s palace without permission was, if anything, an offence against Kadjebi custom only and
not against the chief.

TSATSU TSIKATA V. THE REPUBLIC 2003 2004 SCGLR

FACTS: The accused had been charged in the High Court for causing financial loss to the state.
The prosecution argued that in or about February 1993, the caused willfully caused GNPC to
guarantee a loan of FRF 5,500,000 from a company to Valley Farms, a private company which
loan Valley Farms failed to repay resulting in the GNPC repaying the loan and thus causing the
state to incur a loss of the said amount. The counsel for the accused argued that the act alleged
to have been committed was done before the law prohibiting the act came into being. This they
contended was in contradiction with Article 19 (5) of the 1992 Constitution. They therefore
requested the Court to refer the case to the Supreme Courglat for proper interpretation of Article
19 (5).
Three issues
if the signing of the guarantee in 1991 is the criminal act, then a case of retroactive use of
legislation arises;
if the payments in 1996 constituted the offence charged, there would be no question of
retroactivity;
and
is it logical or practical to separate the execution of the guarantee agreement and the payments
made in satisfaction of the guarantee obligations?
HELD, per Prof. Modipo Ocran:
The genesis of the background to a criminal case may be one thing; the immediate facts
and the criminal provisions upon which the charge is legally founded may be
another...although there is no specific law which makes the execution of the guarantee
agreement criminal, there is something else in the circumstances under which the
execution was done that would amount to a criminal act on the part of a public official,
such as a criminally reckless decision to make payments in the face of credible evidence
that the moneys would never be repaid to the guarantor corporation, or that the
transaction in question was entered into recklessly and unprofessionally.
Additionally, Article 19(11) requires a “written law” of crimes, i.e. the creation of crimes
in a written form but not a written law definition of all words used in a criminal
provision. Not only would such a task prove futile or impracticable; it would also ignore
the fact that no statute exists in isolation from the general criminal law of any legal
system…internal definitions of words in a statute is often done but this cannot be done,
and is not expected to be done, for each word or term that is deployed in creating a crime

HASSAN v. THE STATE [1962] 2 GLR 150

FACTS: The appellant was found in possession of Indian hemp on the 28th October, 1961.
He was convicted by the Circuit Court, Accra, on a charge of possessing Indian hemp,
contrary to the Pharmacy and Drugs Act, 1961, ss. 47 (1) and 57. The particulars of the
offence read: “Fatayi Hassan on the 20th day of January, 1961, in Accra in the Eastern
Region was in possession of 800 grammes of Indian hemp.” The Pharmacy and Drugs Act,
1961, came into force on the 13th June, 1961, and by section 47 (1) it provided that:
“47 (1) No person shall have in his possession without lawful excuse (proof of which
shall be on him) any opium or Indian hemp which is prepared for smoking or any residue
 from the smoking of opium or Indian hemp.” It was conceded by the State that the wrong
date was included in the particulars, and that on the 28th October. 1961, mere possession of
Indian hemp was not an offence. Counsel therefore submitted that the court should declare
the trial null and void and, on the authority of Okoro v. Inspector-General of Police (1953) 14
W.A.C.A. 370, order a re-trial.
HELD, per Ollennu JSC:
Under the said section 47 (1) of the Act, possession of Indian hemp simpliciter is no offence, it
only becomes an offence if the Indian hemp has been prepared for smoking or is any residue
from the smoking of Indian hemp.. The charge alleged the 20th January, 1961, as the date on
which the appellant was found in possession of the Indian hemp. The Interpretation Act,
1960,3(3) s. 8 (1) (d) provides that, “The repeal or revocation of an enactment shall not . . . (d)
affect any penalty, forfeiture or punishment incurred in respect of any offence committed
thereunder.” So that had the date on which the appellant was found with the Indian hemp been
the 20th January, 1961, as stated in the charge, the mere possession at that date would constitute
an offence under the Dangerous Drugs Ordinance and the appellant could properly have been
charged and convicted under that ordinance; in which case the ordinance and the section thereof
under which he is charged should have been stated. The evidence however showed that the date
on which the appellant was found in such possession of the Indian hemp was the 28th October,
1961, at which date the only law in force in the land regulating possession of Indian hemp was
the Pharmacy and Drugs Act, 1961. Therefore if any offence was committed on that date by
reason of the possession of Indian hemp it could only be an offence under section 47 (1) of the
Act.

THE RULE AGAINST DOUBLE JEOPARDY

No man should be punished twice for the same offence
Autre fois convict
Autre fois acquit
The accused must show that the first trial ended in a final verdict of GUILTY or NOT GUILTY
A discontinuance, hung jury, or the entry of a nolle prosequi is not a final verdict

Article 19 (7) of the Constitution, 1992:

No person who shows that he has been tried by a competent court for a criminal
offence and either convicted or acquitted, shall again be tried for that offence or for
any other criminal offence of which he could have been convicted at the trial for the
offence, except on the order of a superior court in the course of appeal or review
proceedings relating to the conviction or acquittal.
CRIMINAL PROCEDURE ACT, ACT 30
Section 113—Retrial.

A person who has been once tried by a Court of competent jurisdiction for an offence, and
convicted or acquitted of the offence, shall not be liable to be tried again on the same facts for
the same offence or any other offence of which he could have lawfully been convicted at the first
trial unless a retrial is ordered by a Court having power to do so.

Section 114—Retrial on Separate Charge.

A person convicted or acquitted of any offence may be afterwards tried for any offence for which
a separate charge might have been made against him on the former trial under subsection (2) of
section 109.

Section 115—Consequences Supervening or not Known at Time of Former Trial.

A person convicted or acquitted of any act causing consequences which together with such act
constitute a different offence from that for which such person was convicted or acquitted, may be
afterwards tried for such last-mentioned offence, if the consequences had not happened or were
not known to the Court to have happened at the time when he was acquitted or convicted.

SECTION 2

PUNISHMENT
DEFINITION
THE GENERAL PART OF CRIMINAL LAW VOLUME I BY HENRIETTA MENSAH
BONSU
Punishment has been defined as a phenomenon that entails the infliction of suffering or some
other unpleasant consequence by an agency in a position of authority on an offender for an
offence, i.e. the doing of a prohibited act. This simple statement belies the complexity of the
subject under consideration, for six major elements can be discerned from this definition of
punishment set out above. These are: (a) infliction of suffering; (b) by a deliberate act; (c) of
another; (d) in a position of authority; (e) on an offender actual or supposed; and (f) for the
doing of a prohibited act. This general notion of "punishment" covers sanctions imposed by
parental or any other authority, as well as by the authority of the State.
BENN, S I: AN APPROACH TO THE PROBLEMS OF PUNISHMENT (1958) 33
PHILOSOPHY325 at 325-326
Prof Flew has suggested five criteria for the use of "punishment" in its primary sense, i.e.
five conditions satisfied by a standard case to which the word would be applied:
(i) It must involve an "evil, an unpleasantness, to the victim";
(ii) It must be for an offence (actual or supposed);
(iii) It must be of an offender (actual or supposed);
(iv) It must be the work of personal agencies (i.e. not merely the natural consequences of an
action);
(v) It must be imposed by authority (real or supposed), conferred by the system of rules
(hereafter referred to as "law") against which the offence has been committed. It is not a misuse
to talk, for example, of "punishing the innocent", or of a boxer "punishing his opponent"; out
since these usages, though related to the primary one, disregard one or more of the criteria
ordinarily satisfied, they are extensions, or secondary usages. In considering the justification for
punishment, I shall confine the word to the primary sense, unless I indicate otherwise.
HART, H LA: PUNISHMENT AND RESPONSIBILITY Prolegomenon to the Principles of
Punishment, pp 4 - 5
I shall define the standard or central case of ‘punishment' in terms of five elements:
(i) It must involve pain or other consequences, normally considered unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be of an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human beings other than the offender.
(v) It must be imposed and administered by an authority constituted by a legal system
against which the offence is committed.
In calling this the standard or central case of punishment I shall relegate to the position of
sub-standard or secondary cases the following among many other possibilities:
i. Punishments for breaches of legal rules imposed or administered otherwise than by
officials (decentralizedsanctions).
ii. Punishments for breaches of non-legal rules or orders (punishments as in a family or
school).
iii. Vicarious or collective punishment, of some member of a social group for actions
done by others without the former's authorization, encouragement, control or
permission.
iv. Punishment of persons (otherwise than under (c)) who neither are in fact nor
supposed to be offenders.
ALF ROSS: ON GUILT, RESPONSIBILITY AND PUNISHMENT, UNIVERSITY OF
CALIFORNIA PRESS, BERKELEY AND LOS ANGELES, 1975, Chpt3, pp 36-39
The word punishment is used in many different contexts juridical, religious, moral,
pedagogical, natural (excessive eating brings its own punishment) - with shifting meanings,
but nevertheless in such a way that there always appears to be some family resemblance
(Wittgenstein) between the various senses. I believe, therefore, that it will be useful,
following Hart, to establish (more or less arbitrarily) a central meaning, defined by means of
a number of characteristics, and then locate other meanings as variants or derivatives in
relation to it, as particular characteristics drop out as unnecessary, or have to be added.
Hart views punishment in the juridical sense when he gives the elements of punishment must
: (1) involve pain or other consequences normally considered unpleasant; (2) be for an
offence against legal rules; (3) be of an actual supposed offender for his offence; (4) be
intentionally administered by human beings other than the offender; and (5) be imposed and
administered by an authority constituted by the legal system against which the offence is
committed. However, according to Ross, Hart’s definition is deficient in not including a
requirement to the effect that the punitive measure must be an expression of disapproval of
the violation of the rule, and consequently of censure or reproach directed at the violator. It
is, he believes, simply a logical impossibility to enforce a normative system, that is, give
effect to its normative requirements, without at the same time giving expression to
disapproval. Punishment is at once suffering and disapproval, and the two are, as indicated,
closely bound up with one another. Hart overlooks this connection when he explains
punishment as suffering but makes no room for disapproval.
The disapproval that is experienced in connection with violations of legal rules differs from
that which is linked with morally reprehensible actions. Its psychological basis is the feeling
of respect for law and order (the formal legal consciousness) which is the foundation of the
legal system. Moral disapproval, on the other hand, is based on a feeling of respect for the
voice of conscience, or for the demands of an accepted, authoritative moral order.
Disapproval is an act of thought which in itself need not be communicated to others. When it
is communicated to a violator it is called censure or reproach. In that case it is not an act of
thought alone, but an act of thought with a pragmatic function; that is to say, an act of
communication with a certain typical effect, in this case precisely that of conveying feelings
of disapproval and attitudes of a generally dissociative, unbenevolent, and even positively
hostile character.
Reproach is therefore not merely a moral judgment that is passed on someone, it is at the
same time itself a sanction; reproach brings suffering, or at least a measure of unpleasantness,
to the person at whom it is directed. When further suffering is inflicted upon the violator in
the form of punishment in the legal sense, this additional suffering may be understood as
being experienced, by the members of the community as much as by the violator himself, as
an amplification of the hostility already conveyed in the expression of disapproval.
Punishment is of course a form of treatment too, in the everyday sense of the word. As a term
in criminology "treatment" is used in a narrower sense for something that is to be
distinguished from "imposition of penalties", and this distinction consists precisely in
 treatment in this sense of the term being intended neither as the infliction of suffering nor as
the expression of disapproval, but only - just as in treating a case of pneumonia - as an
attempt to bring about a desirable change in the state of the individual's psycho-physical
organism. In practice, therefore, the distinction between punishment and treatment must be
based on whether or not an element of disapproval is involved.
Yet another amendment is, I think, called for in Hart's definition, this time regarding (3), the
requirement that for a legal response to crime to amount to punishment, it must be directed
upon the person who in fact or allegedly committed the crime. Accepting this condition
prevents us from talking of vicarious responsibility, in other words criminal liability for the
actions of others, as indeed we do, not only in everyday life but also in juridical contexts.
In accordance with these amendments, the concept of punishment could be defined in terms
of four components. Punishment is that social response which: (1) occurs where there is
violation of a legal rule; (2) is imposed and carried out by authorised persons on behalf of
the legal order to which the violated rule belongs; (3) involves suffering or at least other
consequences normally considered unpleasant; and (4) expresses disapproval of the
violator.

JOEL FEINBERG: "The Expressive Function of Punishment" DOING AND DESERVING

(Princeton. N J: Princeton University Press, 1970), pp 95-118. Culled from PHILOSOPHY OF
LAW (4th ed), Joel Feinberg and Hyman Gross (eds), Wadsworth Publishing Company,
California, 1991, pp 635-642
Punishment is defined, in effect, as the infliction of hard treatment by an authority on a person
for his prior failing in some respect (usually an infraction of a rule or command). One might
conclude, for example, that mere penalties are less severe than punishments, but although this is
generally true, it is not necessarily and universally so. Again, we might be tempted to interpret
penalties as mere 'price-tags' attached to certain types of behavior that are generally undesirable,
so that only those with especially strong motivation will be willing to pay the price. Rather than
look for a characteristic common and peculiar to the penalties on which to ground the distinction
between penalties and punishments, we would be better advised, he thinks, to cast our attention
to the examples of punishments. Both penalties and punishments are authoritative deprivations
for failures; but apart from these common features penalties have a miscellaneous character. In
conclusion, Punishment is a conventional device for the expression of attitudes of resentment and
indignation, and of judgments of disapproval and reprobation, either on the part of the punishing
authority himself or of those "in whose name" the punishment is inflicted. Punishment, in short,
has a symbolic significance largely missing from other kinds of penalties.

1. The constitutional problem of defining legal punishment

FLEMMING v. NESTOR [80 S. Ct. 1367 (1960)]
FACTS: Nestor had immigrated to the United States from Bulgaria in 1913, and in 1955
became eligible for old-age benefits under the Social Security Act. In 1956, however, he was
deported in accordance with the Immigration and Nationality Act, for having been a member
of the Communist Party from 1933 to 1939. This was a hard fate for a man who had been in
America for forty-three years and who was no longer a Communist; but at least he would
have his social security benefits to support him in his exiled old age. Or so he thought.
Section 202 of the amended Social Security Act, however, provides for the termination of
old-age, survivor, and disability insurance benefits payable to an alien individual who, after
September 1,1954 (the date of enactment of the section) is deported under the Immigration
and Nationality Act on any one of certain specified grounds, including past membership in
the Communist Party. Accordingly, Nestor was informed that his benefits would cease.
Nestor then brought suit in a District Court for a reversal of the administrative decision. The
court found in his favor and held ss.202 of the Social Security Act unconstitutional, on the
grounds that termination of [Nestor's] benefits amounts to punishing him without a judicial
trial, that [it] constitutes the imposition of punishment by legislative act rendering ss.202 a
bill of attainder; and that the punishment exacted is imposed for past conduct not unlawful
when engaged in, thereby violating the constitutional prohibition on ex post facto laws. The
Secretary of Health, Education, and Welfare, Mr. Flemming, then appealed this decision to
the Supreme Court. It was essential to the argument of the District Court that the termination
of old-age benefits under ss.202 was in fact punishment, for if it were properly classified as
nonpunitive deprivation, then none of the cited constitutional guarantees was relevant. The
constitution, for example, does not forbid all retroactive laws, but only those providing
punishment. (Retroactive tax laws may also be hard and unfair, but they are not
unconstitutional.) The question before theSupreme Courtthen was whether the hardship
imposed by ss.202 was punishment. Did this not bring the Court face to face with the
properly, philosophical question 'What is punishment?' and is it not clear that under the usual
definition that fails to distinguish punishment from mere penalties, this particular judicial
problem could not even arise?
HELD: MR. JUSTICE HARLAN, on the majority, stated that the termination of benefits, like the
deportation itself, was the exercise of the plenary power of Congress incident to the regulation of
an activity. Similarly, the setting by a State of qualifications for the practice of medicine, and
their modification from time to time, is an incident of the State's power to protect the health and
safety of its citizens, and its decision to bar from practice persons who commit or have
committed a felony is taken as evidencing an intent to exercise that regulatory power, and not a
purpose to add to the punishment of ex-felons.
"the mere denial of a noncontractual governmental benefit") was not a conventional vehicle for
the expression of censure, being wholly outside the apparatus of the criminal law. It therefore
lacked the reprobative symbolism essential to punishment generally, and was thus, in its hybrid
character, able to generate confusion and judicial disagreement. It was as if Congress had
'condemned' a certain class of persons privately in stage whispers, rather than by pinning the
infamous label of criminal on them and letting that symbol do the condemning in an open and
public way. Congress without question "intended" to punish a certain class of aliens and did
indeed select sanctions of appropriate severity for that use; but the deprivation they selected was
not of an appropriatekind to perform the function of public condemnation. A father who
‘punishes’ his son for a displeasing act the father had not thought to forbid in advance, by
sneaking up on him from behind and then throwing him bodily across the room against the wall,
would be in much the same position as the legislators of the amended Social Security Act,
especially if he then denied to the son that his physical assault on him had had any 'punitive
intent,' asserting that it was a mere exercise of his parental prerogative to rearrange the household
furnishings and other objects in his own living room. This would be to tarnish the paternal
authority and infect all later genuine punishments with hollow hypocrisy. This also happens
when legislators go outside the criminal law to do the criminal law's job.
MR. JUSTICE BRENNAN'S dissenting opinion: "an aging man deprived of the means with
which to live after being separated from his family and exiled to live among strangers in a land
he quit forty-seven,years ago, it is impossible to think of any purpose the provision in question
could possibly serve except to "strike" at "aliens deported for conduct displeasing to the
lawmakers."
CRIMINAL OFFENCES ACT, ACT 29

Section 1.4. "crime" means any act punishable by death or imprisonment or fine;

"felony", "first degree felony" and "second degree felony" shall be construed in accordance
with section 296 of the Criminal Procedure Code;

"indictable offence" means any offence punishable on indictment;

"misdemeanour" shall be construed in accordance with section 296 of the Criminal Procedure
Code;

“offence" has the same meaning as crime;

"order” includes a conviction;

"summary offence" means any offence punishable on summary conviction under any
enactment;
Section 296—General Rules for Punishment.

(1) Where a crime is declared by any enactment to be a first degree felony and the punishment
for the crime is not specified, a person convicted thereof shall be liable to imprisonment for life
or any lesser term.

(2) Where a crime, not being a crime mentioned in sub-section (5), is declared by any enactment
to be a second degree felony and the punishment for the crime is not specified, a person
convicted thereof shall be liable to imprisonment for a term not exceeding ten years.

(3) Where a crime is declared by any enactment to be a felony without specifying whether it is a
first or second degree felony and the punishment for the crime is not specified it shall be deemed
to be a second degree felony.

(4) Where a crime, not being a crime mentioned in sub-section (5), is declared by any enactment
to be a misdemeanour and the punishment for the crime is not specified, a person convicted
thereof shall be liable to imprisonment for a term not exceeding three years.

(5) A person convicted of a crime under any of the following sections of the Criminal Code,
1960 (Act 29) that is to say, sections 124, 128, 131, 138, 140, 145, 152, 154, 158, 160, 165, 239,
252, 253 and 260 shall be liable to imprisonment for a term not exceeding twenty-five years.

(6) A term of imprisonment shall be with hard labour unless, in the case of a sentence of less
than three years, the Court otherwise directs.

Section 297—Rules Relating to Fines.

(1) Where a person is convicted of any felony or misdemeanour or any offence punishable by
imprisonment (other than an offence for which the sentence is fixed by law) the Court may, in its
discretion, sentence him to a fine in addition to or in lieu of any other punishment to which he is
liable.

(2) Where the amount of the fine which a person may be sentenced to pay upon conviction is not
expressly limited, the amount of fine shall, subject to any limitations on the powers of the Court,
be in the discretion of the Court, but shall not be excessive.

(3) Where a person convicted of any offence is sentenced to pay a fine the Court may direct that
if he fails to pay it within the time appointed for payment (which may be either forthwith or
within a specified time, as the Court thinks fit) he shall suffer imprisonment until it is paid. Such
imprisonment shall be in addition to any imprisonment to which is sentenced for his offence;
and, in the case of a felony or misdemeanour, shall not exceed. [As amended by the Criminal
Procedure Code (Amendment) Act, (Act 633), s. (23)]
(4) In any case where a fine has been imposed, either by a Court exercising summary jurisdiction
or at a trial on indictment, if, before the expiration of the term of imprisonment fixed in default
of payment, such a proportion of the fine be paid or levied that the term of imprisonment
suffered in default of payment is not less than proportional to the part of the fine still unpaid, the
imprisonment shall terminate.

Section 298—Consequences of Imprisonment for Three Years or More.

(1) If a person convicted of an offence, and is sentenced to imprisonment for three years or more,
the following consequences shall ensue, unless the Court otherwise orders—

(a) any public office held by him within the jurisdiction of the Court shall forthwith
become vacant; and

(b) any pension, superannuation allowance, or emolument payable to him out of the
public revenues or out of any public fund, or chargeable on any rate or tax, and any
accruing right to any such pension, allowance, or emolument, shall determine and be
forfeited from the date of the conviction.

(2) None of the consequences mentioned in this section shall ensue in the case of a person who,
at the time of committing the crime of which he is convicted, was a juvenile. [As amended by the
Criminal Procedure Code (Amendment) Act, (Act 633), s. (1)]

(3) In case the person receives a pardon, he shall thereby, unless the pardon otherwise directs, be
relieved from all the consequences mentioned in this section, except as to any office of
employment which, having been vacated under the provisions of this section, has been filled up
before he receives the pardon.

PURPOSE/AIMS OF PUNISHMENT
THE GENERAL PART OF CRIMINAL LAW VOLUME I BY HENRIETTA MENSAH
BONSU
Why not something else altogether? Why do we punish people who commit offences? The
question-Can be answered shortly by stating that there has not as yet been found any method of"
ensuring compliance with-rules-that have been handed down either within the family or within
the state. The fact that punishment per se has its own intrinsic worth does not mean that it is
imposed mindlessly, without a consideration of the ends its imposition on offending individuals
is intended to achieve. The imposition of punishment therefore has various aims. The main aims
for the imposition of punishment are generally acknowledged to be :( l) retribution; (2)
deterrence; (3) prevention; (4) reformation; (5) rehabilitation; and (6) justice. These purposes are
divisible along the two main lines of retributive and utilitarian theories

THEORIES OF PUNISHMENT – RETRIBUTIVE THEORY

THE GENERAL PART OF CRIMINAL LAW VOLUME I BY HENRIETTA MENSAH
BONSU
There are two main theories of retribution. The first is grounded in revenge, ie that the State
should avenge the wrong done to the victim, by paying the offender back in his own coin. The
adherents of this theory believe that an offender must be made to suffer to the same extent that
the victim suffered. The Mosaic law captures the idea in the maxim "A tooth for a tooth, an eye
for an eye." This is a largely discredited view of the purpose of punishment for one might end up
imposing punishment for the sake of punishment.
The second and more respectable view of retributive punishment is that the punishment must fit
the crime. This view takes the position that an individual offender must get his just deserts. In
many ways, most systems of criminal justice adhere to this view for there are different degrees of
punishment for different degrees of criminal activity. The very fact that different degrees of
punishments are prescribed for offences with various degrees of gravity itself is an indication of
a built-in system of retribution. The effort to make the offence fit the crime also has the result of
making the punishment reflect the communities’ values, e.g. murder is punished more severely
than manslaughter, and robbery is in turn punished more severely than stealing: see sections 69
and 70 of Act 29. Section 69 provides that intentionally and unlawfully causing harm equal to
another is a second degree felony whilst section 70 also provides that intentionally and
unlawfully causing harm by the use of an offensive weapon is a first degree felony.

MABBOTT, J D: "PUNISHMENT" (1939) 48 MIND 152

The question I am asking is this. Under what circumstances is the punishment of some
_particular person justified and why? The theories of reform and deterrence which are usually
considered to be the only alternatives to retribution involve well-known difficulties. These are
considered fully and fairly in Dr. Ewing's book, The Morality of Punishment, and I need not
spend long over them. The central difficulty is that both would on occasion justify the
punishment of an innocent man, the deterrent theory if he were believed to have been guilty by
those likely to commit the crime in future, and the reformatory theory if he were a bad man
though not a criminal. To this may be added the point against the deterrent theory that it is the
threat of punishment and not punishment itself which deters, and that when deterrence seems to
depend on actual punishment, to implement the threat, it really depends on publication and may
be achieved if men believe that punishment has occurred even if in fact it has not. As Bentham
saw, for a Utilitarian apparent justice is everything, real justice is irrelevant.
Dr. Ewing and other moralists would be inclined to compromise with retribution in the face of
the above difficulties. They would admit that one fact and one fact only can justify the
punishment of this man, and that is a past fact, that he has committed a crime. To this extent
reform and deterrence theories, which look only to the consequences, are wrong. But they would
add that retribution can determine only that a man should be punished. It cannot determine how
or how much, and here reform and deterrence may come in. Even Bradley, the fiercest
retributionist of modern times, says "Having once the right to punish we may modify the
punishment according to the useful and the pleasant, but these are external to the matter; they
cannot give us a right to punish and nothing can do that but criminal desert." Dr. Ewing would
maintain that the whole estimate of the amount and nature of a punishment may be effected by
considerations of reform and deterrence. It seems to me that this is a surrender which the
upholders of retribution dare not make. As I said above, it is publicity and not punishment which
deters, and the publicity though often spoken of as "part of a man's punishment" is no more part
of it than his arrest or his detention prior to trial, though both these may be also unpleasant and
bring him into disrepute. A judge sentences a man to three years' imprisonment not to three years
plus three columns in the presssimilarly with reform. The visit of the prison chaplain is not pru 1
of a man's punishment nor is the visit of Miss Fields or Mickey Mouse. The truth is that while
punishing a man and punishing him justly.it is possible to deter others, and also to attempt to
reform him and if these additional goods are achieved the total state of affairs is better than it
would be with the just punishment alone. But reform and deterrence are not modifications of the
punishment, still less reasons for it. A parallel may be found in the case of tact and truth. If you
have to tell a friend an unpleasant truth you may do all you can to put him at his ease and spare
his feelings as much as possible, while still making sure that he understands your meaning. In
such a case no one would say that your offer of a cigarette beforehand or your apology
afterwards are modifications of the truth still less reasons for telling it. You do not tell the truth in
order to spare his feelings, but having to tell the truth you also spare his feelings. So Bradley was
right when he said that reform and deterrence were "external to the matter", but therefore wrong
when he said that they may “modify the punishment." Reporters are admitted to our trials so that
punishments may become public and help to deter others. But the punishment would be no less
just were reporters excluded and deterrence not achieved. Prison authorities may make it possible
that a convict may become physically or morally better. They cannot ensure- seither result; or the
punishment would still be just if the criminal took no advantage of their arrangements and their
efforts failed. Some moralists see this and exclude these "extra" arrangements for deterrence and
reform. They say that it must be the punishment itself which reforms and deters. But it is just my
point that the punishment itself 'seldom reforms the criminal and never deters others. It is only
"extra" arrangements which have any chance of achieving either result. As this is the central
point of my paper, at the cost of laboured repetition I would ask the upholders of reform and
deterrence two questions. Suppose it could be shown that a particular criminal had not been
improved by a punishment and also that no other would-he criminal had been deterred by it,
would that prove that the punishment was unjust"? Suppose it were discovered that a particular
criminal had lived a much better life after his release and that many would-be criminals believing
him to have been guilty were influenced by his fate, but yet that the "criminal" was punished for
something he had never done, would these excellent results prove the punishmentjust?
It will be observed that up to this juncture I have treated punishment as a purely legal matter. A
"criminal" means a man who has broken a law, not a bad man; an "innocent" man is a man who
has not broken the law in connection with which he is being punished, though he may be a bad
man and have broken other laws. Here I dissent from most upholders of the retributive theory -
from Hegel, from Bradley, and from Dr. Ross. They maintain that the essential connection is one
between punishment and moral or social wrong doing.
Dr. Ross would hold that not all wrong-doing is punishable, but only invasion of the rights of
others; and in such a case it might be thought that the injured party had a right to punish. His
right, however," is rather a right to reparation, and should not be confused with punishment
proper.
My theory also explains where it seems to me all others do not, the case of punishment imposed
by an authority who believes the law in question is a bad law. Iwas for some time disciplinary
officer of a college whose rules included a rule compelling attendance at chapel. Many of those
who broke this rule broke it on principle. I punished them. I certainly did not want to reform
them; I respected their characters and their views. I certainly did not want to drive others into
chapel through fear of penalties. Nor did I think there had been a wrong done which merited
retribution. I wished I could have believed that I would have done the same myself. My position
was clear. They had broken a rule; they knew it and I knew it. Nothing more was necessary to
make punishment proper.
I know that the usual answer to this is that the judge enforces a bad law because otherwise law in
general would suffer and good laws would be broken. The effect of punishing good men for
breaking bad laws is that fewer bad men break good laws.
The view, then, that a judge upholds a bad law in order that law in general should not suffer is
indefensible. He upholds it simply because he has no right to dispense from punishment.
The connection of punishment with law-breaking and not with wrongdoing also escapes moral
objections to the retributive theory as held by Kant and Hegel or by Bradley and Ross. It is asked
how we can measure moral wrong or balance it with pain, and how pain can wipe out moral
wrong. Retributivists have been pushed into holding that pain represses the worse self and frees
the better, when this is contrary to the vast majority of observed cases. But if punishment is not
intended to measure or balance or negate moral wrong then all this is beside the mark. There is
the further difficulty of reconciling punishment with repentance and with forgiveness.
Repentance is the reaction morally appropriate to moral wrong and punishment added to remorse
is an unnecessary evil. But if punishment is associated with law-breaking and not with moral evil
the punisher is not entitled to consider whether the criminal is penitent any more than he may
consider whether the law is good. So, toowith forgiveness. Forgiveness is not appropriate to
law-breaking. (It is noteworthy that when, in divorce cases, the law has to recognize forgiveness
it calls it "condonation", which is symptomatic of the difference of attitude.) Nor is forgiveness
appropriate to moral evil. It is appropriate to personal injury. No one has any right to forgive me
except the person I have injured. No judge or jury can do so. But the person I have injured has no
right to punish me. Therefore there is no clash between punishment and forgiveness since these
two duties do not fall on the same person nor in connection with the same characteristic of my
act. (It is the weakness of vendetta that it tends to confuse this clear line, though even there it is
only by personifying the family that the injured party and the avenger are identified. Similarly
we must guard against the plausible fallacy of personifying society and regarding the criminal as
"injuring society", for then once more the old dilemma about forgiveness would be insoluble.) A
clergyman friend of mine catching a burglar red-handed was puzzled about his duty. In the end
he ensured the man's punishment by information and evidence, and at the same time showed his
own forgiveness by visiting the man in prison and employing him when he came out. I believe
any "good Christian" would accept this as representing his duty. But obviously if the punishment
is thought of as imposed by the victim or for the injury or immorality then the contradiction with
forgiveness is hopeless.
So far as the question of the actual punishment of any individual is concerned this paper could
stop here. No punishment is morally retributive or reformative or deterrent. Any criminal
punished for anyone of these reasons is certainly unjustly punished. The only justification for
punishing any man is that he has broken a law. This is in effect admitted by Ewing in one place
where he says "It is the penal system as a whole which deters and not the punishment of any
individual offender."

MICHAEL S MOORE: "The Moral Worth of Retribution" culled from PHILOSOPHY

OF LAW (4th ed), Joel Feinberg and Hyman Gross (eds) Wadsworth Publishing Company,
California, 1991, pp 685-691 -Retributivism and the Possible Modes of its Justification
... Retributivism is the view that punishment is justified by the moral culpability of those who
receive it. A retributivist punishes because, and only because, the offender deserves it.
Retributivism thus stands in stark contrast to utilitarian views that justify punishment of past
offenses by the greater good of preventing future offenses. It also contrasts sharply with
rehabilitative views; according to which punishment is justified by the reforming good it does the
criminal.
Less clearly, retributivism also differs from a variety of views that are often paraded as
retributivist, but that in fact are not. Such views are typically put forward by people who cannot
understand how anyone could think that moral desert by itself could justify punishment. Such
persons scramble about for other goods that punishment achieves and label these, quite
misleadingly, "retributivism." The leading confusions seem to me to be seven in number.
(1). First, retributivism is sometimes identified with a particular measure of punishment such as
lex talionis, an eye for an eye (e.g., Wilson and Herrnstein, 1985, p. 496), or with a kind of
punishment such as the death penalty. Yet retributivism answers a question prior to the questions
to which these could be answers. True enough, retributivists at some point have to answer the
"how much" and "what type" questions for specific offenses, and they are committed to the
principle that punishment should be graded in proportion to desert; but they are not committed to
any particular penalty scheme nor to any particular penalty as being deserved. Separate argument
is preceded to answer these "how much" and "what type" questions, after one has described why
one is punishing at all. It is quite possible to be a retributivist and to be against both the death
penalty and lex talionis, the idea that crimes should be punished by like acts being done to the
criminal.
(2). Contrary to Anthony Quinton (1954) and others (see Hart, 1968), retributivism is not "the
view that only the guilty are to be punished. “A retributivist will subscribe to such a view, but
that is not what is distinctive about retributivism. The distinctive aspect of retributivism is that
the moral desert of an offender is a sufficient reason to punish him or her; the principle Quinton
advocates make such moral deserts only a necessary condition of punishment. Other reasons -
typically, crime prevention reasons - must be added to moral desert, in this view, for punishment
to be justified. Retributivism has no room for such additional reasons. That future crime might
also be prevented by punishment is a happy surplus for a retributivist, but no part of the
justification for punishing.
(3). Retributivism is not the view that punishment of offenders satisfies the desires for vengeance
of their victims. The harm that is punishment can be justified by the good it does psychologically
to the victims of crime, whose suffering is thought to have a special claim on the structuring of
the criminal justice system (see Honderich, 1969, p.30). To me, this is not retributivism. A
retributivist can justify punishment as deserved even if the criminal's victims are indifferent (or
even opposed) to punishing the one who hurt them. Indeed, a retributivist should urge
punishment on all offenders who deserve it, even if no victims wanted it.
(4). Relatedly, retributivism is not the view that the preferences of al I citizens (not just crime
victims) should be satisfied. A preference utilitarian might well believe, as did Sir James
Fitzjames Stephen (1967 at p. 152), that punishment should be exacted "for the sake of gratifying
the feeling of hatred - call it revenge, resentment, or what you will - which the contemplation of
such [criminal] conduct excites in healthily constituted minds..." or that "the feeling of hatred
and the desire of vengeance ... are important elements of human nature which ought... to be
satisfied in a regular public and legal manner." Yet a retributivist need not believe such things,
but only that morally culpable persons should be punished, irrespective of what other citizens
feels, desire, or prefer.
(5). Relatedly, retributivism is not the view that punishment is justified because without it
vengeful citizens would take the law into their own hands. Usually it is those who are hostile to
retributivism, such as Justice Marshall (1976), who link it to this indefensible idea. Punishment
for a retributivist is not justified by the need to prevent private violence, which is an essentially
utilitarian justification. Even in the most well-mannered state, those criminals who deserve
punishment should get it, according to retributivism.
(6). Nor is retributivism to be confused with denunciatory theories of punishment (Feinberg,
1971). In this latter view punishment is justified because punishment is the vehicle through
which society can express its condemnation of the criminal's behavior. This is a utilitarian theory,
not a retributive one, for punishment is in this view to be justified by the good consequences it
achieves - either the psychological satisfactions denunciation achieves, or the prevention of
private violence, or the prevention of future crimes through the education benefits of such
denunciation. A retributivist justifies punishment by none of these supposed good consequences
of punishing.
(7). Finally, retributivism should not be confused with a theory of formal justice (the treating of
like cases alike). Retributivism is not, as McCloskey (1965) has urged, "a particular application
of a general principle of justice, namely, that equals should be treated equally and unequal
unequally." True, a retributivist who also subscribes to the principle of formal justice is
committed to punishing equally those persons who equally deserve. However, the principle of
formal justice says nothing about punishing anybody for anything; such a principle only dictates
that, if we punish anyone, we must do so equally. Why we should punish anyone is the question
retributivism purports to answer, a question not answered by the distinct principle offormal
justice.
Retributivism is a very straightforward theory of punishment: We are justified in punishing
because and only because offenders deserve it. Moral culpability ("desert") is in such a view both
a sufficient as well as a necessary condition of liability to punitive sanctions. Such justification
gives society more than merely a right to punish culpable offenders. It does this, making it not
unfair to punish them, but retributivism justifies more than this. For a retributivist, the moral
culpability of an offender also gives society the duty to punish. Retributivism, in other words, is
truly a theory of justice such that, if it is true, we have an obligation to set up institutions so that
retribution is achieved.
Retributivism, so construed, joins corrective justice theories of torts, natural right theories of
property, and promissory theories of contract as deontological alternatives to utilitarian
justifications; in each case, the institutions of punishment, tort compensation, property, and
contract are justified by the Tightness or fairness of the institution in question, not by the good
consequences such institution may generate. Further, for each of these theories, moral desert
plays the crucial justificatory role: Tort sanctions are justified whenever the plaintiff does not
deserve to suffer the harm uncompensated and the defendant by his or her conduct has created an
unjust situation that permits corrective action; property rights are justified whenever one party,
by his or her labor, first possession, or intrinsic ownership of his or her own body, has come by
such actions or status morally to deserve such entitlements; and contractual liability is justified
by the fairness of imposing it on one who deserves it (because of his or her voluntary
undertaking, but subsequent and unexcused breach).
Once the deontological nature of retributivism is fully appreciated, it is often concluded that such
a view cannot be justified. You either believe punishment to be inherently right, or you do not,
and that is all there is to be said about it. As Hugo Bedau (1978) once put it: “Either he [the
retributivist) appeals to something else - some good end - that is accomplished by the practice of
punishment, in which case he is open to the criticism that he has a nonretributivist,
consequentialist justification for the practice of punishment. Or his justification does not appeal
to something else, in which case it is open to the criticism that it is circular and futile.”
Such a restricted view of the justifications open to a retributivist leads theorists in one of two
directions: Either they hang on to retributivism, urging that it is to be justified "logically" (i.e.,
non-morally), as inherent in the ideas of punishment (Quinton, 1954) or of law (Fingarette,
1977); or they give up retributivism as an inherently unjustifiable view (Benn and Peters, 1 (59).
In either case, retributivismis unfairly treated, since the first alternative trivializes it and the
second eliminates it.

UTILITARIAN THEORY
THE GENERAL PART OF CRIMINAL LAW VOLUME I BY HENRIETTA MENSAH
BONSU
The utilitarian theory as espoused by Jeremy Bentham is essentially to the effect that laws must
ensure the greatest good for the greatest number of people. Thus, whatever the law-making effort
engaged in, it must produce useful results that would ensure the happiness of the greatest
number. For this reason, punishment must not be considered as an end in itself, but as a means to
an end. It must serve a purpose, or it is an exercise in waste. When punishment succeeds in
reducing crime because people realise that offenders would be punished, that is a useful end.
Therefore the concept of deterrence is very prominent in the arsenal of utilitarians.
GENERAL DETERENCE
KWASHIE v THE REPUBLIC [1971] 1 GLR488, CA (Azu Crabbe, J.A)
FACTS: "...This appellant was, until 14 April 1967, when the offence alleged in count two was
committed, a detective constable attached to the Tema New Town Police Station. The second
appellant was also, at the material time, an escort police officer at the same station. The evidence
against the two appellants was that at 9 p.m. on 14 April 1967, they booked themselves in the
station diary of the Tema New Town Police Station as going on enquiries. On leaving the police
station the appellants called the third accused, also an escort police constable, to join them, and
at about 11.30 p.m. they hired a taxi and asked the driver to drive them to a village about 22
miles from Afienya. Meanwhile, the fourth accused had at about 6.30 p.m. earlier in the evening
hired a two-ton Morris bus and had asked the driver to drive him to a village near Kpong to
collect the furniture of his brother and take it to Tenia. The fourth accused boarded the bus with
two other men, and they set out on their journey at about 7 p.m. Just before reaching Afienya the
bus was overtaken by a taxi, which stopped a few yards ahead. The first appellant alighted from
the taxi and signalled the bus to stop. When the bus stopped the third accused came out of the
taxi and boarded the bus on the instructions of the first appellant. After that both the taxi and the
bus continued their journey. At the Afienya barrier, the bus was stopped and searched, but
nothing incriminating was found in it, and the driver was allowed to proceed. When the taxi got
to the barrier the first appellant told the policemen there that they were on their way for some
investigations, and so the taxi was allowed to pass without any hindrance. The taxi again
overtook the bus and at about two miles to Kpong, the first appellant asked the driver to stop by
the road-side. Soon the bus also arrived at the spot, and the fourth accused asked the driver of the
bus to park behind the taxi. The two appellants and the third and fourth accused persons got out
of their vehicles and walked to the house of one Peter Senancoo Ankuma. It was about midnight,
and Ankuma had gone to bed. He was aroused from his sleep and was told that he had in his
possession some contraband goods. The first appellant produced from his pocket and showed to
him a piece of paper which he alleged was a search-warrant. The rooms of the house were
thoroughly searched, and the appellants and their confederates carried away with them the goods
enumerated in count two of the indictment, and deposited them in the bus. The appellants
arrested Ankuma and put him into their taxi and asked him to take them to the person who had
brought the goods to his house. The taxi driver drove towards the direction of Tema, and on the
way the appellants told Ankuma that they were taking him to the Dodowa Police Station. But
after the taxi had travelled a distance of about one mile it stopped, and the appellants asked
Ankuma to go down and look for the owner of the goods. Meanwhile, the bus was heading
towards Tema, and as it approached the Afienya barrier it was overtaken by the taxi, and the
driver was signalled to stop. It stopped, and the taxi also stopped in front of it. The second
appellant got out of the taxi and had a quiet conversation with the third accused, who was sitting
in the bus. After this the taxi moved, and the third accused asked the driver of the bus to follow
the taxi. At the Afienya barrier the taxi was stopped by the police, and whilst the police
pretended to be inspecting it, the bus passed without stopping. The third accused instructed the
driver of the bus not to stop for inspection. On the way the taxi again overtook the bus and drove
straight to Tema and parked at Community No. 1. Later the bus also arrived at Community No.
1. and the fourth accused instructed the driver of the bus to drive to Kokompe in Accra and to
unload the goods at his house. At about 3.30 a.m. on 15 April 1967, the orderly on duty at the
Tema New Town Police Station saw the appellants return together to the station. The first
appellant was in mufti, and the second appellant was dressed in police uniform. The driver of the
bus carried out the instruction which he received from the fourth accused, and subsequently,
during the investigation by the police into this case, one case only of tobacco was discovered in
the house of the fourth accused during a search. The rest of the goods have not been recovered.
arguments by Mr. Agadzi in support of the appeal against sentence may be summarised as
follows: (1) that the trial judge gave no reasons for the severe sentence that he passed on the first
appellant; (2) that having regard to the value of the goods stolen the sentence is excessive; (3)
that the first appellant had no record of any previous convictions and since he is a first offender
he ought to have been more leniently dealt with; and (4) that the mere fact that the first appellant
was a police officer was not by itself a good enough reason for imposing an unusually harsh
sentence.
Dealing with the first submission, we would state that there is no obligation on a trial judge to
give reasons, when imposing sentence on a convicted person. We will take the second and third
submissions together...
In determining the length of sentence, the factors which the trial judge is entitled to consider are:
(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding
citizens of the society for the particular crime; (3) the premeditation with which the criminal plan
was executed; (4) the prevalence of the crime within the particular locality where the offence
took place, or in the country generally; (5) the sudden increase in the incidence of the particular
crime; and (6) mitigation or aggravating circumstances such as extreme youth, good character
and the violent manner in which the offence was committed. These are factors not directly
connected with the offence. In R. v. Blake [1962] 2 Q.B. 377, CCA. the court dismissed an
appeal against a maximum sentence of fourteen years' imprisonment, and in delivering the
judgment of the court, Hilbery J. said at p.381 : 'It has been said, rightly, that in passing sentence
a judge has to consider the offence and the offender, but he has also to consider the interest of
society.' A sentence must be intended to serve a purpose, and as Hilbery J. said in the Blake case
at p.383: 'This sentence [of 42 years' imprisonment for spying] had a threefold purpose. It was
intended to be punitive, it was designed and calculated to deter others, and it was meant to be a
safeguard to this country.'
The first appellant was a police officer trained in the detection of crime. In recent months there
has been a sudden increase in the incidence of trafficking in contraband goods, and this has
caused a great deal of public anxiety. The first appellant must have known that this offence was
particularly grave, from the public point of view, because of the severe damage it does to this
country's economy, which is already fragile. In collaboration with two other police officers, the
first appellant used his office as a police detective to seize a large quantity of goods which had
been smuggled into this country. The bus carrying the goods passed through the Afienya barrier
without inspection in a manner which leaves this court in no doubt that it was all prearranged.
The goods were not sent to the Tema Police Station, but to the private house of one of the
accomplices in Accra for the purpose of selling them for the joint benefit of all who participated
in this criminal adventure. Apart from one case of tobacco, none of the other goods have been
recovered. We cannot but remark that there have been persistent rumours in this country that
some police officers are in collusion with smugglers of contraband goods from neighbouring
countries and elsewhere.
Upon these facts, which reveal an offence of a very grave nature, the sentence must not only be
punitive, but it must also be a deterrent or exemplary. The sentence must mark the disapproval of
our society of such conduct by police officers. Where the 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. Thus, in R. v. Goldsmith and Oakey [1964] Crim.L.R. 729, C.A. where two
police officers appealed against their sentences of four years' imprisonment each for conspiracy
to pervert the course of justice, the court said: 'When however one is giving deterrent sentences,
and this was a deterrent sentence, it does not seem to the Court that it is proper to take into
consideration the individual circumstances, whether it be record or of service.' (See D.A.
Thomas, Sentencing - The Basic Principles [1967] Crim.L.R. 503 at p. 512.) In a footnote to the
Goldsmith case D.A. Thomas said in [1967] Crim. L.R.503 atp. 512:
We wish to refer briefly to a few other cases to show the attitude of an appellate court where a
deterrent sentence is passed at the trial. In R. v. Rhodes [1959] Crim. L.R.I 38, CCA. the court
upheld a sentence of twelve months' imprisonment. The prisoner, a man of 46 years of age, had
pleaded guilty to a charge of forgery. The offence was committed when the prisoner, who was the
occupier of a council house, forged a certificate of wages in order to qualify for a rebate of rent
based upon his earnings. The prisoner was previously of good character. The appeal court
declined to interfere with the sentence, because it was clear that the recorder had been minded
deliberately to make an example of the prisoner and of two other men in similar cases.
In R. v. Machin [1961] Crim. L.R.844, CCA. the appeal court upheld a sentence of six years'
imprisonment for rape. It was reported that:
'Lord Parker C.J., Giving judgment, said that the appellant was a young man of 21 years of age
with virtually a clear record. However, single women must be protected against disgraceful
assaults of this kind, which were all too prevalent in this country today. An exemplary sentence
was required to deter other young men from similar offences and, accordingly, there was nothing
wrong in principle with the sentence of six years.'
In R. v. Smith (No.5) [1963] Crim. L.R. 526, CCA. the appellant, employed as checker at a
railway goods depot, pleaded guilty to two counts of receiving goods worth £24 that had been
stolen in transit. He had no previous convictions, and had had 41 years’ service on railways. He
also had a good army record. In the view of the appeal court since the appellant was in a position
of trust and the theft of goods in transit was prevalent, it therefore found nothing wrong in
principle with the sentence of fifteen months' imprisonment.
In R.v. Gosling [1964] Crim. L.R. 483, CCA. the appellant, aged 35, was a market porter who
had stolen property worth £10 from a market trader. He had no previous convictions, and was
therefore a first offender. The appeal court, nevertheless, held that a deterrent sentence of twelve
months' imprisonment was proper despite his previous good character. We think that the
argument in this case that the sentence of seven years' imprisonment with hard labour should be
reduced on account of the first appellant's previous clean record must fail.
The final argument which Mr. Agadzi addressed to us was that the position of the first appellant
ought not to have influenced the trial judge to pass a severe sentence. This is an ordinary case he
said, and an ordinary sentence below seven years' imprisonment would have been adequate.
We cannot accede to this argument. In determining a sentence, it is proper for the 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. In R. v. Cargin (1913) 8 Cr. App. R. 224,
CCA. at p.231, Channell 1., in dismissing an appeal against sentence, said as follows:
' An appeal has been made to us because of the serious consequences which a conviction has to a
man in this position. Punishment is sometimes imposed for the sake of others. This case revealed
a very unfortunate state of things at Hull; the place was infested with a plague of very juvenile
prostitutes. That being so, and a clear case found of a man assisting in that state of things, and
breaking the law, it was necessary to inflict a substantial punishment. In addition to this it is very
desirable, if possible, to pass a sentence on a man in a good position exactly the same as on a
man in a different position; it is true the sentence is harder, but the offence is correspondingly
greater; the man ought to know better, and the way of meeting that is to give exactly the same
sentence; the sentence is worse, but, by reason of the prisoner's position, the offence is worse.
Even if the Court thought itwould have only imposed a sentence of six months', instead of nine
months', imprisonment, it does not interfere with sentences on that ground alone.'
Finally, we would say that although the sentence appealed from may appear severe, we do not
think it is excessive in view of the gravity of the offence and the necessity for an exemplary
sentence. In the result we dismiss the appeal of the first appellant against his sentence of seven
years' imprisonment with hard labour."

THE GENERAL PART OF CRIMINAL LAW VOLUME I BY HENRIETTA MENSAH

BONSU
SPECIFIC DETERENCE
The effectiveness of deterrence as a purpose of punishment depends upon three important
factors, namely:(l) the certainty of punishment; (2) the fact that the unpleasantness of the penalty
would outweigh any advantage obtained by the commission of the offence; and (3) publicity.
Without publicity, the public would not know about the fate of offenders and therefore the
information which would encourage law-abiding behaviour would be unavailable.
PREVENTION
Punishment can prevent an individual from committing further crime. Imprisonment which is
one of the commonest sanctions in criminal statutes results in the individual being removed from
the community and incarcerated for a period of time. Such incarceration makes it physically
impossible for the criminal to commit like crimes and thus, the public is protected. However, in
most cases, this method of prevention is temporary as the criminal would return home after
serving the sentence, sometimes with even more sophisticated ideas on how to execute criminal
activities.

REFORM AND REHABILITATION

Adherents of the utilitarian theories also believe that with punishment should come the
possibility of first showing the individual the error in his or her ways and bringing about a
positive change in the life of such individual so that a criminal lifestyle would be forsworn in
favour of a more decent one. Such changeover also requires rehabilitating the individual. The
concept of rehabilitation involves providing assistance to enable an offender to adopt a life style
which is different from the old unproductive and criminal one. This need to rehabilitate is
premised upon the fact that whatever efforts at reform are made would come to nought if the
reasons for the adoption of a criminal life style are not tackled. Efforts are thus made to fill the
period of incarceration with work schedules so as to invest the offenders with employable skills.
Thus, during periods of imprisonment, there is the insistence on the learning of trades, etc. so
that people who took up a life of crime because they had nothing to do could be helped to lead an
honest life. This would in turn improve the number of law-abiding citizens and conversely
decrease the number of criminal elements.
In the Canadian case of R v Marisette (1970) 1 Canadian Criminal Cases (2d) 307 a judge stated
that,"... the public can best be protected by the imposition of sentences that punish the offender
for the offence committed, that may steer him and others from committing such an offence and
that may assist in his reformation and rehabilitation."
However, there are problems inherent in tying rehabilitation to reformation. One of the main
problems is that it has a tendency to increase the length of sentences, since many skills can only
be acquired after an extensive period of apprenticeship. Therefore, those who serve short
sentences cannot be usefully rehabilitated before they leave the prison precincts. This fact,
coupled with the poor after -care services available in this country, ensures that a person who
does not acquire the rudiments of the trade or other occupation within the prison is unlikely to do
so once outside official control. Therefore, reformation and rehabilitation cannot realistically be
the aim in imposing a short custodial sentence. However, it remains the hope that the convict
would have learned from the whole unpleasant experience that a life of crime does not pay.

ATONEMENT OR REPARATION
In some jurisdictions, a person may be allowed to make reparation for any damage caused to a
victim. In Ghana, there is only one instance in which reparation can be made within the criminal
justice system. Section 35 of the Courts Act, 1993 (Act 459) provides for the making of
reparation for economic offences against the State such as embezzlement, misappropriation of
State funds, etc. The effect of such reparation would be a reduced sentence, or a suspended
sentence that would have to be served in the event of failure to repay the amount found to have
been misappropriated.

NIGEL WALKER: SENTENCING THEORY, LAW AND PRACTICE (1985), pp 94-95

Whatever effect the sentencer expects to have on the future conduct of the offender, he must also
have in mind the likely effects of the sentence upon the conduct of other people. The effects
which sentencers most often hope for are deterrence and education.

JUSTIFICATION FOR PUNISHMENT

THE GENERAL PART OF CRIMINAL LAW BY HENRIETTA MENSAH BONSU
Some theorists maintain that imposing punishment on offenders upholds the majesty of the law,
since the law would be a toothless bulldog without its chief weapon. Others believe that it
re-affirms societal standards, and still others hold the view that it gives us a reason to obey the
rules. However, the central issue is to determine what the legal system's effectiveness would be if
there were no institution in the form of punishment, i.e. would the aims of the criminal law be
achievable if "punishment" as a weapon did not exist?

This theory has two figures namely, the classic theory; and the proportionality theory.
CLASSIC RETRIBUTIVE THEORY
Steeped in revenge – in the nature of Mosaic law – eye-for-an-eye – the offender should be paid
back in his own coin – lex talionis – the law of retaliation (under which punishment should be in
kind)
PROPORTIONALITY THEORY
The punishment must fit the crime.

CASES
CONCEPT OF RETRIBUTION
R v GOULD [1968] 2 QB 65
FACTS: The defendant pleaded guilty to bigamy, then sought to withdraw the guilty plea on
taking advice from Counsel on the grounds that at the time of his second marriage he held an
honest and reasonable mistaken belief that a decree absolute had been granted dissolving his first
marriage. The court refused him to withdraw his guilty plea on the grounds that according to the
case of R. v. Wheat (1921 2 King's Bench 119) an honest and reasonable mistaken belief that the
marriage had been dissolved was no defence. The defendant appealed. The appeal was allowed
despite the fact that there was a previous Court of Appeal precedent against the defendant.
HOLDING: Per Diplock LJ “In its criminal jurisdiction, which it has inherited from the Court of
Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same
rigidity as in its civil jurisdiction. If upon due consideration we were to be of opinion that the law
had been either misapplied or misunderstood in an earlier decision of this Court or its
predecessor the Court of Criminal Appeal we should be entitled to depart from the view as to the
law expressed in the earlier decision notwithstanding that the case could not be brought within
any of the exceptions laid down in Young v. Bristol Aeroplane Company Limited (1944 King's
Bench 718) as justifying the Court of Appeal in refusing to follow one of its own decisions in a
civil case (R. v. Taylor 1950 2 King's Bench 368). A fortiori we are bound to give effect to the
law as we think it is if the previous decision to the contrary effect is one of which the ratio
decidendi conflicts with that of other decisions of this Court or its predecessors of co-ordinate
jurisdiction.”

APALOO AND OTHERS v THE REPUBLIC [1975] 1 GLR 156-192

COURT OF APPEAL
AZU CRABBE, SOWAH, ARCHER JJA
FACTS: The first appellant who lives in Accra bought a printing machine and employed persons,
including Edmund Ampadu, well known for his criminal record for forged currency offences, to
use it in printing false currency notes for him at a secret place in the village of Manso. When he
apprehended danger of the printing machine being discovered at the village, he removed the
printing machine to his offices in Accra, where it was installed and the printing of the currency
continued. The evidence shows that the first appellant used George Bakuyeya and the other
appellants in pushing the printed false currency notes on the public. The evidence further shows
that the other appellants wilfully and knowingly participated in the criminal currency business
promoted by the first appellant. The appellant was therefore charged with five offences under the
Currency Act, 1964 (Act 242), including possession of implements for making notes contrary to
section 19 (a) (ii) and abetment of forgery contrary to section 32 of the Act. The other five
appellants, who wilfully and knowingly participated in the criminal currency business promoted
by the first appellant, were also charged on separate counts with offences under the Act. On
appeal against his subsequent conviction and sentence of fifteen years' imprisonment, counsel for
the first appellant contended that the trial judge had erred in law in (a) refusing an application by
the defence under Act 30, s. 268 (2) to tender in evidence a previous police statement by a
prosecution witness which was in conflict with his evidence on oath; (b) not upholding a
submission of no case made on behalf of the first appellant; and (c) not directing the jury on the
legal meaning of accomplice. Counsel also alleged various misdirections to the jury as to the
law and the evidence. The other five appellants appealed against sentence only.
HOLDING: Held, dismissing the appeal against conviction and upholding in part the appeals
against sentence:
Per AZU CRABBE C.J. “The determination of the length of sentence within the statutory
maximum sentence is a matter within the discretion of the trial court, and the courts always act
upon the principle that the sentence imposed must bear some relation to the gravity of the
offence: In determining the length of sentence, the factors which the trial judge is entitled to
consider are: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by
law-abiding citizens of the society for the particular crime; (3) the premeditation with which the
criminal plan was executed; (4) the prevalence of the crime within the particular locality where
the offence took place, or in the country generally; (5) the sudden increase in the incidence of the
particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good
character and the violent manner in which the offence was committed.”

MELFA v. THE REPUBLIC [1974] 1 GLR 174-176

COURT OF APPEAL
SOWAH, ARCHER AND ANNAN JJA
FACTS: The appellant was convicted by the High Court, Accra, for the manslaughter of Robert
Mensah, an international football star, and sentenced to eight years' imprisonment with hard
labour. The evidence showed that the appellant had gone to a bar to have a drink and was sitting
at a table quite different from that at which the deceased and his friends were. When the
appellant tried to separate the deceased, who had picked a fight with one of his friends, he was
beaten up and thrown onto a fence by the deceased. Upon the advice of some friends, the
appellant left the bar but was shortly after followed by the deceased who had removed his shirt
and who attacked the appellant again by beating him up. 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 the appellant stabbed him. Robert Mensah died in hospital of the wounds he
sustained. Upon this evidence the jury returned a verdict of guilty of manslaughter and the
learned trial judge imposed a sentence of eight years' imprisonment on the appellant on the
ground that this was a crime of violence. On appeal counsel for the appellant submitted that in
pronouncing sentence the learned judge should have taken the fact that the evidence showed
clearly that the deceased was a man of violent temper coupled with the fact that the deceased was
the instigator by the evidence throughout the altercation which resulted in his death into
consideration and that in the circumstances of this case the sentence was harsh and excessive
HOLDING: Held allowing appeal against sentence but dismissing appeal against conviction.
Per SOWAH J.A “We think that each crime of violence should be considered on its own merits
when inflicting penalty on the perpetrator and that if the learned judge had considered all the
facts in relation to the crime, he would not have imposed such a long sentence. In the case of
Lamptey alias Morocco v. The Republic [1974] 1 G.L.R. 165, C.A. this court altered the verdict
of murder to that of manslaughter and awarded a sentence of three years' imprisonment with hard
labour in circumstances almost similar to those before us now, that is to say, where the deceased
himself was the aggressor and met his death in the fight which ensued. Having regard to the facts
of this case which appear to have been accepted by the jury we think a sentence of four years'
imprisonment with hard labour is adequate and reasonable. Accordingly, we dismiss the appeal
on conviction, allow the appeal on sentence and substitute a sentence of four years' imprisonment
with hard labour for the penalty imposed by the learned judge”

ASAMOAH v. THE REPUBLIC [1973] 1 GLR 186

HIGH COURT, SUNYANI
OSEI-HWERE J
FACTS: The appellant was convicted on 28 February 1972 by the district magistrate, Grade II,
Techiman, for selling a cake of New Sunlight soap at 15p. instead of at the controlled price of
10p. fixed by the Price Control (Maximum Prices) Order, 1969 (E.I. 135 of 1969), contrary to
sections 1 and 2 of the Control of Prices Act, 1962 (Act 113). She was sentenced to a fine of
¢80.00- or three-months’ imprisonment with hard labour. At the time of the alleged offence, Act
113 had been repealed and had been replaced by the Price Control Decree, 1972 (N.R.C.D. 17).
By E.I. 17 of 1972 made on 7 April 1972 pursuant to N.R.C.D. 17 the controlled price of a cake
of New Sunlight soap was fixed at 14p. instead of 10p. in the Techiman area. In framing the
charge Act 113 was quoted instead of N.R.C.D. 17. At the time the appellant was charged, the
cedi had been devalued with a consequent rise in the prices of commodities. On appeal to the
High Court against her conviction and sentence, counsel for the appellant contended (1) that the
conviction was bad in law because the charge was brought under an enactment which was then
non-existent and (2) that the sentence was excessive having regard to the circumstances of the
case.
HOLDING: Held, dismissing the appeal:
“In regard to sentence I cannot shut my eyes to the mischief that E.I. 17 of 1972 set out to cure. I
am bound to take judicial notice that at the time N.R.C.D. 17 was made the value of the cedi had
fallen and the prices of commodities had soared. E.I. 17 was intended to make the consequent
adjustment in the prices of commodities. If E.I. 17 of 1972 had come into effect soon after
N.R.C.D. 17 the appellant might have been caught by those provisions and the illegal profit she
made would have been only one pesewa. Even though the appellant, technically, ought to have
sold the soap at 10p. it would have been absurd to hold her to that price in the light of the
economic conditions of the day. It is for these reasons that I feel that the fine of ¢80.00 was
rather excessive and that the appellant was entitled to some leniency. I accordingly allow the
appeal against sentence and, in lieu of the fine of ¢80.00- or three-months’ imprisonment with
hard labour, I substitute a fine of ¢10.00 or one-month’s imprisonment with hard labour. The
excess fine of ¢70.00 if paid should be refunded forthwith to the appellant. To this extent of
varying the sentence I dismiss the appeal”

UTILITARIAN THEORIES
KWADU v. THE REPUBLIC [1971] 1 GLR 272-28
HIGH COURT, KUMASI
TAYLOR J.
FACTS: The appellant was tried summarily and convicted in the circuit court, having been found
guilty of possessing three forged Bank of Ghana ten new cedi notes contrary to section 18 (2) of
the Currency Act, 1964 (Act 242). When he admitted to one previous conviction for stealing,
and one for attempted stealing, he was sentenced to seven years' imprisonment with hard labour.
It is against the conviction and sentence that the appellant appealed to the High court. At the
summary hearing the appellant abandoned the appeal against his conviction and sought to appeal
against the sentence on the ground that the sentence was excessive. On appeal, against the
sentence, it was submitted that since the case had been tried summarily the circuit court had no
jurisdiction to impose a sentence of more than two years' imprisonment, that is a sentence higher
than that which a district court trying the same case could pass.
HOLDING: Held, allowing the appeal against sentence:
“Although the appellant had two previous convictions two years ago at which time, he was
sentenced to three months' imprisonment with hard labour, it seems to me that the highest
punishment he was shown to have been given was only three months' imprisonment with hard
labour. To jump from a pattern of a prison term sounding in a few months to imprisonment for
seven years is very grave indeed and there must be very good reasons why the appellant was so
harshly treated. I see none here: The details of the previous convictions which the circuit court
thought showed criminal proclivities were not apparently given to the court. The case itself has
no aggravating circumstances. It is of course right that the appellant be tried in the circuit court
as it seems that these currency offences were becoming rampant and the restriction on the powers
of district courts aforesaid makes a recourse to the district courts inadvisable in this case. In my
view, imprisonment for a term exceeding the limits of the district court is called for in this case.
It ought to be a term harsh enough to be a deterent and short enough to satisfy the reformative
element in criminal justice. It is for these reasons and not because the circuit court lacks
jurisdiction to impose the sentence that it imposed, that I allow the appeal against sentence. The
appeal against sentence is allowed. The sentence of seven years' imprisonment with hard labour
is quashed and in its place is substituted a sentence of three years' imprisonment with hard
labour.”

HARUNA v. THE REPUBLIC [1980] GLR 189-192

HIGH COURT, TAMALE
TAYLOR J
FACTS: The appellant originally appealed against his conviction and sentence for possessing
Indian hemp contrary to sections 47 (1) and 57 (1) of the Pharmacy and Drugs Act, 1961 (Act
64), as amended. The quantity of Indian hemp involved was quite heavy since it weighed 17,706
grammes. When the appeal came on for hearing, counsel for the appellant abandoned the appeal
against conviction because the evidence in support of the offence of possessing Indian hemp was
so overwhelming that the most honourable thing for any offender who is remorseful is to throw
in the towel and abandon an appeal which any tribunal bent on doing justice, will, without
hesitation, dismiss summarily. The appellant, however, appealed against a deterrent sentence of
eight years imposed on him by the trial circuit court on account of his age coupled with the fact
that this was his first offence of possessing Indian hemp contrary to sections 47 (1) and 57 (1) of
the Pharmacy and Drugs Act, 1961 (Act 64)
HOLDING: “In this case the provisions of section 57 (3) of Act 64, mandatorily stipulate that the
offence of possessing Indian hemp must carry a sentence of a least five years unless conditions
spelt out in the proviso to that section are satisfied. These conditions are inapplicable here so
prima facie the appellant must by law be mandatorily given at least five years' imprisonment
with hard labour. The learned circuit court judge, however, set out to award a deterrent sentence.
He was certainly entitled in his discretion to award a deterrent sentence if the circumstances of
the case called for it. The question of sentence is a matter of discretion with all courts of justice.
The discretion, however, is exercisable on well-known principles In the instant case, having
regard to other relevant circumstances such as: (i) the accused being a first offender and aged
only 26; (ii) the smallness of the amount, i.e. less than ¢480 to be realised from the sale of the
Indian hemp found in his possession and (iii) the economic conditions in the country which have
reached such a high pitch that the average earnings of the average person seemed insufficient for
the essentials of life, the deterrent sentence of eight years imposed on the appellant was improper
and would therefore be set aside. In the circumstances, I set aside the sentence of eight years'
imprisonment with hard labour and in its place substitute a sentence of five years' imprisonment
with hard labour. The appeal against sentence is accordingly allowed to the extent indicated in
this judgment.”
ABU AND OTHERS v. THE REPUBLIC [1980] GLR 294-302
HIGH COURT, TAMALE
TAYLOR J
FACTS: The appellants, all adult first offenders, were tried and convicted, after having been
found guilty of conspiracy to steal and stealing 30 bags of cement belonging to Messrs. A. Lang
Ltd. at a work site in Nyankpala. The first and second appellants were sentenced to three years'
imprisonment with hard labour on each of the conspiracy count and eighteen months'
imprisonment with hard labour on the stealing count, both sentences to run concurrently. The
third and fourth appellants were acquitted and discharged on the stealing count, but sentenced to
three years' imprisonment with hard labour on the conspiracy count. All the appellants appealed
against their convictions and sentences. On appeal against their conviction and sentence, counsel
for the appellants submitted that the trial circuit judge should have considered certain mitigating
factors favouring the appellants, and also the harsh and deteriorating economic conditions which
tempted the appellants to commit the crimes in question.
HOLDING: Held, allowing the appeal against sentence
(a) in imposing sentence, it seemed that the court had a duty to consider all aggravating and
mitigating circumstances. The appellants aged between 37 and 42 years were all first offenders,
and the trial circuit judge should have taken that into consideration in determining the sentence
to be imposed on the appellants; (b) although it was common knowledge that the economic
conditions in the country at the moment had reached a stage where the average person was
finding life really unbearable to the extent that if the economic situation was not put on an even
keel many persons would be turned into petty criminals, it would however be dangerous not to
impose a custodial sentence, since the court might be accused of encouraging dishonesty and
introducing necessity as a major and mitigating factor in crime. Whatever mitigating influence
this factor might have, it ought not to have the effect of totally obliterating the legal
consequences of crime by sanctioning or encouraging probation. Its only effect might be to
discourage very severe and harsh sentence.

ADU BOAHENE v. THE REPUBLIC [1972] 1 GLR 70-78

IN THE COURT OF APPEAL
AZU CRABBE J.S.C., LASSEY AND JIAGGE JJA.
FACTS: The complainant in this case, a petrol dealer, alleged that he was violently robbed at
about 9 p.m. one evening while carrying money in a bag from his petrol filling station to his
house. Not long after the robbery he took the police to the house of the appellant whom he
identified as one of the three robbers. He alleged that he had known the appellant at his filling
station for about two years and this was confirmed by one of his attendants at the station. The
appellant denied the allegation against him and said that since he was not at the scene of the
crime at all, the witnesses were mistaken. The only issue at the trial was whether the appellant
was one of the robbers. The appellant appealed against a conviction and a fifteen-year jail
sentence imposed by Koi Larbi J.S.C. On appeal, counsel argued on behalf of the appellant inter
alia that the sentence of fifteen years' imprisonment with hard labour, is excessive, having regard
to the previous clean record of the appellant.
HOLDING: Held, dismissing the appeal
Per Azu Crabbe JSC “In Kwashie v. The Republic [1971] 1 G. L. R. 488, C.A. it was held by
this court that where an offence is of a very grave nature, the sentence must not only be punitive,
but it must also be deterrent or exemplary in order to mark the disapproval of society of the
particular offence. When the court decides to impose a deterrent sentence the good record of the
accused is irrelevant. There can be no doubt that the crime of robbery is prevalent in this country,
and that recently there has been a sudden increase in its incidence. We are satisfied that the
learned trial judge must have taken into consideration the prevailing wave of robbery in the
country when he imposed what is obviously a deterrent sentence. The sentence may appear
severe, but we find nothing wrong in principle [p.78] with the sentence of fifteen years'
imprisonment with hard labour for robbery in the present circumstances. We therefore dismiss
the appeal against sentence.”

KWASHIE AND ANOTHER v. THE REPUBLIC [1971] 1 GLR 488-496

IN THE COURT OF APPEAL
AZU CRABBE, ANIN AND ARCHER JJA
FACTS: 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, submitting: (1) that the trial judge gave no
reasons for the severe sentence that he passed on the first appellant; (2) that having regard to the
value of the goods stolen the sentence was excessive; (3) that the first appellant was a first
offender and ought to have been more leniently dealt with and (4) that the mere fact that the first
appellant was a police officer was not by itself a good enough reason for imposing an unusually
harsh sentence.
HOLDING: Held, dismissing the appeal:
Per AZU CRABBE J.A. “The first appellant was a police officer trained in the detection of
crime. In recent months there has been a sudden increase in the incidence of trafficking in
contraband goods, and this has caused a great deal of public anxiety. The first appellant must
have known that this offence was particularly grave, from the public point of view, because of
the severe damage it does to this country's economy, which is already fragile. In collaboration
with two other police officers, the first appellant used his office as a police detective to seize a
large quantity of goods which had been smuggled into this country. The bus carrying the goods
passed through the Afienya barrier without inspection in a manner which leaves this court in no
doubt that it was all prearranged. The goods were not sent to the Tema Police Station, but to the
private house of one of the accomplices in Accra for the purpose of selling them for the joint
benefit [p.494] of all who participated in this criminal adventure. Apart from one case of
tobacco, none of the other goods have been recovered. We cannot but remark that there have
been persistent rumours in this country that some police officers are in collusion with smugglers
of contra-band goods from neighbouring countries and elsewhere.
Upon these facts, which reveal an offence of a very grave nature, the sentence must not only be
punitive, but it must also be a deterrent or exemplary. The sentence must mark the disapproval
of our society of such conduct by police officers. Where the 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. Thus, in R. v. Goldsmith and Oakey [1964] Crim.L.R. 729, C.A. where two
police officers appealed against their sentences of four years' imprisonment each for conspiracy
to pervert the course of justice, the court said: "When however one is giving deterrent sentences,
and this was a deterrent sentence, it does not seem to the Court that it is proper to take into
consideration the individual circumstances, whether it be record or of service."

DABLA AND OTHERS v. THE REPUBLIC [1980] GLR 501-520

HIGH COURT, BOLGATANGA
TAYLOR J
FACTS: The four appellants, who were unrepresented by counsel, were arraigned before the
Circuit Court, Wa, charged jointly with the offences of conspiracy to steal and stealing, inter alia,
eighteen cartons of Embassy cigarettes. They pleaded guilty to the charge of stealing and not
guilty of the conspiracy count. After their plea, the prosecution on application amended the
quantity of Embassy cigarettes to sixteen. But the appellants did not plead to the amended
charge. The prosecution then gave as the facts of the case it intended to prove that the first and
second appellants whilst coming from the cinema in the evening met the third appellant who
informed them that a cigarette van had been parked in front of the office of the Pioneer Tobacco
Co. (P.T.C.), Wa and advised that they should break into the van and take some of the cigarettes.
Whilst en route to the P.T.C. offices they met the fourth appellant and on learning that he was
looking for some cigarettes invited him to join them. With the aid of an iron bar brought by the
third accused the appellants broke into the van and stole the cigarettes. The theft was noticed the
following morning and upon investigation by the police the appellants were arrested. The first
and fourth appellants helped the police to retrieve all the stolen cigarettes. After this narration by
the prosecution, the trial judge invited the appellants to reconsider their plea of not guilty to the
charge of conspiracy. He then referred the appellants to the provisions of the Criminal Code,
1960 (Act 29), s. 23 (1) and said that since there had been an overt act by the appellants
apparently to appropriate the cigarettes, conspiracy could be inferred. He told the appellants that
in any case any sentence he would impose on the stealing count would be concurrent with any
sentence on the conspiracy charge. The charges were then read de novo and each appellant
pleaded guilty to the charge of conspiracy. The trial judge noted that the first and third
appellants had had previous convictions for stealing although they had had clean records for
three years before the instant case. The third appellant said to be the architect of the crime was
given seven years' imprisonment with hard labour on each count and the first, second and fourth
appellants received five years imprisonment with hard labour on each count. The sentences were
to run concurrently. All the four appellants personally filed grounds of appeals differently
worded but complaining against the conviction and the sentence on various grounds but
substantially identical, inter alia, with those put forward by counsel for the first and fourth
appellants.
HOLDING: Held, allowing the appeal in part:
In these appeals I note that the appellants are all young persons. They all pleaded guilty and two
of them helped the police to retrieve the stolen articles. They made no attempt whatsoever to
waste the time of the court and their conduct showed remorse. There was no premeditation and
the offence seemed to have been committed on the spur of the moment as they were returning
from the cinema. The second and fourth appellants are young offenders with no previous
convictions. I have said many times in this court, in the course of criminal appeals, that when
young offenders have their first brush with the law, it is essential for the purpose of the
reformative element in criminal justice that as a general rule they are not given custodial
sentences unless the trial court has legally no other alternatives or a non-custodial sentence is on
principle and for good reasons not feasible. If this approach is not adopted and such young
persons are invariably sent to prison on their first going wrong, they will obviously get
contaminated by contacts with hardened criminals. This will certainly not be in the interest of
the public, for it may launch those inexperienced and impressionable young persons on a life of
crime as they rub shoulders with the garrulous criminal recidivists
G/CPL VALENTINO GLIGAH & ANOR v. THE REPUBLIC [06/05/2010] CRIMINAL
APPEAL NO. J3/4/2009
SUPREME COURT
BROBBEY (PRESIDING), ANSAH, DOTSE, YEBOAH, BAFFOE-BONNIE JJSC
FACTS: The accused/appellants, who at all material times were policemen, had been charged
with the offence of Rape contrary to section 97 of the Criminal and Other Offences Act, 1960
(Act 29) as amended by Act 458 (1993), tried and convicted by a Court with jury and sentenced
to 15 years imprisonment each, with hard labour on the 18th day of July, 2003 by Avril
Anin-Yeboah J (Mrs). On the 13th day of November 2008, an appeal against the conviction and
sentence of the accused persons was unanimously dismissed by the Court of Appeal. It is against
this Court of Appeal decision that the accused persons appealed to the Supreme Court. The court
unanimously upheld the decision of the Court of Appeal and dismissed the appeal.
HOLDING: Per Dotse JSC “There is no doubt that as a nation, apart from the menace of
narcotics and armed robbery, rape and defilement cases are on the ascendancy. This therefore
leaves no one in doubt that there is the need for a concerted effort to remove and destroy this
dangerous canker of rape from our society. The moral decadence that the country has sunk into
makes it imperative for all and sundry, especially the law enforcement agencies like the courts to
be at the vanguard of this crusade. We are therefore of the opinion that, once the quilt of an
accused person has been established in a criminal trial using the accepted standard and or burden
of proof, the issue of punishment must be considered using different criteria. This is because, in
imposing sentence on a convicted person, the courts normally take into consideration factors
such as whether the sentence is of a deterrent, reformative, or retributive nature. Sometimes, the
criminal and previous antecedents of the accused are taken into consideration. In the present
case, the accused persons who are policemen and mandated to maintain law and order but have
rather become the perpetrators of crimes against innocent law-abiding citizens who they are to
protect must receive harsh and deterrent sentences”

SECTION 3

ELEMENTS OF CRIMINAL LIABILITY

The physical element and the mental element.
1. THE PHYSICAL ELEMENT (the commission of a prohibited act)
i. Omission to act:
CRIMINAL OFFENCES ACT, ACT 29 SECTION 79
79. (1) The following shall apply in respect of a duty to give access 10 the necessaries of health
and life which shall be determined By the court
(a) a spouse is under a duty to give access to the necessaries of health and life to his or her
spouse being actually under his or her con troll:
(b) a parent is under a duty to give access to the necessaries of health and life to his child
actually under his control not being such age and capacity as to be able to obtain these
necessaries;
(c) a guardian of a child is under a duty to give access to the necessaries of health and life to
his ward actually under his control.
When a man has failed to provide the necessaries of health and life to his child according to his
means, his failure to so provide would be nonaccidental. Therefore his deliberate omission to act
as prescribed by the law would be the basis for his liability. Such liability would not arise where
the party's failure to act was not by a conscious exercise of will or by deliberate choice, e.g.
where a father is unable to perform the duty to maintain by reason of poverty.

KILBRIDE V LAKE (1962) NZLR 590 at 593

FACTS: (Accused drove and parked a car on a street. In his absence, someone removed a
warrant of fitness that he was required to display on the windshield. He was charged with
permitting a car to be on the road and failing to display a warrant.)
HELD, per WOODHOUSE J:
It is of course difficult to demonstrate that an omission to act was not. in a causal sense, an
omission which produced some event...in my opinion, it is a cardinal principle that altogether
apart from the mental element of intention on knowledge of the circumstances, a person cannot
be made criminally responsible for act or omission unless it was done or omitted in
circumstances where there was another cause open to him. If this condition is absent, any act or
omission must be involuntary, or unconscious, or unrelated to the forbidden event in any causal
sense regarded by the law as involving responsibility.

HUGHES, GRAHAM: CRIMINAL OMISSIONS (1957/58) 67 YALE LAW JOURNAL 590

All regulation must be concerned with the things we ought not to do, the things we may do and
the things we ought to do. The law is composed of hypothetical patterns of conduct - conduct
from which we must abstain on pain of sanction, conduct which we must pursue to attain certain
ends and, more rarely, conduct which we must follow to avoid penalty. In criminal law, the
classic picture has been of a body of prohibitions, but the criminal law has never been
exclusively prohibitive. And this is not surprising, for even the Decalogue contains incitement to
positive action and the western religious concept of sin has always contemplated inactivity as
sometimes immoral. But, for the most part, our criminal law in its progress has only occasionally
and almost reluctantly admitted the offense of omission within its scope. In recent decades the
picture has been changing, and one of the most significant features of the modern development
of penal laws has been the widening range of liability for crimes of inactivity. But this
contemporary development has received little explicit treatment from modern Anglo-American
writers on criminal law.
"An omission," wrote Stroud, "is not like an act, a real event, but is merely an artificial
conception consisting of the negation of a particular act." By this is presumably meant that an act
is sensible to feeling and to sight, while an omission is not observable by the senses but is only a
significance legally attributed to passivity. Bishop, too, perhaps had this in mind when he wrote:
"A neglect is not properly an act, yet in a sense it is. It is a departure from the order of things
established by law. It is a checking of action; or it is like the case of a man who stands still while
the company to which he is attached moves along, when we say, he leaves the company."
These statements are valuable in pointing to the essential nature of an omission, but they suffer
from a failure to specify the exact sense in which they use the idea of an act. "Act" must be
defined before an omission can be distinguished; and no agreed juristic concept of an act exists.
Austin defined an act as a motion of the body consequent upon a determination of the will, but
this approach implies a concept of volitions which has now been sufficiently exploded by
Professor Ryle. Holmes regarded an act as a "voluntary muscular contraction," which might be
more acceptable, if "voluntary," is suitably defined. For the purposes of the criminal law, neither
definition is very helpful. The criminal law never prohibits mere muscular contractions. It is not
yet an offense to twitch. What the criminal law prohibits is muscular contractions in certain
circumstances and, perhaps, productive of certain consequences. The act of homicide in any
particular instance must include the accompanying circumstance of the victim's existence and
the consequence of the victim's death. The only fruitful concept of an act for the criminal law
must synthesize the defendant's physical movements with external accompanying circumstances
and, sometimes, with certain consequences.

NB:
To establish a criminal liability, the physical act known as the Actus reus should be proven
together with the prohibited state of mind with which the act was committed – which is the
mental part
It is expressed 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

GENERAL RULES AND PRELIMINARY OBSERVATIONS –SECTIONS 4, 5, 8, 9 AND

10 OF CRIMINAL OFFENCES ACT, ACT 29
SECT4 (1) This Act shall not be construed strictly, either as against the Republic or as against
a person accused of a criminal offence, but shall be construed amply and beneficially for giving
effect to the purposes of this Act.
SECT4 (2) In the construction of this Act, a Court is not bound by a judicial decision or
opinion on the construction of any other enactment, or of the common law, as to the definition of
a criminal offence or any other offences or of an element of a criminal offence or of any other
offence.
SECT4 (3) The illustrations set out in this Act form part of this Act and may be used as aids of
construction, but they do not limit of the generality of a provision of this Act.
AWEDAM v THE REPUBLIC (1982-83) GLR 902, CA
FACTS: The appellant, A, the driver of a Range Rover vehicle, was arraigned before court on a
charge of murder arising from his knocking down and killing one C with the vehicle on 4
February 1978. He denied the charge. At the trial one P, a friend of the deceased, in his testimony
for the prosecution, informed the court that following a complaint he had made to the police
against a friend of A, that friend was tried and convicted for selling a tin of milk above the
controlled price and sentenced to four months’ imprisonment on 2 February 1978. C had testified
for the prosecution at that trial. After the trial, A accosted the two of them, i.e. he and C and
threatened that because they had caused his friend to be jailed he would kill them within three
days. That very evening, A repeated his threat when he met the two of them at the local cinema
palace. He further testified that at about 3 p.m. on 4 February, he was walking alone on the main
road in their town when alarmed by frantic shouts of danger at the approaching of a vehicle
behind him, he jumped over and fell beyond the gutter. A Range Rover then whisked past where
he had been walking a moment before. The appellant, A, turned out to be the driver of that
vehicle. M, the sixth prosecution witness, also testified that at the time of the accident he was
walking with C close to the gutter of the main road when A drove past them at great speed in the
other lane . Some few minutes later they saw the Range Rover about a hundred yards away and
driving towards them at great speed. But at about four yards to them the vehicle swerved directly
at them and struck C across the gutter and the vehicle continued to speed on until it came to a
stop about 300 yards away. His evidence was corroborated by the seventh prosecution witness
who was at the scene of the accident. A in his defence denied that he was over-speeding. He
claimed that the killing was accidental and that at the time the vehicle struck C, he had swerved
to the right to avoid collision with a tractor which had taken part of his lane and as he did so he
bumped into a pot- hole which caused his front tyre to burst or deflate and as a result, he lost
control of the vehicle and when he applied the brakes they failed; and as the vehicle went off the
road it struck C. He also denied threatening C and P on 2 February 1978. He claimed that on that
day he had obtained permission from his employers and travelled to Walewale to attend a
relative’s funeral. His alibi was supported by a co-worker and two of his relatives at Walewale.
After the judge had summed-up the law and the facts to the jury, the jury convicted A of murder.
On appeal by A against the verdict, counsel contended, inter alia, that the judge in his
summing-up: (i) gave inadequate direction on the defence of accident; (ii) gave inadequate
consideration of and direction on the plea of alibi on the issue of intent, thus rendering that
direction improper. He further contended that a statement in the summing-up that” At the same
time you must be careful not to err against the State, because all the work we should have done
will be useless” was prejudicial to A in that the jury must have felt they had to convict A in any
event.
HELD, Mensa Boison JA:
the law required the issue whether the killing was intended or accidental to be left to the jury,
since that issue was a question of fact. Whatever form the direction took, it would be sufficient if
the jury were told that it was for the prosecution to satisfy them beyond reasonable doubt that the
killing was intended, and that if they were in reasonable doubt about that, or if they believed the
version of the appellant that it was accidental or that on the whole of the evidence they were in
doubt as to whether the killing was intentional or accidental, then they should acquit him of
murder. On the evidence, the judge not only fully dealt with the defence of accident in his
summing-up to the jury but also directed that if they should come to the conclusion that the death
was accidental then the appellant could not even be guilty of the minor offence of reckless
driving. The summing-up on the defence of accident was therefore properly done.
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. If the jury
accepted the appellant’s defence of accident or were left in doubt, they would be entitled to find
him not guilty of murder. Furthermore, it was essential to let the jury appreciate that the failure of
the alibi did not relieve them of being satisfied that the prosecution had proved that the harm to
the deceased was caused intentionally and further that the appellant caused it intending to kill.
On the evidence, the judge did sufficiently review the evidence of the three witnesses called by
the appellant to establish his alibi and properly left to the jury, the conclusion which they might
arrive at regarding the weight of the evidence and the appellant’s denial of any threats. And
although the judge did not specifically impress upon the jury that if they found the appellant’s
alibi untrue that, by itself, did not conclude that he was at the district court and did threaten C
and D, the judge appreciated and conveyed to the jury the burden on the prosecution.
Consequently, the omission did not disable the jury from appreciating that they were primarily to
consider whether the killing on 4 February was sufficiently proved by the prosecution to have
been intentional as against the defence of accident. The omission therefore did not occasion any
miscarriage of justice. R. v. Ahenkora and Badu [1960] G.L.R. 160 at p.165, C.A. cited.
Penal enactments must be construed beneficially, equally for the citizen as for the Republic.

STATE v OBENG & ORS (1967) GLR 91

FACTS: K. and A. were held in protective custody in Ussher Fort Prison following the coup of
24 February 1966. Their detention was authorised by N.L.C.D. 2. It was alleged that K. wrote a
letter, handed it to A. who in turn handed it to O., a prison officer, who was to convey it out of
the prison. Before O. went off duty, he was summoned from his post and searched. Hidden in his
puttees were two letters, the one allegedly written by K. and another addressed to one B.B. On
the basis of these facts, O. was charged in count (1) with smuggling from a prisoner in that
without authority from the prison superintendent he conveyed a letter from K. through A., both
being prisoners; and in count (2) with attempting to smuggle the said letter out of prison. In
count (3), K. and A. were charged with abetment of smuggling things out of prison. O. was
further charged in count (4) with attempting to smuggle out of prison the letter addressed to B.B.
The trial circuit judge made no findings of fact with regard to count (1), which he dismissed on
the ground that K. and A. were not prisoners, not having been “committed to prison” by a court.
With regard to count (2), the trial judge held that since some of the material particulars in count
(1) were repeated in count (2), it was bad for duplicity. He further held that even assuming the
prosecution’s version of the facts was correct there was no attempt to convey a thing out of
prison without authority. Count (3) therefore fell with count (2), as did count (4) since the act
complained of was not an attempt.
HELD, per Amissah JA:
By section 4(a), the courts are enjoined not to construe the Code strictly either as against the stale
or as against the accused: but the Code should be construed amply and beneficially for giving
effect to its purposes.

REPUBLIC v TOMMY THOMPSON BOOKS & ORS (No 1) [1996-97] SCGLR 312
FACTS: Following some publications the accused persons made against the first lady, Nana
Konadu Agyeman Rawlings in the Free Press newspaper, they were arraigned before the Circuit
Court, Accra on a charge of criminal libel contrary to section 112 of the Criminal Code, 1960
(Act 29) . A preliminary legal objection raised by the accused persons to the jurisdiction of the
court and the propriety of the charge was dismissed by the trial court, and, on their appeal from
that ruling, by both the Court of Appeal and the Supreme Court. At the subsequent hearing
before the circuit court, the accused persons raised another preliminary objection to the
jurisdiction of the trial court on the ground that sections 112 and 117(1)(h) of Act 29 were
inconsistent with and in contravention of the letter and spirit of the Constitution, 1992,
particularly articles 162(1) and (4) and 164. The trial court therefore referred the issue to the
Supreme Court under article 130(2) of the Constitution, 1992 for determination. At the hearing,
the accused contended, inter alia, that (a) the law of criminal libel under section 112 and
117(1)(h) of Act 29 constituted an unreasonable limitation on the freedom and independence of
the media under article 162(1) and were not reasonably required within the meaning of article
164 of the Constitution, 1992; (b) the effect of section 112 of Act 29 was to pernalise the
mass-media in direct contravention of article 162(4) of the Constitution, 1992; and (c) the onus
placed on an accused in a criminal libel case by section 117(1)(h) to prove both the truth and the
public benefit of the publication as a defence was unconstitutional.
HELD, per Acquah JSC: inter alia, that the Court is not bound to consider the historical
evolution of any offence whose origins are rooted in English law even though the Ghana Legal
System is derived from the English system:

SECT 5 Where under a provision of a law other than this Act. an offence is created, this
Part shall apply, except where a contrary intention appears, to the offence as it applies to a
criminal offence under this Act.

REPUBLIC v MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH & ANOR (No 2) [1973]

2 GLR 445
FACTS: The appellants had been convicted of conspiracy to commit subversion. Appellants
argued that no such offence existed under the offence-creating statute.
HELD: if any conduct is alleged to be an offence under any law, the accused can in addition to
the substantive offence, be charged with any other offence in Part I of the Code, although the
other enactment does not specifically mention the offence in that part of the Code. Therefore the
language of Section 5 is wide enough to allow the formulation of a charge of conspiracy,
although the offence did not exist under the particular enactment. I See also: [1976] 2 G.L.R. 5,
C.A.

2. ACTUS REUS

R v GIBBONS & PROCTOR (1918) 13 CRIM. APP. 134

FACTS: The defendants were convicted of the murder of Gibbins’s daughter Nelly, a girl of
seven. In short, it was being alleged that she died of starvation as the result of a long course of
cruelty and neglect at the hands of both appellants. In addition, before the trial opened,
application was made on behalf of both prisoners that they should be tried separately. However,
this application was refused. The main issue in the case was whether or not murder by omission
could occur.
HOLDING: Gibbons and Proctor were both found guilty of murder. The court decided that
murder can be committed by a failure to act in circumstances where a duty of care to the victim
is imposed on the defendant.
The Court suggested it was self-evident that the father was under a duty to look after his own
child. Although the child did not belong to his wife biologically, she was also found to be under
such a duty. This is because she had taken money for food from her husband which could have
been used to feed the victim. The Court also said that a calculated and deliberate strategy of
starving someone to death must clearly be capable of constituting a killing.

REGINA v CHARLSON [1955] 1 W.L.R. 317

FACTS: The accused, who was a shopkeeper, lived in a house the back-room windows of which
overlooked a river two feet deep. The accused called his ten-year-old son Peter into the back
room telling him that there was a rat to be seen standing on a stone in the river. When the boy
came to the window the accused picked up a wooden mallet from the floor and struck the boy
twice on the head, breaking the skin of the scalp and causing blood to flow. The boy tried to
defend himself from further attack by wrapping his head in a towel. The accused thereupon
picked the boy up and threw him out of the window. The boy fell twenty-five feet into the river
and suffered severe injuries to his leg and arm. He eventually managed to crawl out of the river
and call for assistance.
When the accused was interviewed by the police he appeared to be very distressed and
bewildered. He admitted that he had *318 struck the boy but he did not know why he had done
so. A full account of his statements to the police and his demeanour upon apprehension is given
as, Evidence was given by the prison medical officer that the accused was sane and that he had
no disease of the mind whatsoever. On the other hand, clinical examination and the history of the
case pointed to the possibility that the accused was suffering from a cerebral tumour, in which
case he would be liable to a motiveless outburst of impulsive violence over which he would have
no control at all; and during such an outburst he would not know the difference between right
and wrong.
HELD, per Barry J:
The charges are three in number. The first and most serious one is the charge of causing grievous
bodily harm to this little boy — Peter Stanley Charlson — with intent to murder him. The second
alternative charge, which is somewhat less serious than the first, is a charge of causing grievous
bodily harm to this little boy with the intention of causing him grievous bodily harm. The third
and least serious of the three charges, is the charge of inflicting grievous bodily harm upon this
boy without any specific allegation as to his intention. In relation to the first two charges it is
necessary for the prosecution to prove the intention alleged in the indictment. That is to say, in
relation to the first charge, the prosecution must satisfy you not only that the accused man did
cause grievous bodily harm to his son, but also that at the time he did so he intended to murder
this boy. Nothing short of that will suffice. Both the act of causing grievous bodily harm and the
intent to murder must be established to the complete satisfaction.
The law stands, …in the case of certain diseases, a person suffering from the disease may be
deprived of the control of his actions. A man in the throes of an epileptic fit does not know what
he is doing. If a friend bends over to assist him, and in the midst of his fit the epileptic grips that
friend by the throat, not knowing what he is doing, and in so doing throttles the friend and causes
his death, no offence has been committed against the criminal law; because the actions of an
epileptic are automatic and unconscious and his will or consciousness is not applied to what he is
doing…

BRATTY v A-G FOR NORTHERN IRELAND (1961) 46 CR. APP. R 1

FACTS: The appellant was convicted at the Downpatrick Assizes of the murder by
strangulation of an 18-year-old girl. In a statement made to the police the appellant said that
when he was with the girl he had a "terrible feeling" and that "a sort of blackness" came over
him but, nevertheless, he was able to give some account of what had occurred. Three separate
and independent defences were raised at the trial, namely, (1) that the appellant was not guilty
because at the material time he was in a state of automatism by reason of suffering from an
attack of psychomotor epilepsy; (2) that he was guilty only of manslaughter since he was
incapable of forming an intent to murder on the ground that "his mental condition was so
impaired and confused and he was so deficient in reason that he was not capable of forming"
such intent; (3) that he was guilty but insane in consequence of suffering from a disease of the
mind within the M'Naughten Rules.
HELD: (1) that there were in law two types of automatism, namely, insane and non-insane
automatism. That a judge was only under a duty to leave the issue of automatism of either
type to the jury where the defence had laid a proper foundation for so doing by adducing
positive evidence in respect of it, which was a question of law for the judge to decide
(2) That, where, as here, the only cause alleged for the "unconscious" act in question was a
defect of reason from disease of the mind, namely, psychomotor epilepsy, and that cause was
rejected by the jury, there could be no room for the alternative defence of automatism, either
insane or non-insane, and that, accordingly, the trial judge was right in not leaving that
defence to the jury
(3) That since in the circumstances the appellant must be deemed to have been a sane and
responsible person at the time of the killing, there were no grounds for the view that he lacked
an intent to kill or cause grievous bodily harm to the deceased, and that, therefore, there was
no issue of manslaughter to be left to the jury
If after considering evidence of the issue of automatism a jury are left in real doubt whether (
or are not sure, so as to be satisfied beyond reasonable doubt, or that the act was involuntary
they should acquit.
PER LORD DENNING:
“The old notion that only the defence can raise a defence of insanity is now gone. The
prosecution are entitled to raise it and it is their duty to do so rather than to allow a dangerous
person to be at large. Any mental disorder which has manifested itself in violence and is prone
to recur is a disease of the mind. An act is not involuntary simply because the doer could not
control his impulse or temperament – the doer will be culpable as long as he knew what he
was doing”

REGINA v HENNESSY [1989] 1WLR 287, C A

FACTS: On Thursday 25 May 1987, two police constables, Barnes and Grace, were on duty in
St. Leonard’s on the Sussex coast, amongst other things looking for a Ford Granada car which
had been stolen. They found the car. It was unattended. They kept it under watch. As they
watched they saw the appellant get into the car, switch on the headlights and ignition, start the
car and drive off. The appellant at the wheel of the car correctly stopped the car at a set of traffic
lights which were showing red against him. Constable Grace then went over to the car as it was
stationary, removed the ignition keys from the ignition lock, but not before the appellant had
tried to drive the motor car away and escape from the attention of the policeman. The appellant
was put in the police car. On the way to the police station an informal conversation about motor
vehicles took place between the appellant and the police officers in particular about the
respective merits of the new Rover motor car and the Ford Sierra. Indeed the appellant appeared
to Police Constable Barnes not only to be fully in possession of his faculties but to be quite
cheerful and intelligent. Indeed he went so far as to say to the police officer that if he had only
got the car, which he was in the process of removing, on to the open road, he would have given
the policemen a real run for their money. However after having been at the police station for a
time, he was at a later stage escorted by Police Constable Barnes to hospital. He seemed to be
normal when he left the cell block at the police station, but when he arrived at the hospital he
appeared to be dazed and confused. The appellant complained to the sister in the casualty ward
that he had failed to take his insulin and indeed had had no insulin since the previous Monday
when he should have had regular self-injected doses. He was given insulin, with which he
injected himself, and the hospital discharged him and he was taken back to the police station.
The appellant gave evidence to the effect that he had been a diabetic for about 10 years. He
needed, in order to stabilise his metabolism, two insulin injections on a daily basis, morning and
afternoon. The amount required would depend on factors such as stress and eating habits. He was
on a strict carbohydrate diet. At the time of the offence he said he had been having marital and
employment problems. His wife had submitted a divorce petition some time shortly before, and
he was very upset. He had not been eating and he had not been taking his insulin. He
remembered very few details of the day. He could recall being handcuffed and taken to the
chargeroom at the police station. He remembered being given insulin at the hospital and injecting
himself and he remembers feeling better when he got back to the police station afterwards. He
said he did not recall taking the car. When cross-examined he agreed that he had understood
proceedings at the police station, and what had gone on there. Indeed he had given the name and
address of his solicitor. That was a considerable time before he had had his insulin at the
hospital.
The defence to these charges accordingly was that the appellant had failed to take his proper
twice a day dose of insulin for two or three days and at the time the events in question took place
he was in a state of automatism and did not know what he was doing. Therefore it is submitted
that the guilty mind, which is necessary to be proved by the prosecution, was not proved, and
accordingly that he was entitled to be acquitted.
HELD, per LORD LANE CJ

The answers to the questions were these first that: "every man is presumed to be sane, and to
possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved
to the satisfaction of the jury."
"to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the
committing of the act, the party accused was labouring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did
know it, that he did not know what he was doing was wrong."
The importance of the rules in the present context, namely the context of automatism, is this. If
the defendant did not know the nature and quality of his act because of something which did not
amount to defect of reason from disease of the mind, then he will probably be entitled to be
acquitted on the basis that the necessary criminal intent which the prosecution has to prove is not
proved. But if, on the other hand, his failure to realise the nature and quality of his act was due to
a defect of reason from disease of the mind, then in the eyes of the law he is suffering from
insanity, albeit M'Naghten insanity. It should perhaps be added, in order to complete the picture,
though it is not relevant to the present situation, that where a defendant's failure to appreciate
what he was doing was wrong, (that is, the second part of Rile 2 of the M'Naghten Rules) where
that failure is due to some reason other than a defect of reason from disease of the mind he will
generally have no valid defence at all...

CAUSATION
SECTION 13 OF ACT 29
SECT13 (1)
(1) A person who intentionally causes an involuntary agent to cause an event, shall be deemed to
have caused the event.
SHAVE v ROSNER [1954] 2 QB 113
FACTS: A motor van was left by the owner at a garage to have the brakes reshoed. Having
carried out the work the mechanics replaced the wheels but failed to tighten sufficiently the hub
nuts on one of the wheels and in consequence, after the garage proprietor had delivered the van
to the owner, and when the owner was driving it on a public road, that wheel came off and
injured a person on the pavement. The garage proprietor was charged with unlawfully causing
the van to be used on the road in a dangerous condition.

HELD, per LORD GODDARD C.J.

although the accident was due to the negligence of his servants, the garage proprietor was not the
cause of the van being used on the road in a dangerous condition, as the word "causes" when
found, as in regulation 101, in juxtaposition or contrast to "permits" involved some degree of
control and direction, and the garage proprietor, having delivered the van to the owner, had
ceased to have any control or dominion over it, and had done nothing which was the active cause
of the owner thereafter taking the van on the road. The garage proprietor, therefore, was not
criminally liable under the regulations.

When the word "cause" is used in juxtaposition to “permit". it means giving leave and licence to
somebody to do an act. It involves a person who has direct authority to order or direct another to
do a thing. His lordships referred to the case of HOUSTON v BUCHANAN |1940| 2 All ER 179,
where it was indicated inter alia:
To "cause " involves some express or positive mandate from the person causing " to another, or
some authority from the former to the latter.

WATKINS v O'SHAUGHNESSY [1939] 1 All ER 179

To cause" involves control, dominance or compulsion of one's movements by another
SECT13 (2) For the purposes of subsection (1). "involuntary agent" means an animal or any
other thing, and also a person who is exempted from liability to punishment for causing the
event, by reason of infancy, or insanity, or otherwise, under the provisions of this Act

R v MICHAEL (1840) 9 Car & P 356; 173 ER 867

FACTS: accused person, a single mother, attempting to murder her baby. She gave a bottle of
laudanum to another woman to be administered to the baby by the teaspoonful each night.
Suddenly, the bottle was left on top of a shelf. A five-year-old boy took to it and administered
half the bottle to the baby. The baby died and its mother was convicted of murder because the
little boy was considered as an involuntary agent.
SECT13 (3) Where an event is caused by acts of several persons acting either jointly or
independently, each of those persons who intentionally or negligently contributed to cause the
event has. for the purposes of this Act, and subject to subsections (4) and (5) and to the
provisions of this Part with respect to abetment, caused the event; but a matter of exemption,
justification, extenuation, or aggravation which exists in the case of anyone of those persons
shall have effect in favour of that one person , whether it exists or not in the case of any of the
other persons.

R v. CATO [1976] 1WLR 110

FACTS: The victim was a young man called Anthony Farmer. The events leading up to his death
occurred on July 25, 1974. On that day the appellant and Farmer had been in each other's
company for most of the day. The evidence suggests certain intervals when they were apart, but
by and large they seem to have been together all that day, and they spent much of the day with
the applicants as well. All four of them at that time were living at a house, 34, Russell Street, and
on July 25 their activities brought them to the Crown public house where they were until closing
time, and after closing time they went back to 34, Russell Street. There were others living in the
house. They went to bed, and the four (that is to say the appellant, the applicants and Farmer)
remained downstairs for a time. The moment came when Farmer produced bag of white powder
and some syringes and invited the others to have a "fix" with him; and so they did. The white
powder was put in its bag on the mantelpiece, the syringes were distributed amongst the four
who were to participate, and the procedure which they adopted (which may or may not be a
common one) was to pair off so that each could do the actual act of injection into the other half
of his pair. Following this procedure the applicants paired off together and so did the appellant
and Farmer. AH four had a number of injections following this procedure, but the time came
when the applicants went to bed, leaving the appellant and Farmer downstairs in the sitting room.
The appellant and Farmer continued to give each other these injections from time to time right
through the night. When the following morning came Farmer and the appellant were still
downstairs. They were apparently fast asleep, although everybody thought they were well
enough at 8 o'clock in the morning when they were seen. But as the next hour or two passed it
became apparent that they were both in difficulties. The appellant indeed was having difficulty in
breathing, and probably his life was saved only because somebody gave him some rudimentary
first aid. No one was able to do the same for Farmer, and by 11 o'clock Farmer was dead, and the
cause of death was that his respiratory system ceased to function consequent upon intoxication
from drugs.
HELD, PER LORD WIDGERY CJ:
When one looks at the evidence it is important to realise that no other cause of Farmer's death
was supplied. Dr. Robinson thought that there might have been another drug, and she said at one
stage it might have been cocaine, but there was never any cocaine found in the body. The only
cause of death actually supplied by the evidence was morphine. No natural disease was present
and no other drug was identified. Furthermore, the symptoms and the external appearance of the
body, and the nature of the final terminal cause, was consistent with poison by the administration
of heroin in the way which was described. Further, when the people who lived*in the house were
giving their evidence about the death of Farmer, it was as the judge pointed out, quite clear that
they thought there was no doubt about what the cause had been. It may be of course that young
people living in those circumstances know a great deal about the symptoms of heroin poisoning:
I know not. Of course, behind this whole question of the sufficiency of evidence of causation is
the fact that it was not necessary for the prosecution to prove that the heroin was the only cause.
As a matter of law, it was sufficient if the prosecution could establish that it was a cause,
provided it was a cause outside the de minimis range, and effectively bearing upon the
acceleration of the moment of the victim's death. When one has that in mind it is, we think, really
possible to say that if the jury had been directed to look for heroin as a cause, not de minimis but
a cause of substance, and they came back with a verdict of not guilty, the verdict could really be
described as a perverse one. The whole background of the evidence was the other way and there
certainly was ample evidence, given a proper direction, upon which a charge of manslaughter
could be supported.
"It is commonly said by judges and writers that, while the accused's act need not be the sole
cause of the death, it must be a substantial cause. This appears to mean only that a minute
contribution to the cause of death will not entail responsibility. It may therefore be misleading to
direct a jury that D is not liable unless his conduct was a substantial cause. Killing is merely an
acceleration of death and factors which produce a very trivial acceleration will be ignored."

R v JORDAN (1956) 40 Cr. App. 152

FACTS: Jordan, who worked for the United States Air Force, stabbed a man as the result of a
disturbance. The victim died in hospital eight days later. The post-mortem found that the victim
died of broncho-pneumonia following the abdominal injury sustained. The court in the first
instance found Jordan guilty. The defence team conceded their client stabbed Beaumont; they
then uncovered medical evidence not available at trial and appealed on the grounds that the
medical treatment the victim had received was so negligent as to break the appellant's liability.
On appeal, it was shown that at the time of the victim’s death the original stab wound had
substantially healed, and the victim had in fact died from an allergic reaction to antibiotics given
to him and by the administration of too much liquid whilst in hospital. The medical professionals
should have noticed the defendant’s allergic reaction. The defendant argued that the medical
negligence broke the chain of causation between his actions and the victim’s death
HELD: Ordinarily, the circumstances and medical treatment following serious bodily harm are
not relevant in establishing a defendant's liability for his acts. Where the original wound or injury
caused by the defendant is still an 'operating cause' of death, negligent medical treatment will not
constitute a novus actus interveniens.
HALLETT J summed up the fresh medical evidence as such:
The stab wound had penetrated the intestine in two places, but it was mainly healed at the time of
death. With a view to preventing infection it was thought right to administer an antibiotic,
terramycin. It was agreed by the two additional witnesses that, that was the proper course to take,
and a proper dose was administered. Some people, however, are intolerant to terramycin, and
Beaumont was one of those people. After the initial doses he developed diarrhoea, which was
only properly attributable, in the opinion of those doctors, to the fact that the patient was
intolerant to terramycin. Thereupon the administration of terramycin was stopped, but
unfortunately the very next day the resumption of such administration was ordered by another
doctor and it was recommenced the following day. The two doctors both take the same view
about it. Dr. Simpson said that to introduce a poisonous substance after the intolerance of the
patient was shown was palpably wrong. Mr. Blackburn agreed. On this basis, the conviction was
quashed.

REPUBLIC v YEBOAH [1974] 1 GLR 268

FACTS: The accused was seen one evening leading a group of people who were chasing an
unknown man and shouting, “Thief, thief.” The following morning a fatally injured man was
discovered a short distance from the direction of the chase. He never regained consciousness and
his identity was unknown. The accused was charged with his murder, and at the trial, following a
submission of no case,
HELD, PER OSEI-HWERE J:
Even if it could be conceded that the man after whom the accused led the crowd in hot pursuit,
was the same man who was subsequently found unconscious, there was still no evidence
connecting the accused with his death. If a crowd of people chased after a man in the belief that
he was a thief, and he was battered to death, but there was no evidence which person or persons
inflicted the blows or that they were acting in concert, a charge of murder could not hold against
any of them.

SECT13 (4) A person shall not be convicted of having intentionally or negligently caused an
event if, irrespective of the act of that person and the acts of any of the persons acting jointly
with that person„ the event would not have happened but for the existence of a state of facts or
the intervention of any other event or of any other person, the probability of the existence or
intervention of which other event or person the accused person did not take into consideration,
and did not have a reason to take it into consideration.
SECT13 (5) Subsection (4) does not apply where a person is charged with having caused an
event by an omission to discharge a duty for averting the event.
R v WILLOUGHBY 2005 CRIM. L.R. 389
FACTS: Willoughby was the owner of a derelict pub which burnt down in a fire caused by
petrol. The deceased was caught in the fire and died whilst the defendant sustained injury. There
was evidence to the effect that the defendant had engaged the deceased to assist him to burn
down the place because he could not pay the mortgage. The defendant was charged with arson
and manslaughter either due to gross negligence or by an unlawful and dangerous act. The judge
established grounds for duty of care, stating that the defendant owed the deceased a duly of care
to protect his health whilst on his premises. The jury returned a guilty verdict and the defendant
appealed against only the charge of manslaughter.
HELD: that the manslaughter conviction was proper because it arose out of the conviction for
arson which recklessly endangered life and led ultimately to the death.

SARIMBE alias OLALA v THE REPUBLIC [1984-86] GLR 117

FACTS; The appellant fought his seven-month old pregnant wife. She died the next day. The
pathologist who performed the autopsy attributed her death to shock and intracranial
haemorrhage. He was prosecuted for murder on the grounds that he intentionally caused the
death by unlawful harm. The appellant denied the charge but admitted having slapped his wife.
He was convicted and he appealed against that. In the light of the medical evidence, the Court of
Appeal found that the offence of murder was not established. The prosecution then invited the
court to substitute a verdict for manslaughter.

HELD, PER APALOO CJ:

to sustain a charge of manslaughter under section 51 of the Criminal Code, 1960 (Act 29) , the
prosecution must show that the harm which the appellant undoubtedly caused to the deceased
resulted in her death. If the evidence was susceptible to her death being caused by some other
cause, then clearly the prosecution would have failed to prove that the appellant inflicted the
harm that resulted in the deceased’s death. On the evidence, although severe beatings could have
hastened the death of a seven-month old pregnant woman, the injuries inflicted on the deceased
by the appellant were trivial. It was plain therefore that the prosecution had failed to show that
the deceased’s death was caused by harm inflicted on her by the appellant. He was therefore not
guilty of manslaughter.
Since on the evidence the appellant admitted slapping the deceased, he was clearly guilty of
assault within the meaning of section 84 of Act 29. In exercise of the court’s power under section
154 of the Criminal Procedure Code, 1960 (Act 30), a verdict for assault would be substituted for
the one for murder.
IMPRESS (WORCESTOR) LTD v REES [1971] 2 All ER357
PER COOKE J: X does not "cause " an event where there is an intervention by an unauthorized
person not connected with X's business, and whose intervention is of so powerful a nature that
X’s conduct is not a cause at all but merely part of the surrounding circumstances.

SECT13 (6) A person beyond the jurisdiction of the Courts who causes a voluntary agent to
cause an event within the jurisdiction, shall be deemed to have caused the event within the
jurisdiction.
SECT13 (7) Subject to this section, and to the special provisions of a particular section of this
Act., it is a question of fact whether an event is fairly and reasonably to be ascribed to a person's
act as having been caused by that act.

R v BOREMAN AND ORS |2000| ALL E.R. 307. 2000 CRIM. L.R. 409 CA.
FACTS: The appellants were convicted of murder after a retrial. They appealed against their
convictions. The question facing the jury was the cause of death. The evidence before the court
showed that the appellants and the deceased were involved in a fight on the night of the incident.
Later that night there was a fire outbreak in the deceased's apartment and the deceased sustained
serious burns, and died. Prosecution argued that the appellants intended to kill or seriously
injure the deceased before the fire outbreak and that the injuries sustained by the deceased as a
result of the fight contributed largely to his death. Defence argued that the injuries sustained by
the deceased during the fight were not as serious as to cause death and that the fire was the sole
cause of the death.
HELD: In the circumstance where a killing can occur through two possible means occurring at
two different times, then the jury must be unanimous on which act led to the death. 'The
convictions were held to be proper therefore appeals were dismissed.

R v WATERS (1834) 172 ER 1262

FACTS: Accused -who was aboard a ship, and the deceased in a boat alongside it were involved
in an argument. Accused pushed the boat of the deceased away from the ship. The deceased
stretched to hold the ship to prevent his boat from drifting away but lost his balance, fell
overboard and was drowned.
Held, PER PARK J: the falling overboard of the deceased was not caused by accused, and
therefore he was not guilty of manslaughter.
DAGARTI v THE REPUBLIC [1992]-93 GBR 1002
Appellant deceased were both convict prisoners occupying one cell at Sunyani Central Prisons.
Appellant was in charge of discipline within the cell as 'Superior". As punishment for stealing
corn flour, appellant imposed a punishment on deceased, to fetch water for the inmates of the cell
for three days. Deceased fetched the water for two days, and on the third day refused to do so.
Appellant attacked the deceased and stamped on his chest four limes. The cell doors having been
locked for the night, the deceased had to mat until the next morning before being taken to the
infirmary, where he was given only pain killing tables. Five days later, he was admitted into the
infirmary by the Prison doctor where he remained for five days. However, there was no evidence
of the type of treatment he was given, or whether his condition was correctly diagnosed. His
condition worsened and he was taken to the Sunyani Central hospital where he did that same day.
Post mortem report showed that there was bleeding in his chest cavity which had taken place not
more than seven days previously. However the incontrovertible evidence was that the attack took
place ten days before the death. Based upon the absence of evidence from the Prison doctor as to
the nature of injuries inflicted by the appellant the court could not concluded definitively whether
it was the injuries that caused the death, or complications from the injuries arising from both the
delay in giving medial attention and the obviously inadequate and incompetent medical care. The
court concluded that in the absence of vital evidence specific intent to cause death had not been
established therefore a verdict of manslaughter was substituted for murder.

SECT13 (8) A person shall not by reason of anything in this section, be relieved
a) from a liability in respect of an attempt to cause an event: or
b) from a liability in respect of a negligent conduct, if the negligent conduct is punishable
under, this Act irrespective of whether it actually causes an event'.

R v THABO MELI [1954] 1 WLR 228

FACTS: appellants, in accordance with a preconceived plan, took a man to a hut, gave him beer
so that he was partially intoxicated, and then struck him over the head. They, believing him to be
dead, took his body and rolled it over a cliff, dressing the scene to make it look like an accident.
In fact, the man was not then dead, it being established from medical evidence that the final
cause of his death was exposure when he was left unconscious at the foot of the cliff. The
appellants contended that the two acts were separate acts, and that, while the first act was
accompanied by mens rea, it was not the cause of death. But that the second act, while it was the
cause of death, was not accompanied by mens rea, and that, therefore, they were not guilty of
murder. The court rejected this argument.
HELD, PER Lord Reid: that:
 It appears to their Lordships impossible to divide up what was really one series of acts in this
way. There is no doubt that the accused set out to do all these acts in order to achieve their plan,
and as part of their plan; and it is much too refined a ground of judgment to say that, because
they were under a misapprehension at one stage and thought that their guilty purpose had been
achieved before, in fact, it was achieved, therefore they are to escape liability

R v SMITH [1955] 2 QB 35
FACTS: the appellant, who was a soldier, stabbed another soldier in a barrack-room fight. There
followed a series of unfortunate occurrences. A fellow-member of his company tried to carry
him to the sick bay but he tripped over a wire and dropped him. He picked him up again, went a
little farther and fell with him again. He left the victim on the ground and went for help. At the
sick bay, the victim was given medical treatment which turned out to be inappropriate and he
died. The appellant was convicted for murder.
HOLDING: PER LORD PARKER J:
It seems to the court that if at the time of death the original wound is still an operating cause and
a substantial cause, then the death can properly be said to be the result of the wound, albeit that
some other cause of death is also operating. Only if it can be said that the original wound is
merely the setting in which another cause operates can it be said that the death does not result
from the wound. Putting it another way, only if the second cause is so overwhelming as to make
the original wound merely part of the history can it be said that death does not flow from the
wound.

SECTION 64 OF ACT 29 ON CAUSING DEATH

The general provisions of Part One with respect to causing an event arc, in their application with
respect to the causing of death by harm, subject to the following explanations and modifications,
namely,
(a) the death of a person is caused by harm if, by reason of the harm, death has happened
otherwise or sooner, by however short a time, than it would probably have happened but for the
harm;
(b) it is immaterial that the harm would not have caused the person's death but for the infancy,
old age, disease, intoxication, or any other state of body or mind of that person, at the lime when
the harm was caused;
(c) it is immaterial that the harm would not have caused the person's death but for the refusal or
neglect of that person to submit to or seek proper medical or surgical treatment, or but for the
negligent or improper conduct or manner of living of that person, or of treating the harm, unless
the person so acting was guilty of a wanton or reckless disregard of that person's own health or
condition;
(d) death is caused by harm if the death is caused by the medical or surgical treatment of the
harm, unless the treatment is grossly negligent or unless the death could not have been foreseen
as a likely consequence of the treatment; and
(e) death is not caused by harm unless the death takes place within a year and a day of the harm
being caused.

R v DONOVAN [1934] 2 KB 498

FACTS: The defendant was convicted of indecent assault and common assault after caning a
17-year-old female complainant for the purposes of sexual gratification. It was established at trial
that the appellant, Mr Donovan, had ‘induced’ the victim to accompany him to his garage,
wherein he had proceeded to beat her with a cane in ‘circumstances of indecency’. Mr Donovan
argued that the victim had agreed to meet him in full understanding of his intentions, and had
given every indication that she was consenting throughout. The complainant suffered actual
bodily harm, though the defendant was not charged with an offence under s.47. His defence was
consent. The judge had directed the jury that the issue was consent or no consent, without giving
any guidance on the burden of proof. An appeal was brought on the grounds that the jury had not
been given adequate direction to decide the issue
HOLDING: PER SWIFT J
‘Always supposing, therefore, that the blows which he struck were likely or intended to do
bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given
of facts which would bring the case within any of the exceptions to the general rule. In our view,
on the evidence given at the trial, the jury should have been directed that, if they were satisfied
that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix,
they ought to convict him, and that it was only if they were not so satisfied, that it became
necessary to consider the further question whether the prosecution had negatived consent. For
this purpose, we think that ‘bodily harm’ has its ordinary meaning and includes any hurt or
injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury
need not be permanent, but must, no doubt, be more than merely transient and trifling.’

R v INSTAN (1893) 1 QB 450

FACTS: The victim had been taken ill with gangrene in her leg, leaving her immobile and unable
to feed herself during the last 12 days of her life. The defendant was the victim’s niece and lived
with the victim. Instan did not provide her aunt with any food or sustenance and did not ring for
any medical help for the victim as she deteriorated, despite continuing to live in the property and
consume the victim’s food. The victim then died. The defendant was charged and found guilty of
manslaughter. She appealed this conviction. Appeal dismissed and the conviction was affirmed.
HELD: The court held that the defendant owed a duty of care towards the victim because the
defendant took the victim’s money to purchase food items. Instan should not have used the
money purely for her own food purchases, but also for the benefit of her aunt. Her failure to do
so constituted a failure to act which was capable of amounting to causing the aunt’s death. The
intentional neglect of the aunt was consequently a crime despite the lack of statute or precedent
PER LORD COLERIDGE “We are all of opinion that this conviction must be affirmed. It would
not be correct to say that every moral obligation involves a legal duty; but every legal duty is
founded on a moral obligation. A legal common law duty is nothing else than the enforcing by
law of that which is a moral obligation without legal enforcement. There can be no question in
this case that it was the clear duty of the prisoner to impart to the deceased so much as was
necessary to sustain life of the food which she from time to time took in, and which was paid for
by the deceased's own money for the purpose of the maintenance of herself and the prisoner; it
was only through the instrumentality of the prisoner that the deceased could get the food. There
was, therefore, a common law duty imposed upon the prisoner which she did not discharge. Nor
can there be any question that the failure of the prisoner to discharge her legal duty at least
accelerated the death of the deceased, if it did not actually cause it”
PER LORD COLERIDGE “The prisoner was under a moral obligation to the deceased from
which arose a legal duty towards her; that legal duty the prisoner has willfully and deliberately
left unperformed, with the consequence that there has been an acceleration of the death of the
deceased owing to the non-performance of that legal duty. it is unnecessary to say more than that
upon the evidence this conviction was most properly arrived at”

R v HOWARD [1965] 3 ALL ER 684

FACTS: The victim was a 6-year-old girl who was sexually assaulted by the defendant in her
home. On the night in question, the defendant entered the victim’s home and assaulted her
leaving semen stains, pubic, other hairs and a button at the scene. Several nights later, the
victim’s parents heard somebody attempting to climb into their house through an upstairs
window. They gave chase and the defendant was arrested. The defendant denied that he had
previously been in the home. However, all of the samples previously left matched him and he
was found guilty of attempted rape contrary to Sexual Offences Act 1956, s 1 and burglary.
HOLDING: In order to bring a charge of rape, or as here, attempted rape, it was necessary for the
prosecution to show that not only had sexual intercourse occurred in terms of penetration, but
also that the victim did not consent to that penetration. Where the child was as young as the one
in this judgment there was no issue as to whether she could consent. However, where the girl was
significantly older, but still under the age of 16, the jury must be directed that the girl could not
have given consent if she physically resisted or, if she did not, her understanding and knowledge
were such that she could not decide whether to resist or consent.

TWUM v THE REPUBLIC [1967] GLR 724

FACTS: On or about 3 November 1964, at about 5 p.m. the deceased, a police constable, who
was off duty, was seen drinking with friends at a palm-wine bar at Korle Wokon in Accra. The
appellant was also seen standing outside the bar at about the same time, but he later went inside
and joined the deceased and his friends in the drinking. One of the deceased's friends called Kofi
Minta invited the deceased to another bar called Lumumba Cafe to continue with their drinking.
Just at this time the appellant also stopped drinking and followed them. He demanded from
Minta a debt of 7s which he later said was 14s. But Minta asked the appellant to exercise
patience, for he intended on his return with the deceased to the palm-wine bar to settle the debt.
When the deceased and Minta had almost finished their drink at the Lumumba Cafe, the
appellant entered. Minta offered him a drink, but he declined to accept it. When the three of them
got out into the street the appellant renewed the demand for his money from Minta. Minta
refused to pay the appellant the alleged debt of 14s., and at this juncture the appellant held
Minta's shirt by the shoulder. The subsequent course of events was narrated by Minta in his
evidence as follows: "Badu told the accused that what he was doing was not good. He still held
my shirt; Badu passed his hand behind me and held the accused's hands to remove his hand from
me. The accused drew his hand away. We took one step then the accused crossed me in front and
hit Badu on the chest with his left hand and hit him in the face [according to demonstration
between the face and the chest]. He fell down and would not get up. Many people came there. He
fell flat."
The defence did not dispute the evidence for the prosecution as to the demand for the debt at the
Lumumba Cafe, but as to the events which ultimately resulted in the death of the deceased
HELD, PER AZU CRABBE JA:
The evidence in this case is that the deceased who was 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 carried in an unconscious state to the police station and was admitted to the
Military Hospital, where he died the next day. In these circumstances we cannot see what other
reasonable possible causes of death there could be other than the proximate cause of death was
the act of the appellant.

R v BLAUE [1975] 3 All ER 446

FACTS: The appellant went to the house of a girl and asked her for sex. When she refused his
request, he attacked her with a knife and stabbed her. The stab pierced her lung and she was
rushed to the hospital by neighbours. By the time she reached the hospital, she had lost a lot of
blood and the doctors were of the opinion that only a blood transfusion would save her. She
refused to have the transfusion because as a Jehovah's Witness, it was, against the tenets of her
religion to undergo blood transfusion. She died a few hours later. The appellant was convicted of
her murder. He appealed.
It is worth to note that the girl was a Jehovah witness and was told to have blood transmission.
To have one, she said, would be contrary to her religious beliefs as a Jehovah's Witness. She was
told that if she did not have a blood transfusion she would die. She said that she did not care if
she did die. She was asked to acknowledge in writing that she had refused to have a blood
transfusion under any circumstances. She did so. The Crown admitted at the trial that had she
had a blood transfusion when advised to have one she would not have died. She did so at 12.45
am the next day. The evidence called by the Crown proved that at all relevant times she was
conscious and decided as she did deliberately, and knowing what the consequences of her
decision would be. In his final speech to the jury, counsel for the Crown accepted that the girl's
refusal to have a blood transfusion was a cause of her death. The prosecution did not challenge
the defence evidence that the appellant was suffering from diminished responsibility.
Held, PER LAWSONL J:
the accused was liable for her death because he must take his victim as he found her. Her
religious beliefs which dictated her slate of mind were all part of her and could not be described
as unreasonable. Consequently her decision not to accept treatment did not break the chain of
causation. A man who did a wrongful act was deemed morally responsible for the natural and
probable consequences of that act. Counsel for the appellant asked us to remember that since Sir
Matthew Hale's day the rigour of the law relating to homicide has been eased in favour of the
accused. It has been - but this has come about through the development of the concept of intent,
not by reason of a different view of causation. 'It seems to the court that if, at the time of death
the original wound is still an operating cause and a substantial cause, then the death can properly
be said to be the result of the wound, albeit that some other cause of death is also operating. Only
if it can be said that the original wounding is merely the setting in which another cause operates
can it be said that the death does not result from the wound. Putting it another way, only if the
second cause is so overwhelming as to make the original wound merely part of the history can it
be said that the death does not flow from the wound.' The physical cause of death in this case
was the bleeding into the pleural cavity arising from the penetration of the lung. This had not
been brought about by any decision made by the deceased girl but by the stab wound.

R v MALCHAREK [1981] 1WLR690

FACTS: Two separate appeals were heard together. In Malcherek the defendant had stabbed his
wife. In Steel the defendant was accused of sexually assaulting and beating a woman over the
head with a stone leaving her brain dead. In both cases the victims had been taken to hospital and
placed on life support machines. The doctors in the respective cases later switched off the life
support machines as both victims were not showing any activity in their brain stem. The
defendants sought to argue that the doctors' actions constituted a novus actus interveniens which
broke the chain of causation.
HELD, PER LORD LANE CJ: discontinuance of treatment does not break the chain of causation
between the initial injury and death where the doctor comes to the conclusion, bona fide and
conscientiously, that the victim is for all practical purposes dead and that vital functions as exist
are maintained solely by mechanical means and therefore discontinues treatment.
“Nothing which any of the two or three medical men whose statements are before us could say
would alter the fact that in each case the assailant’s actions continued to be an operating cause of
the death. Nothing the doctors could say would provide any ground for a jury coming to the
conclusion that the assailant in either case might not have caused the death. The furthest to which
their proposed evidence goes, as already stated, is to suggest, first, that the criteria or the
confirmatory tests are not sufficiently stringent and, second, that in the present case they were in
certain respects inadequately fulfilled or carried out. It is no part of this court’s function in the
present circumstances to pronounce on this matter, nor was it a function of either of the juries at
these trials. Where a medical practitioner adopting methods which are generally accepted comes
bona fide and conscientiously to the conclusion that the patient is for practical purposes dead,
and that such vital functions as exist (for example, circulation) are being maintained solely by
mechanical means, and therefore discontinues treatment, that does not prevent the person who
inflicted the initial injury from being responsible for the victim’s death. Putting it in another way,
the discontinuance of treatment in those circumstances does not break the chain of causation
between the initial injury and the death.”

R v BASARE [1959] GTR321, CA

FACTS: Appellant had shot the owner of a bag of cocoa he had stolen. He contended on appeal
that the medical treatment was poor and thus he was not responsible for the death.
HELD, OLLENNU J: that death resulting from treatment of a wound unlawfully inflicted does
not, however inadequate such treatment may have been, exonerate the person who inflicted the
wound from responsibility in law for the consequences of his act, unless the treatment itself
amounts to murder or manslaughter.

R v HOLLAND
FACTS: the defendant, in the course of a violent assault, had injured one of his victim's fingers.
A surgeon had advised amputation because of danger to life through complications developing.
The advice was rejected. A fortnight later the victim died of lockjaw, the real question is, said
Maule J, 'whether in the end the wound inflicted by the prisoner was the cause of death?
HELD, PER Maule J: He who inflicted an injury which resulted in death could not excuse
himself by pleading that his victim could have avoided death by taking greater care of himself:
see Hale. The common law in Sir Matthew Hale's time probably was in line with contemporary
concepts of ethics.

R v DYSON [1908] 2 KB 454

FACTS: The accused had inflicted wounds on a man which caused his death more than a year
and a day afterwards.
HELD: in the absence of recent injuries the death could not have been accelerated by the act of
the accused.
PER Lord Alverstone, CJ: “unless the death occurred within a year and a day of the time when
the injuries causing it were inflicted, the person charged could not be convicted for causing the
death of the victim”

SECTION 81 OF ACT 29, Exceptions to causing an event

The general provisions of Part One with respect to causing an event are, in their application to
the matters of this Chapter, subject to the following explanations and modifications, namely,
(b) the 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 the grief, terror, or emotion has been
caused by that other person whether with intent to cause harm or otherwise;
(c) the harm which a person suffers by execution of a sentence of a Court in consequences of a
prosecution instituted, prosecuted, or procured, or of evidence given or procured to be given, by
another person, whether in good faith or not, is caused by that other person; and
(d) except as in this section expressly provided, a person is not excused from liability to
punishment for causing harm to another person, on the grounds that the other person personally,
by trespass, negligence, act, or omission, contributed to causing the harm.

R v NWAOKE (1939)5 WACA 120

FACTS: Appellant pointed a juju at his ex-wife and threatened that the juju would kit I her
unless she returned the 'head money' he had paid to marry her. The deceased was so terrified by
this threat that she hanged herself a few days later. He was convicted of manslaughter and he
appealed.
HELD: although the woman's act had been induced by her terror, the death was not the act of the
appellant. Conviction quashed.
SECTION 4
INCHOATE OFFENCES
ATTEMPT TO COMMIT CRIMINAL OFFENCE
SECTION 18 OF CRIMINAL OFFENCES ACT, ACT 29
SECTION 18 (1) 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.

R v WHITE [1910] 2 KB 124

FACTS: The defendant put poison into the evening drink of the victim, his mother, with the
intention of killing her. The victim drank a few sips of the drink and then fell asleep. She did not
wake up; however, the medical evidence was that she had died of a heart attack rather than as a
result of the poison. The defendant also gave evidence that he had not intended to kill her by a
single dose but had planned to deliver multiple doses over a longer period of time. The defendant
was convicted of attempted murder. On appeal, it was asked whether the defendant’s actions
made him guilty of murder, or whether the heart attack successfully broke the chain of causation.
HELD: The court established the ‘but for’ test of causation, according to which the defendant
could not be convicted unless it could be shown that ‘but for’ his actions the victim would not
have died. On the facts of this case the test was not met, therefore the defendant could not be
convicted of murder. On the issue of attempt, the court held that it was sufficient that the
attempted murder had been begun, notwithstanding that the defendant had not completed his
plan. The conviction for attempted murder was therefore upheld.

HAUGHTON v SMITH (1974) 58 Cr App Rep 198

An attempt to commit a criminal offence is itself a criminal offence at common law, and by
section 6(4) of the Criminal Law Act 1967, it remains an offence as an attempt notwithstanding
that the accused person is shown to have been guilty of the completed offence. But what is an
attempt? The earliest attempt at definition in comparatively modern times is in Eagleton (18551
Dears C.C. 515,538, per Parke B when he said:
"The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do
not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading
towards the commission of the offence are not to be considered as. attempts to commit it, but acts
immediately connected with it are…

DAVEY v. LEE AND OTHERS (1967) 51 Cr. App. R. 303,305; [1968] 1 Q.B. 366,370
Judgment of Lord Parker CJ:
"What amounts to an attempt has been described variously in the authorities, and for my part I
prefer to adopt the definition given in Stephen's Digest of the Criminal Law, 5th ed. (1894) art
50, where it says that: An attempt to commit a crime is an act done with intent to commit that
crime, and forming part of a series of acts which would constitute its actual commission if it
were not interrupted.' As a general statement that seems to be right, although it does not help to
define the point of time at which the series of acts begins. That, as Stephen said, depends upon
the facts of each case. A helpful definition is given in paragraph 4104 in the (then) (36th) current
edition of Archbold's Criminal Pleading, Evidence and Practice, where it is stated in this form: it
is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does
an act which is a step towards the commission of a specific crime, which is immediately and not
merely remotely connected with the commission of it, and the doing of which cannot reasonably
be regarded as having any other purpose than the commission of the specific crime.'"
In addition to the intention, or mens rea, there must be an oven act of such a kind that it is
intended to form and does form part of a series of acts which would constitute the actual
commission of the offence if it were not interrupted. The act relied on as constituting the attempt
must not be an act merely preparatory to commit the completed offence, but must bear a
relationship to the completion of the offence referred to in Eagleton (supra) as being "proximate"
to the completion of the offence and in Davey and Others v Lee (supra) as being "immediately
and not merely remotely connected" with the completed offence.

R v KHAN
FACTS: Four men, Mohammed Iqbal Khan, Mahesh Dhokia, Jaswinder Singh Banga and
Navaid Faiz (A) were charged with the attempted rape of a 16-year-old girl, B. A had
unsuccessfully tried to engage in sexual intercourse with B. The trial judge directed the jury that
the issues relevant to the mens rea for attempted rape were the same as for a charge of rape. It
was therefore directed that the offences of both rape and attempted rape require 1) an intention to
have sexual intercourse, and 2) knowledge of, or recklessness as to, the absence of consent. The
men were convicted and appealed.
HELD: The mens rea for rape and attempted rape can be analysed in the same way. Both the
offence of rape and the attempt require identical mens rea of 1) an intention to have sexual
intercourse and 2) knowledge of, or recklessness as to, the absence of consent. Recklessness was
relevant in both the offence of rape and attempted rape not to the physical act of the sexual
intercourse (the actus reus) but to the offender’s state of mind in engaging in sexual intercourse
(the mens rea). The appeals were dismissed and the convictions upheld.

R v MCSHANE [1900] 2 QB 597

FACTS: The accused took part in a special race in which he was not qualified to participate,
under a false name, and won. Before he could claim the prize, he was found out. He was
convicted of attempting to obtain by false pretenses
HELD, PER MATHEW J: The conviction in this case must be upheld. The questions to be
decided in this present case were pure questions of fact, namely, whether the intention of the
defendant, when he entered for the races, was to obtain the prizes, and whether he made the
representations with that intention. It appears from the case that he pretended to be a man who
had never won a foot-race, and he was handicapped on the faith of that statement, as is shewn by
the evidence given by the handicapper; but it also appears from the case that his statement was
false, for he had won races. Then it was suggested that he competed in the name of Sims, as it is
put in the case, "for a lark"; but that question was for the jury, and they have negatived the
suggestion. It was also contended that his coming in first in the races was owing to his own good
running; but it was also owing, in part at least, to the false pretenses, for by means of the false
pretenses he obtained a longer start than he would have had if his true name and performances
had been known. It is also said that some other act had to be done in order to make the offence
complete, and that he could not rightly be convicted because it was not shewn that he had applied
for the prizes, and that the criminal intention was exhausted. The argument is exceedingly subtle,
but unsound. In fact, he was found out before he had the opportunity of applying for the prizes,
as no doubt he otherwise would have done. The pretenses which the prisoner made were not too
remote, and the conviction was good...

REPUBLIC v DARKO [19711] 2 GLR 227

FACTS: on the night of 27 March 1970, the accused with a loaded double-barrel gun, exhibit A,
went to the house of the first prosecution witness who was conversing with the second
prosecution witness in a room and shot at the first prosecution witness, but the gun did not fire.
As a result of a struggle which later followed the unsuccessful attempt, both the first and second
prosecution witnesses overpowered the accused and seized exhibit A from him. Both the first
and second prosecution witnesses testified further that: when the accused pointed exhibit A at the
first prosecution witness, he asked the second prosecution witness to clear the way to enable him
kill the first prosecution witness; the accused actually pulled the trigger and they both heard the
noise made by the trigger when it was pulled.
HELD, PER EDWARD WIREDU J: Intention is a question of fact to be determined by the jury
on the whole of the evidence adduced at the trial... In this case there can be no doubt that the
attack by the appellant was deliberate and the seriousness of the injuries he inflicted on the
complainant was itself eloquent of an intention to kill... attempted murder: Murder is
defined in section 47 of Act 29 as follows: "Whoever intentionally causes the death of another
person by any unlawful harm is guilty of murder." So attempted murder can be defined by
putting the word "attempt" just immediately after the word "whoever." It should be remembered
that in the instant case the attempt will be made by the use of exhibit A. Section 76 of Act 29
defines unlawful harm as follows: "Harm is unlawful which is intentionally or negligently caused
without any of the justifications mentioned in Chapter 1 of this Part." When the definition of
unlawful harm is applied for analysis with the two offences contemplated under sections 46 and
70 of Act 29, we have the following: Attempted murder is an attempt to cause intentional death
by harm intentionally inflicted. Attempted causing harm is an attempt to cause intentional harm
by the intentional use of an offensive weapon. Therefore, most of all the essential ingredients of
attempting to cause harm form part of the essential ingredients of attempted murder, but the
characteristic difference between the two lies in the nature of the "intent."
In attempted murder not only must the attempt aim at causing unlawful harm but that the harm
must aim at causing death, whereas in the case of attempting to cause harm the attempt must aim
at causing harm and no more...

BEATTY v GILLBANKS [1882] 9 QBD 308

FACTS: It was the practice of members of the Salvation Army to march through
Weston-super-Mare headed by a band to collect a crowd together and take them to the Salvation
Army Hall for a meeting. It was also the practice, as in a number of other places for them to be
attacked in the course of their parades and in this instance by the Skeleton army. After a
particularly bad incident, the local magistrates purposed to ban further parades. The Salvation
Army were warned not to march as they would be attacked by the Skeleton Army, as had
occurred in the past. When they went ahead to assemble, their procession was stopped by the
police and Beatty was told he would be arrested if he did not disperse. He refused and was
arrested but told the others to carry on. They too were arrested. All submitted quietly to the
arrest. The Salvation army were charged with and convicted of unlawful assembly and required
to find sureties to keep the public peace. They appealed the conviction. On appeal the question
for the court to determine inter alia was whether the Salvation Army could be prevented from
marching despite the potential for rioting
HELD, PER FIELD J:
Persons who are lawfully and peaceably assembled could not be convicted of the offence that
they did ‘unlawfully and tumultuously assemble with diverse other persons to the disturbance of
the public peace, and against the peace of our sovereign Lady the Queen. They did nothing
unlawful and the evidence showed that the disturbances were caused by other people
antagonistic to the appellants. What has happened here is that an unlawful organisation has
assumed to itself the right to prevent the appellants and others from lawfully assembling
together, and the finding of the justices amounts to this, that a man may be convicted for doing a
lawful act if he knows that his doing it may cause another to do an unlawful act.
Contradistinctively, if this disturbance of the peace was the natural consequence of acts of the
appellants, they would be liable, and the justices would have been right in binding them over.’

R v SHIVPURI [1987] AC 1
FACTS: The appellant attempted to import illegal drugs. The substance he actually imported
turned out to be a harmless one.
HELD, PER LORD BRIDGE OF HARWICH: "My Lords, it has been strenuously and ably
argued for respondent that these provisions involve that a defendant is liable to conviction for an
attempt even where his actions are innocent but he erroneously believes facts which, if true,
would make those actions criminal, and further, that he is liable to such conviction whether or
not in the event his intended course of action is completed."
any attempt to commit an offence which involves "an act which is more than merely preparatory
to the commission of the offence" but for any reason fails, so that in the event no offence is
committed, must ex hypothesi, from the point of view of the criminal law, be "objectively
innocent"... A puts his hand into B's pocket. Whether or not there is anything in the pocket
capable of being stolen, if A intends to steal, his act is a criminal attempt; if he does not so
intend, his act is innocent. A plunges a knife into a bolster in a bed. To avoid the complication of
an offence of criminal damage, assume it to be A's bolster. If A believes the bolster to be his
enemy B and intends to kill him, his act is an attempt to murder B; if he knows the bolster is only
a bolster, his act is innocent. These considerations lead me to the conclusion that the distinction
sought to be drawn in Anderton v. Ryan between innocent and guilty acts considered
"objectively" and independently of the state of mind of the actor cannot be sensibly maintained.

SECT18 (2) A person who attempts to commit a criminal offence commits a criminal offence
and except as otherwise expressly provided in this Act, is liable to be convicted and punished as
if the criminal offence has been completed.
SECT18 (3) 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 the criminal offence and is liable to be convicted and punished under either provision or
under this section.

DUA v THE STATE [1963] 2 GLR 385, SC

FACTS: the appellant and his wife lived in the same house at Berekum. On New Year's eve, that
is, the 31st December, 1962, and just before midnight they had a quarrel about a sum of G20
which the appellant had given to his wife to buy certain clothing materials in Kumasi for her
customers. The appellant appeared drunk and insisted on a repayment of this amount to him by
the wife. During the altercation that followed the appellant was alleged to have said to the wife:
"Whether I get the money or not, today I will kill you." Just as the clock struck midnight and the
New Year was being ushered in the appellant attacked his wife with a knife and inflicted on her
several injuries. She was rushed to the Holy Family Hospital where she was treated by the
medical officer in charge of the hospital; and after fifteen days hospitalization was discharged. At
the trial the appellant said repeatedly that it was not his intention to kill his wife, and the only
reason he gave for this murderous attack on her was that she was the first to stab him on the wrist
(be it noted, only once).
HELD, PER CRABBE JSC: The principal ingredient of the offence of attempted murder is the
intent to kill. Thus in R. v. Whybrow (1951)35Cr. App.R. 141 at p.148, CCA. Lord Goddard C.J.
in delivering the judgment of the court said that: the jury should have been told that the essence
of the offence was the intent to murder as it was presented by the prosecution and as it had been
dealt with throughout the case.
the necessary intent to kill had been proved as well as the fact that she nearly died from the
attack. Therefore, the offence had been made out, and it was proper to prosecute him either under
this provision, or under the provisions relating to causing harm.

SECT18 (4) A provision in this Act with respect 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 FOR COMMITTING CERTAIN CRIMINAL OFFENCES

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 manner as if that person had attempted to commit that criminal offence.

ABETMENT OF CRIMINAL OFFENCE

SECT20 (1) A person who, directly or indirectly, instigates, commands, counsels, procures,
solicits, or in any other manner purposely aids, facilitates, 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.

EFFAH v THE REPUBLIC [1999-2000] 2 GLR 722

COURT OF APPEAL
AFREH, AKOTO-BAMFO AND AMONOO-MONNEY JJA
FACTS: The first and second appellants were on 26 February 1999 convicted by the Circuit
Court, Mpraeso of the offences of stealing and abetment of stealing, respectively. The first
appellant was sentenced to a fine of ¢6 million or, in default, three years’ imprisonment with
hard labour and the trial court ordered that “if
the fine is paid, ¢4 million be refunded to the complainant as compensation.” The second
appellant was sentenced to a fine of ¢1,500,000- or two-years’ imprisonment with hard labour.
Both appellants appealed against their convictions and sentences to the High Court, Koforidua.
The grounds of appeal of the first appellant were that: “(1) The conviction is wrong in law;” and
(2) “The sentence is harsh and excessive.” At the High Court, counsel abandoned the appeal by
the first appellant against his conviction and pursued the appeal of the first appellant against his
sentence only. The appellate High Court dismissed the appeal against sentence and indeed
enhanced the sentence imposed on the first appellant by the trial court, and substituted a sentence
of four years and six months’ imprisonment with hard labour, without the option of a fine. In the
case of the second appellant, the High Court affirmed his conviction by the circuit court and
again altered his sentence to three year’ imprisonment with hard labour, also without the option
of a fine. It is from these decisions of the High Court that the appellants have appealed to the
Court.
HELD, PER AMONOO-MONNEY JA
The offence of abetment of crime cannot be committed when the substantive crime which is
alleged to be abetted has already been committed. This is as well a legal prescription as a dictate
of common sense. The so-called “positive act of assistance voluntarily done by the second
appellant” was certainly not to “assist” the first appellant to commit any crime. From the
evidence; the second appellant did not even know at the time he received the pay-in-slip and the
cheque from the first appellant that a crime had already been committed in respect of the
¢11,700,000. The act of an abettor must precede, or be contemporaneous with, the crime abetted
and the abettor must know some essential facts constituting the crime

COP v. SARPEY & NYAMEKYE [1961] 2 GLR 756, SC

FACTS: The appellant Kofi Sarpey who is a general police constable was charged in count 3
with aiding and abetting Kodjo Koranteng a delivery clerk, Felix Lamptei, a delivery clerk, and
James Amoo Nelson, a lorry driver in the commission of the offence of stealing. The three
named persons were charged with conspiracy to steal in count 1, and in count 2 with stealing two
cases of blouses valued at £G222 15s, the property of the Palm Line Agencies Ltd.; in count 4
Felix Lamptei was charged with the forgery of Waybill No.5646; and Felix Lamptei and James
Amoo Nelson were charged with uttering the said waybill in count 5. The part taken by the
appellant is not in dispute and as such for the purposes of this judgment it is unnecessary to
recapitulate in detail the facts thereof save to state that a charge of conspiracy had earlier been
withdrawn against the appellant and the evidence clearly shows that at the time he became
involved or identified with the transaction, the alleged stealing had already occurred. His
participation was allowing the vehicle carrying the stolen goods unchecked passage.
HELD, PER Sarkodee-Adoo, JSC: In order to convict a person of aiding and abetting it is
incumbent on the prosecution to prove that the accused did any one of the acts "mentioned in
subsection (1) of section 20 a person who abets a crime shall guilty if the crime is actually
committed (a) in pursuance of abetment, that is to say, before the commission and in the presence
or absence of the abettor and (b) during the continuance of the abetment, that is to say, the
abetment must be contemporaneous in place, time and circumstance with the commission of the
offence. In our view, an act constituting an abetment in law must precede or it must be done at
the very time when the offence is committed. One of the grounds of appeal was that the judge
ought to have given the jury a warning that Lawson could be regarded as an accomplice, and
therefore was someone whose evidence required to be treated with special caution. Lawson
admitted being involved in the fight at some stage, but he denied all knowledge of a knife and
there was no evidence that he was present when it was produced. He was initially charged with
murder, but no evidence was offered against him.
DAVIES v DPP [1954] AC 378.
FACTS: Two gangs of boys had a fight, during which the principal offender (Davies) had killed
an opponent with a knife. The defendant was convicted of murder. Lawson, an accomplice was
acquitted of being an accomplice to either murder or manslaughter because there was no
evidence that L knew that any of his companions had a knife.
HELD, PER Lord Simonds LC: Had the victim died from blows to the head from the principal’s
fist or boot, then D could have been guilty as an accomplice to manslaughter, because such a
mode of attack was contemplated by him, and the death of the victim would have been an
unforeseen consequence of its being carried out. The others on his side who did not know that he
had the knife, were not parties to its use and were not guilty of murder or manslaughter.

R v BRYCE [2004] Crim L R 936

The appellant conveyed X, who was acting on the orders of another person to commit the
murder, to a place close to the victim's home. The case was also that the appellant whilst
transporting X also transported a gun. After the killing the appellant also provided assistance to
X and some others. He however, denied knowledge of the plan to kill the deceased. He stated he
had only given X a lift and that he knew nothing about the gun. Counsel for the appellant
submitted that there was no case to answer and that the appellant was far removed from the
criminal offence and that at that time the appellant transported X, X had not yet formed an
intention to commit the criminal offence and that the fudged misdirected on the required mental
element. It was also stated that the appellant caused a delay in the commission of the criminal
offence.
HELD: The appeal dismissed, a delay did not negate intention and that it was no duty of the
prosecution to show that the appellant's acts took place at a time that X had not formed intent.
Rather, the liability of an abettor was derived from that of the perpetrator of the criminal offence.
"the act must in fact assist the perpetrator: the aider and abettor must have done the act
deliberately, realizing that it was capable of assisting the offence; he must have foreseen the
commission of the offence as a real possibility; and he must when doing the act have intended to
assist the perpetrator ".

R v CROFT [1944] KB 295

FACTS: A person who was present at the suicide of another and who assisted or encouraged the
suicide, was held to be guilty of murder as a principal in the second degree.
HELD, PER LAWRENCE J:
“The authorities, however, such as they are, show, in our opinion, that the appellant, to escape
being held guilty as an accessory before the fact must establish that he expressly countermanded
or revoked the advising, counselling, procuring or abetting which he had previously given”

INSTIGATION /INCITEMENT

R v ASSISTANT RECORDER OF KINGSTON-UPON- HULL; EX PARTE MORGAN

[1969] 2 QB 58
FACTS: On May 27 of this year, the defendant, Clapp, appeared before the assistant recorder and
pleaded not guilty to an indictment containing one count only, namely, that on April 6 he had
incited Timothy James Allerton, a boy aged seven years, to commit an act of gross indecency
with him, contrary to section 1(1) of the Indecency with Children Act, 1960
HELD, PER LORD PARKER CJ: It is of the essence of the offence constituted by "counseling,
procuring or commanding “that, as a result of the counseling, procuring or commanding
something should have happened which constituted either the full offence or the attempt,
whereas in the crime of incitement, which is a common law misdemeanour, it matters not that no
steps have been taken towards the commission of the attempt or of 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 constitute the offence.

S v NKOSIYANA [1966] 4 SA 655

FACTS: [The appellant 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: [In criminal law, an inciter is one who reaches and seeks to influence the mind of another
to the commission of a crime. The machinations of the criminal mind being legion the approach
to the other's mind may take various forms, such as suggestion, proposal, request, exhortation,
gesture, argument, persuasion, inducement, goading or the arousal of cupidity. The list is not
exhaustive. The means employed are of secondary importance, the decisive question in each case
is whether the accused reached or sought to influence the mind of the other person towards the
commission of crime.
Where the intended influence does not reach the mind of the prospective incitee, the crime may
be one of attempted incitement, e.e.as when an inflammatory letter is sent but goes astray.
Furthermore “it is conduct and intention of the inciter which is vitally in issue... [The purpose of
making an incitement a punishable offence is to discourage persons seeking to influence the
minds of others towards the commission of crimes. Hence depending on the circumstances, there
may be incitement irrespective of the responsiveness, real or feigned or the unresponsiveness of
the person sought to be influenced.

COUNSELLING
R v CALHAEM [1985] 2 WLR 826, CA.
FACTS: applicant had counselled or procured the commission of the offence by one Zajac, a
private detective, on 23 February 1983. On 5 September 1983 Zajac pleaded guilty to the murder
and was duly sentenced therefor. Additionally, she had hired Zajac to commit the murder in order
to get rid of the victim, who had for some time had an affairs with the applicant's solicitor, Mr.
Pigot, with whom she was infatuated; that she had made a down-payment to Zajac of some
£5,000 at a meeting on 28 January 1983 and that he had thereafter committed the murder.
HELD, PER PARKER LJ: We must therefore approach the question raised on the basis that we
should give to the word "counsel" its ordinary meaning, which is, as the judge said, "advise,"
"solicit," or something of that sort. There is no implication in the word itself that there should be
any causal connection between the counselling and the offence. It is true that, unlike the offence
of incitement at common law, the actual offence must have been committed, and committed by
the person counselled. To this extent there must clearly be, first, contact between the parties, and,
secondly, a connection between the counselling and the murder. Equally, the act done must, we
think, be done within the scope of the authority or advice, and not, for example, accidentally
when the mind of the final murderer did not go with his actions. For example, if the principal
offender happened to be involved in a football riot in the course of which he laid about him with
a weapon of some sort and killed someone who, unknown to him, was the person whom he had
been counselled to kill, he would not, in our view, have been acting within the scope of his
authority; he would have been acting entirely outside it, albeit what he had done was what he had
been counselled to do.

PROCURING
A-G v ABLE [1984] 1 QB 795
FACTS: The Attorney General sought a declaration as to whether it would be the crime of aiding
and abetting or counselling and procuring suicide, to distribute a booklet published by the
respondent which described various effective ways of committing suicide. The stated aim of the
booklet was to help readers overcome the fear of dying.
Held, Per Woolf LJ
The offence would be committed only in the particular circumstances of the booklet being
supplied to a particular individual considering suicide and with the intent of assisting or
encouraging him. The offence was not committed by the general distribution of the booklet.
However, the court should also be reluctant to make declarations in advance as to the legality or
otherwise of particular acts. That risked usurping the function of the court which considered a
particular set of circumstances.

R v CREAMER [1966] 1QB72, CCA

PER LORD PARKER CJ:
It was the prosecution case that this young woman died in the course of an abortion performed
solely by Mrs. Harris, and that the defendant, who was not present at the time, had arranged for
the abortion to be performed, and indeed had introduced the parties, and was accordingly and
accessory before the fact. Having regard to the point raised by the certificate, which is the only
point with which we are concerned in this appeal, it is unnecessary to recite the facts suffice it to
say there was ample evidence that the defendant had counselled or procured the abortion; the
sole question is whether that being so, he could be found guilty of being an accessory before the
fact to manslaughter, and therefore found guilty of the charges as laid against him.
In the opinion of this court, the conclusion reached by Edmund Davies J. in Reg. v. Buck is
correct. 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, in the present case, abortion. This can no doubt be said to be
illogical, since the culpability is the same, but nevertheless, it is an i 1 logicality which runs
throughout the whole of our law, both the common law and the statute law A comparatively
recent example is clearly that of dangerous driving and causing death by dangerous driving.
Bearing that in mind, it is quite consistent that a man who has counselled and procured such an
illegal and dangerous act from which death, unintended, results should be guilty of being
accessory before the fact to manslaughter.

R v BAINBRIDGE [1960] 1 QB 129

FACTS: The defendant purchased oxygen-cutting equipment. Weeks later, the equipment was
used in a bank break-in and was left behind by the thieves. The defendant was convicted as an
accessory before the court. The conviction was founded upon the argument that the defendant
purchased the equipment on behalf of the thieves and knew that it was to be used for breaking
into the premises. The defendant appealed.
HELD: The Court held that it was sufficient to prove that the defendant knew about the thieves’
general intention to commit a crime, similar in type to the one subsequently actually committed.
If, equipped with such knowledge, the defendant still did something to help in the commission of
the crime (e.g. bought equipment he knew might be used in committing the crime like in the
present case), he can be found guilty of being an accessory before the fact. In other words, the
defendant does not need to know the specific time and date and location of the principal offence
in advance in order to be found guilty of being an accessory before the fact. The defendant’s
conviction was thus upheld.

REGINA v ROOK: CACD 29 Jan 1993

FACTS: The case concerns a contract killing. X promised to pay D1 and D2 to kill his wife. On
the day, D2 was nowhere to be found but D1 killed the wife anyway. D2 was also convicted for
murder as an accessory. On appeal D2 pointed out that he wasn’t there on the day, took no part in
the act and never intended that the wife should die (merely he hoped to take the money in
advance and flee without partaking in the killing).
HELD, PER LORD JUSTICE LLOYD:
The fact that the appellant had absented himself on the day the murder was carried out by the
defendant who did the killing did not amount to an unequivocal communication of the
appellant’s withdrawal from the scheme contemplated at the time he gave his assistance. The
offence of counselling and procuring can be committed by the giving of assistance before the full
offence. As in the case of joint enterprise where both parties are present at the scene of the crime,
it is not necessary for the prosecution to show that a secondary party who lends assistance or
encouragement before the commission of the crime intended the victim to be killed, or to suffer
serious injury, provided it was proved that he foresaw the event as a real or substantial risk and
nonetheless lent his assistance.

REPUBLIC v TEMA DISTRICT MAGISTRATE GRADE I; EX PARTE AKOTIAH (1979]

GLR 315
FACTS: In a contested chieftaincy enstoolment, when supporters of the rival candidate (the
applicants) expressed their intention to assemble and install him, an information was laid before
the magistrate under the Criminal Procedure Code, 1960 (Act 30), s. 22 praying the court to call
upon the applicants to show cause why they should not be ordered to execute a bond to keep the
peace. The magistrate granted the application and held that the installation of a rival chief when
one had already been installed was likely to occasion a breach of the peace between their
respective supporters. He therefore ordered the applicants to appear before him "to show cause
why they should not be made to execute bonds to refrain from installing a new chief which may
lead to a breach of the peace." The applicants applied for orders of certiorari and prohibition on
five grounds all of which were rejected by the High Court
PER AGYEPONG J: 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.
AIDING
THAMBIAH v R [1966] AC 37
FACTS: The appellant was convicted of abetting another man in fraudulently using as genuine a
cheque which had been forged by the alteration of the payee's name. He appeals on two grounds,
first that evidence was improperly admitted, and secondly that in any event there was no
sufficient evidence to support the conviction. The cheque in question was drawn for the sum of
21,740 rupees on the Central Bank of Ceylon. It was stolen in the post on some date after
October 9, 1958. The name of the original payee was erased by the fourth accused who
substituted a name assumed by the first accused. On October 14, the first accused presented the
forged cheque for payment into an account which he had recently opened under his assumed
name with the Wellawatte branch of the Bank of Ceylon. The case against the appellant rests
only on the facts concerning the opening and maintenance of that bank account and on the
inferences which are to be drawn from those facts.
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. The
appellant's actions in opening and maintaining the account showed an intention that it should be
used as a vehicle for presenting forged cheques such as the one which was in fact presented. That
intention was implemented when the cheque came to be presented. The appellant then became
guilty of abetting its presentation. In their Lordships' opinion therefore there was sufficient
evidence to justify the verdict.

NATIONAL COAL BOARD v GAMBLE [1959] 1 QB 11

PER DEVLIN J: A person who supplies the instrument for a crime or anything essential to its
commission aids in the commission of it; and if the does so knowingly and with intent to aid, he
abets it as well and is therefore guilty of aiding and abetting. I use the word "supplies" to
comprehend giving, lending, selling or any other transfer of the right of property. In a sense a
man who gives up to a criminal a weapon which the latter has a right to demand from him aids in
the commission of the crime as much as i f he sold or lent the article, but this has never been held
to be aiding in law .see R v Lomas [(1913)110 LT239, and R v Bullock [ 1955] 1 All ER 15).
The reason, I think, is that in the former case there is in law a positive act and in the latter only a
negative one. In the transfer of property there must be either a physical delivery or a positive act
of assent to a taking; but a man who hands over to another his own property on demand,
although he may physically be performing a positive act, in law is only refraining from detinue.
Thus in law the former act is one of assistance voluntarily given and the latter is only a failure, to
prevent the commission of the crime by means of a forcible detention, which would not even be
justified except in the case of felony. Another way of putting the point is to say that aiding and.
abetting is a crime that requires proof of mens rea, that is to say, of intention to aid as well as of
knowledge of the circumstances and that proof of the intent involves proof of a positive act of
assistance voluntarily done.
PER SLADE J: Before a person can be convicted of aiding and abetting the commission of an
offence the prosecution must prove: (a) that he knew the essential matters which constituted the
offence; and (b) that with such knowledge he assisted, or at least encouraged, the principal
offender to commit the offence. Mere passive acquiescence is sufficient only, I think, where the
alleged aider and abettor has the power to control the offender and is actually present when the
offence is committed: for example, the owner of a car sitting alongside his chauffeur when the
latter commits an offence.
In my judgement the words "assist" and "encourage" necessarily import motive, i.e., purpose or
object. It is not sufficient that the alleged abettor should be proved to have done some act, or to
have made some omission, without which the principal offender could not have committed the
offence; nor is it sufficient that such act or omission had the effect of facilitating the commission
of the offence or that it in fact operated on the mind of the principal offender so as to decide him
to commit it. The prosecution must prove that the act or omission on which they rely as
constituting the alleged aiding and abetting was done or made with a view to assisting or
encouraging the principal offender to commit the offence or, other words, with the motive of
endorsing the commission of the offence.

ENCOURAGEMENT
R v CLARKSON & ORS [1971] 3 All ER 344
FACTS: Appellants, present at the scene of the repeated rape of a female by others, were
convicted of abetment.
HELD: on appeal: 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.

AMOAH v THE REPUBLIC [1989-90] GLR 266

HIGH COURT, CAPE COAST
FACTS: This is an appeal against the conviction and sentence of the appellant by the District
Court, Grade II, Assin Fosu presided over by his Worship W.A.M. Swatson. The appellant and
two others were charged with the offences of conspiracy to commit crime contrary to section 23
(1) of the Criminal Code, 1960 (Act 29) and fraud by false pretences contrary to section 131 of
Act 29. They all pleaded guilty and were convicted on their own plea and each sentenced to
twelve months’ imprisonment with hard labour on each count; the sentences were to run
concurrently.
HELD, PER KPEGAH J
It may here be opportune to recall the law that the mere presence of a person at the scene of
crime does not render him guilty of the crime or make him an accomplice. To qualify him as an
accomplice, the presence of the person must at least have encouraged the accused in the
commission of the crime. In the West African Court of Appeal case of Azumah and Kehodo v. R
(1950) 13 W.A.C.A. 87 it was contended on appeal on behalf of the appellants that there had
been a misdirection of the jury by the trial judge because he failed to hold that the principal
witness for the prosecution was an accomplice. The argument was dismissed on the ground that
the evidence only established that the alleged accomplice was merely present when the crime of
murder was committed, was not a confederate, had not participated in the crime and was not,
therefore, an accomplice.

R v CONEY (1882) 8 QBD 534

One can be held to have wilfully encouraged the commission of a crime if he, voluntarily and
purposely present at, and witnessing the commission of the crime, 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.

OBENG v THE REPUBLIC [1971] 2 GLR107, CA

FACTS: When one M. discovered that she was pregnant she went with her friend, one A., to the
appellant to ask if he could terminate her pregnancy. In the presence of A. the appellant agreed to
procure an abortion on M. Subsequently the appellant administered four injections and following
the last injection he arranged for M. to stay with one O. who was informed of what had
happened. During the night M. aborted and she was taken to the hospital by O. In due course the
appellant was convicted of attempting to cause an abortion. On appeal the appellant submitted
(1) that the trial judge had failed to direct the jury that A. was an accomplice with the requisite
caution in the evaluation of her evidence therefore not having been given; (2) that the evidence
of O. had not carried the prosecution’s case any further because if the test of sufficiency and
clarity had been applied to the evidence it would have been found wanting; and (3) that the trial
judge erred when he directed the jury that “our law does not require that the prosecution must
prove that the abortion was caused by the means used.”
HELD, PER SOWAH JA: dismissing the appeal, (Per the majority) A woman who accompanied
a friend twice to negotiate for an abortion is not guilty of abetting the crime. (Per the minority)
Accused's voluntary presence shows that she was an accomplice.
NB, Azu Crabbe J.A. dissented

SAYCE v COUPE [1953] 1QB1

A person who buys goods from another which, to his knowledge, is an offence for the latter to
sell, is guilty of abetting the unlawful sale.

SECT20 (2) A person who abets a criminal offence shall, if the criminal offence is actually
committed in pursuance of, or during the continuance of, the abetment, be deemed to have
committed that criminal offence.

R v DUNNINGTON [1984] 1 All ER 676

FACTS: The appellant, even though he had not involved himself in the action in the commission
of the crime, he sat and waited in a get-away car while his friends attempted to rob a store. The
attempt failed and he was convicted of abetment of attempted robbery. He was held to have been
properly convicted.

SECT20 (3) A person who abets a criminal offence is, if the criminal offence is not actually
committed.
(a) liable to imprisonment for life where the criminal offence abetted was punishable by
death, and
(b) in any other case the abettor is punishable in the same manner as if the criminal offence
had been actually committed in pursuance of the abetment.
SECT20 (4) An abettor may be tried before, with, or after a person abetted, and although the
person abetted is dead or is otherwise not amenable to justice.

IDDI v THE REPUBLIC [1980] GLR 623

FACTS: The appellants were arraigned before the Circuit Court, Wa, on the charge of abetment
of stealing contrary to sections 20 (1) and 124 of the Criminal Code, 1960 (Act 29) . In count one
of the same charge sheet, one F. was charged with the principal offence of stealing contrary to
section 124 of Act 29. At the trial F. was acquitted and discharged. However, the trial judge in
the course of reading his judgment purported suo motu to amend the charge in count two to read
“dishonestly receiving,” and accordingly convicted the appellants and sentenced each of them to
nine months’ imprisonment. It was against these convictions and sentences that the appellants
appealed to this court.
HELD, TAYLOR J: an acquittal of the principal offender in circumstances showing that the
crime was never committed necessarily meant that an abettor was entitled to an acquittal of the
offence of aiding and abetting. If the crime was indeed committed but for technical reasons, the
principal offender was acquitted, the acquittal might not necessarily operate in favour of an
abettor. In the instant case, by acquitting the principal offender of the theft charge, the trial court
was in effect holding that the appellants did not abet the theft involving the acquitted person. To
suggest that once a principal offender was acquitted an aider and abettor must mandatorily be
acquitted was erroneous having regard to section 20 (4) of Act 29.

SECT20 (5) An abettor may be tried before, with, or after any other abettor, whether the
abettor and any other abettor abetted each other in respect of the criminal offence or not, and
whether they abetted the same or different parts of the criminal offence.
SECT20 (6) An abettor shall have the benefit of any matter of exception justification, or
extenuation to which the abettor is entitled under this Act, although the person abetted or any
other abettor is not entitled to the like benefit.
SECT20 (7) A person who, within the jurisdiction of the Court, abets the doing beyond the
jurisdiction of an act which, if done within the jurisdiction, would be a criminal offence, is
punishable as if that person had abetted that criminal offence.

ABETMENT AND THE COMMISSION OF A DIFFERENT CRIMINAL OFFENCE

SECT21 (1) Where a person abets a particular criminal offence, or abets a criminal offence
against or in respect of a particular person or thing and the person who abetted actually commits
a different criminal offence, or commits the criminal offence against or in respect of a different
person or thing, or in a manner different from that which was intended by the abettor and,
(a) it appears that the criminal offence actually committed was not a probable consequence of the
endeavour to commit, nor was it substantially the same as the criminal offence which the abettor
intended to abet, nor was it within the scope of the abetment, the abettor is punishable for
abetment of the criminal offence which the abettor intended to abet in the manner provided by
this Chapter with respect to the abetment of criminal offence which are not actually committed;
TEYE alias BARDJO & ORS v THE REPUBLIC [1974] 2 GLR 438, CA
FACTS: The first, second and third appellants together with two other persons, agreed on a joint
enterprise to break into and enter the deceased’s house to steal therefrom. In the course of the
execution of the joint enterprise, the third appellant went beyond what had been agreed upon, by
killing the deceased because the deceased had recognised him and mentioned his name. At their
subsequent trial by a jury for the offences of conspiracy to commit murder and murder, the trial
judge failed to direct the jury to determine whether the killing was in pursuance of or went
beyond the agreed joint enterprise. He also remarked that the refusal of the third appellant to give
a statement when charged, meant that he had a guilty mind. The appellants were convicted of the
murder charge. On appeal,
HELD, PER SOWAH JA: Where two or more people embark upon a joint criminal exercise,
each of them is answerable for acts done in pursuance of the joint enterprise, including acts
incidental to and necessary for the achievement of the joint enterprise and which were in the
contemplation, or ought to have been in the contemplation, of the participants at the time when
the exercise was embarked upon. It is where one participant takes a different course or goes
beyond what has been agreed upon or was in the contemplation of the parties, that he alone is
liable.

AGYEMAN @ GEEMAN & NYAME @ JAGGERPEE v THE REPUBLIC No 7/98, CA

(Unreported), delivered on 19th November 1998.
FACTS: The first appellant had been convicted and sentenced to death for the murder of a taxi
driver, and the second appellant had been convicted of abetment of the murder and sentenced to
life imprisonment. The taxi driver had been shot by the first appellant as the second appellant
was struggling with him in order to get him to return some sand which he had collected from
their premises for the purpose of placing a curse on them. They brought the instant appeal
contending that the judge had misdirected the jury on the law of murder and abetment and
consequently had occasioned a miscarriage of justice to them.
HELD: the killing of the taxi driver went beyond the scope of the joint enterprise. Since there
was clearly an intention only to assault the taxi driver but not to kill him, the act of the second
appellant was not intended to aid the first appellant in the killing.
Consequently, the second appellant was liable only for common assault and not for abetment of
murder.

ARHIN ALIAS PALL MALL v THE REPUBLIC [1995-96] 1 GLR190, CA

FACTS: Appellant and another were convicted of abetment of preparation to overthrow the
government of the Provisional National Defence Council when they supplied two pistols and
ammunition to soldiers in detention to aid their escape from Ussher Fort Prison on 19th June
1983. The soldiers, who were in detention awaiting trial for an alleged attempt to overthrow the
Government, shot and wounded a Prison Officer at Ussher Fort and escaped. Upon their escape
they released their colleagues at Nsawam Prison after killing a Prison Officer, and proceeded to
attempt to overthrow the government. When they failed, they fled into exile
Appellant appealed against his conviction and sentence of 25 years imprisonment by the
National Public Tribunal, contending that he had no way of knowing that the soldiers would use
the arms to attempt to overthrow the government as escape from prison was not related to the
attempt to overthrow the government in any way.
HELD, PER FORSTER JA: the question was (pp.196-197) "whether or not the crime committed
was a reasonably proximate consequence of the crime of jail-break procured or facilitated?
Could the crime of an attempt to overthrow the government, allegedly committed by the
jail-breakers when they secured their liberty beyond the prison gates be considered as growing
out of the known enterprise. The substantive offence of an attempt to overthrow the government
of Ghana did not fall within the scope of the unlawful object for which the pistols were supplied,
that is facilitating the jail-break by these desperate men. An attempt by the escaped prisoners to
overthrow the government was decidedly too remote and conjectural a possibility for the abettors
to have reasonably known or foreseen as a probable result of the prisoners' quest for freedom. It
was a risky, dangerous and unrelated adventure, entirely unrelated to their declared object of
breaking jail".
Appeal against conviction upheld but appeal against sentence was dismissed as the acts done in
pursuance of the crime facilitated were serious enough to merit that type of sentence.

DPP FOR NORTHERN IRELAND v MAXWELL [1978] 3 All ER1140

FACTS: The appellant was a member of an illegal organisation whose aims involved the use of
violence. He received orders one day from the organisation to the effect that he was to lead
another car to a pub in a particular area. Unknown to him, the car contained some explosives that
were used subsequently to bomb the pub.
HELD: appellant was an accomplice to the bombing although he did not know the nature of the
attack that was to be mounted on the pub.

SECT21 (1) (b) In any other case, the abettor shall be deemed to have abetted the criminal
offence which was actually committed, and is liable to punishment accordingly.
R v SMITH (WESLEY) [1963] 1WLR 1200
FACTS: The appellant and his friends went to a pub to drink. They were involved in an
argument. One of the friends declared that he would "tear the place down." The appellant
assisted him in this endeavour by collecting bricks and hurling them into the pub. The other
friends fought with the barman and one of them stabbed him to death. Held: the death of the
barman was a probable consequence of their joint activity and therefore the appellant was guilty
of manslaughter.

CHANG WING-SIU v R [1985] AC 168

FACTS: The appellants attacked a prostitute and her husband in their flat. Two of the appellants
carried knives which they used to stab the husband to death. The third appellant contended that
although he knew of the knives the others carried, there was no prior agreement that the knives
would be used.
HELD: it was foreseeable that the knives would be used in pursuance of the crime abetted.
Therefore, all three participants were guilty of murder.

SECT21 (2) Where a person abets a riot or unlawful assembly with the knowledge that unlawful
violence is intended or is likely to be used, that person commits the criminal offence of abetting
violence of the kind or degree which is committed by any other person in executing the purposes
of the riot or assembly, although that person did not expressly intend to abet violence of that kind
or degree.

R v KOFI ANTWI [1956] 1 WALR 29

FACTS: Appellant abetted a riot although he had knowledge that violence would be used.
HELD: anyone who abetted a riot was liable for any violence used.

CONSPIRACY
SECT23 (1) Where two or more persons agree or act together with a common purpose for or in
committing or abetting a criminal offence, whether with or without a previous concert or
deliberation, each of them commits a conspiracy to commit or abet the criminal offence.
BLAY v THE REPUBLIC [1968] GLR1040
FACTS: Appellant represented to another that he could double money by spiritual means. He
took money from the victim and on three occasions performed some rituals. On two of those
occasions, he was overheard carrying on a conversation with a disembodied voice. His efforts
did not succeed, and he was subsequently convicted, inter alia, of conspiracy to defraud. He
appealed against the conviction of conspiracy to defraud because he was the only person
involved in the enterprise.
HELD, PER ARCHER J:
The conspiracy count was not sustained because conspiracy involved an agreement between two
or more human beings and not between one human being and an unknown voice or spirit.
There was no hard and fast rule that a verdict of not guilty on a conspiracy charge was
inconsistent with a verdict of guilty on the substantive offence. Each case must depend on its
particular circumstances. The fact that the conviction on the conspiracy charge was not
maintainable and therefore quashed did not affect the substantive offence because there was
sufficient evidence on which the appellant could be convicted for the substantive offence.

REPUBLIC v BOSSMAN & ORS [1968] GLR 595

FACTS: The accused and some others had been charged with conspiracy to extort money from
applicants of import licences, as a result of the findings of a Committee of Enquiry. The other
accused persons were cleared of the charges, with the result that only the accused remained liable
for the acts. The question was whether a person whose co-conspirator was acquitted of
conspiracy could be guilty of the offence?
HELD, PER AMISSAH JA:
Acts and declarations of one conspirator would be binding on another conspirator provided it
was established that there was a conspiracy in existence; that all the parties were members of that
conspiracy and finally that the acts and declarations were in furtherance of their common design.
In the absence of any conspiracy between the first and second accused, the acts and
declarations of the second accused could not bind the first accused.
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.

AZAMETSI & ORS v THE REPUBLIC [1974] 1 GLR 228, CA

FACTS: All the appellants and the deceased were members of a fishing group, of which the first
appellant was the head. At a meeting of the group at the first appellant’s house in connection
with the yearly sacrifice of a human being to their fetish to usher them in a bumper fishing
season, a secret decision was reached by some of the members at the meeting that the deceased
ought to be offered for the sacrifice. The deceased while walking home after the meeting with
some other members of the group was gripped by the fifth and sixth appellants and taken to the
house of the first appellant where he was killed and buried in a bathroom in that house. The
killing was witnessed by the first appellant and his wife, the second prosecution witness, who
was treated as an accomplice by the trial judge.
Three days after the burial, all the appellants came to exhume the body and subsequently dumped
it into the sea, with the help of other members of the group. The body was however washed
ashore at Lome, where a post-mortem examination was performed by a specialist pathologist
who was of the opinion that the deceased was murdered before being put into the sea. The body
was later collected from Lome by the relatives of the deceased and on their return to Ghana
another postmortem examination was performed by another doctor at the Keta Hospital. The
appellants were therefore charged with the offences of conspiracy to commit murder and murder.
HELD, PER AZU CRABBE CJ: 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 killing took place, could not be accidental but was in furtherance of the
common purpose.

KAMBEY & ORS v THE REPUBLIC [1989-90] GLRD. 24, CA; affirmed, [1991] 1 GLR 235,
SC
FACTS: Appellants went to harvest dawadawa fruits. They were challenged as to their right to
enter the land and harvest dawadawa by people from another village. There was a fight and two
persons-were killed by arrows. None of the appellants was identified as the one who shot the
arrows. The appellants were convicted of murder and appealed.
HELD, PER LAMPTEY JA, allowing the appeal: there was no evidence that the appellants
caused the deaths. Nor was there evidence that they had set out to harvest the fruit armed with
bows and arrows. Therefore they could not be liable for having executed a common enterprise.

STATE v BOAHENE [1963] 2 GLR 554

FACTS: Accused persons entered into negotiations for the purpose of purchasing a printing
machine to print counterfeit Ghana currency. They were charged, inter alia, with conspiracy.
HELD: the test was whether the parties had a common purpose and not whether they were
acquainted with each other. The existence of a common design could be inferred from their
subsequent overt acts.

SECT23 (2) A person within the jurisdiction of the Courts can be convicted of conspiracy by
agreeing with another person who is beyond the jurisdiction, for the commission of abetment of a
criminal offence, to be committed by them or either of them, or by any other person, either
within or beyond the jurisdiction;
SECT23 (3) For the purposes of subsection (2) as to a criminal offence to be committed beyond
the jurisdiction, "criminal offence" means an act which, if done within the jurisdiction, would be
a criminal offence under this Act or under, any other enactment.

DOE v THE REPUBLIC [1999-2000] 2 GLR 32

COURT OF APPEAL, ACCRA
AFREH, AKOTO-BAMFO AND AMONOO-MONNEY JJA
FACTS: The appellant and one other person who were both employees at the Kintampo branch
of the Ghana Commercial Bank were arraigned before the Brong Ahafo Regional Tribunal on
charges of conspiracy to commit a crime, falsification of accounts and stealing contrary to
sections 23(1), 140 and 124 respectively of the Criminal Code, 1960 (Act 29). In a nutshell, the
prosecution’s case was that the appellant and the other person siphoned various sums of money
from the bank by falsifying the books, withdrawing moneys from the accounts of the bank’s
customers and tampering with the records of the customers in the ledger books. By these means,
they withdrew a total sum of ¢20,500,000 from the bank. Of this amount, the appellant was
charged and convicted on three counts of conspiracy to steal, falsification of accounts and
stealing ¢13,266.960. He was admitted to bail after conviction. About one year after the
conviction, when he had refunded ¢1 million out of the subject-matter of the charge, he was
sentenced to five years imprisonment with hard labour on count 1; one year with hard labour on
count 2 and seven years with hard labour on count 3. The learned tribunal chairman ordered the
sentences on counts 1 and 3 to run concurrently and “cumulatively” with count 2. It is against the
conviction and sentences that the appellant appealed to this court.
HELD PER AKOTO-BAMFO JJA
“It is trite learning that the offence of conspiracy cannot be maintained against one person only
since by definition two or more persons must have acted together; it is however possible to
charge a known person together with others at large. Under section 23(1) of Act 29:
“If two or more persons agree or act together with a common purpose for or in committing or
abetting a crime, whether with or without any previous concert or deliberation, each of them is
guilty of conspiracy to commit or abet that crime, as the case may be,”
It is on record that seven other persons were charged with the offence of conspiracy and that they
all pleaded guilty to the charge; they were all employees of the Ghana Commercial Bank at its
Kintampo branch—a common thread ran through their activities, they all falsified the account of
customers of the bank and withdrew moneys from those accounts. Since they pleaded guilty to
the charges, there was no need for the prosecution to lead further evidence on that count. The
tribunal therefore, in my view, properly convicted and sentenced the appellant.”

FOLI VIII AND OTHERS v. THE REPUBLIC [1968] GLR 768–773

HIGH COURT, HO
FACTS: The appellants were charged before the circuit court with conspiracy to commit crime
contrary to sections 23 (1) and 24 (1) of Act 29, and 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 locality 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. The deceased's head of family and the paramount chief of the locality, the
first appellant, gave evidence testifying to that custom. The appellants' further defence was that
by cremating the corpse they genuinely believed that they were acting in consonance with an
accepted custom and did not know that they were offending against any law of the land. On their
conviction on both counts, they appealed to the High Court.
HELD, PER KINGSLEY-NYINAH J.
Subsection (2) of section 29, also provides that: "A person shall not, except as in this Code
otherwise expressly provided, be exempt from liability to punishment for any act on the ground
of ignorance that the act is prohibited by law." In such a case as this instant one, charging
conspiracy, the appellants' ignorance of a material fact is completely irrelevant in relation to the
conspiracy charge, because the conspiracy touches, and relevantly concerns, a statutory, and not
a common law, offence. An authority well in point is the case of R. v. Churchill (No. 2) [1966] 2
All E.R. 215, C.C.A. which lays down expressly that a person can be guilty of conspiracy to
commit a statutory offence which is absolutely prohibited, without having knowledge of either
the existence of that statutory interdiction or bar, or else of a material fact constituting that
offence. And the fact, as in this case, that the appellants had no intention, at the time of burning
the corpse, of violating the law, cannot properly exclude them from the necessary consequences
of having broken the law.

COMMISSIONER OF POLICE v. DIMBIE [1959] GLR 202-207

IN THE COURT OF APPEAL
VAN LARE J.A. (C.J.), ACOLATSE J. AND OLLENNU J.

FACTS: Dimbie, a Member of Parliament for Tumu, in the Northern Region, was Chairman of
the Tumu District Council and also Chairman of the Council's Finance and Staff Committee at all
times relevant to the charges. Contrary to strict regulations, of which he must be deemed to have
been aware and which he apparently intended to circumvent, Dimbie requested the other person
accused together with him, who was the acting Treasurer of the Tumu District Council, to part
with money belonging to the Council against worthless cheques given in exchange by Dimbie.
This did not happen on one occasion only, but was repeated at other times. Dimbie and the acting
Treasurer concerned were prosecuted before G. L. A. Djabanor, Esquire, District Magistrate,
charged jointly on three counts of stealing sums of £60, £80, and £120 respectively, and on three
counts of conspiracy to steal these sums. They were convicted on all counts, and Dimbie (alone)
appealed to the High Court. The appeal was dismissed by Smith J. Dimbie appealed further to
the Court of Appeal
HELD PER VAN LARE AG. C.J.
There were three charges of conspiracy, and three charges of stealing. Apart from the evidence
that both men together stole the sum specified in each of the three counts of stealing on three
different dates there was no specific evidence to establish that there was any anterior conspiracy
to commit the offence of stealing. Conspiracy to commit a criminal offence is by itself a
criminal offence, whether the offence contemplated is or is not committed. It follows, therefore,
that where there is a specific charge of conspiracy, that is to say in addition to the offence itself,
there must be some evidence directed and confined to the facts which constitute or are concerned
with the conspiracy. It is not so in this case. Although we are aware that it often happens that
conspiracy to do such a thing as stealing may be inferred from the evidence establishing theft,
nevertheless in giving the best consideration to this case we do not think there was evidence
upon which any of the three conspiracy charges as separate and specific offences can be
supported. We would therefore allow the appeal with respect to the conspiracy charges, that is to
say, counts 1, 3 and 5.
COMMISSIONER OF POLICE v AFARI AND ADDO [1962] 1 GLR 483, SC
FACTS: The appellants in this case were convicted on 14th March, 1962, at the Accra Circuit
Court. Both appellants were charged with conspiracy to defraud by false pretences contrary to
section 23 (1) and section 131 of the Criminal Code, 1960.1(1) The first appellant alone was
charged on the second count with defrauding by false pretences contrary to section 131 of the
Criminal Code, 1960, and the second appellant on a third count with aiding and abetting the first
appellant in committing the offence stated in count 2 contrary to section 20 (1) and (2) and
section 131 of the Criminal Code, 1960. They appealed their conviction on grounds inter alia that
there was no evidence of conspiracy.
HELD PER CRABBE JSC
“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 evidence of subsequent acts, done in concert and so
indicating a previous agreement. In the view of this court the conduct of appellants on that
Sunday in March, 1961, in the house of first appellant shows some collaboration between them
which is evidence of a previous agreement to carry a criminal design into effect. There was in
this case sufficient evidence directed and confined to the facts which constitute the anterior
conspiracy, and therefore in the opinion of this court the inclusion of a count of conspiracy in the
instant charge was perfectly justified. This ground of appeal therefore fails.”

STATE v OTCHERE & ORS [1963] 2 GLR 463

The prosecution’s case was that in the years 1961 and 1962, some members of the United Party
in exile, among whom, were Obetsebi Lamptey and the first two accused persons, held meetings
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. The evidence against the
first accused was based mainly on a number of confession statements made by him in which he
admitted attending meetings in Lomé organised by members of the United Party where plans
were hatched to overthrow the Government of Ghana by force. In his defence, he stated that he
had recanted after having agreed with the others, and that he did nothing further to bring to
fruition what had been agreed upon. He also said that he made those statements because he was
threatened. He stated that he was requested to make the statements to implicate the third, fourth
and fifth accused persons so that he could be used as a prosecution witness and that if he had
refused to make the statements he would have been hanged. His counsel did not object to the
statements being put in evidence. He, however, cross-examined prosecution witnesses with the
aim of establishing that the statements were inadmissible. In his address to the court, counsel
submitted that since the penalty for the offence of treason is death, an accused person could not
be convicted solely on the basis of his confession statements unless there was corroboration of
the statements. When the first accused was arrested and while in police custody, he attempted to
commit suicide. He was charged with attempted suicide to which he pleaded guilty. The
prosecution suggested that his plea of guilty to the charge of attempted suicide in itself provided
evidence of his guilt in respect of the charges in the instant case. The case against the second
accused was that he, like the first accused, was among the persons who held meetings in Lomé
where plans were laid to overthrow the Government of Ghana. The evidence of the prosecution
consisted mainly of a number of letters addressed to the President indicating that the writer of the
letters was a party to, or was aware of plots to overthrow the Government. The accused admitted
that he was the author of one of the letters. He said the others were written by one L. Desimus. A
prosecution witness, one Adotei Addo, gave evidence that he saw both the first and the second
accused at a United Party meeting in Lomé convened for the purpose of planning the overthrow
of the Government of Ghana. The prosecution’s case in respect of the three remaining accused
persons was that they joined the conspiracy in Accra when Obetsebi Lamptey, one of the
architects of the plot hatched in Lomé, returned to Ghana to put it into execution. To establish
this point the prosecution relied mainly on the evidence ofAdotei Addo and one Mallam Tula.
These two had, a few months earlier, been tried and convicted of treason for the part they played
with Obetsebi Lamptey in making preparations for the execution of the objects of the conspiracy
which was also the subject of the charges against the three accused persons. Counsel for the
prosecution submitted that since the two witnesses were convicted on their own evidence (which
consisted largely of their own confessions in which they named the three accused persons) which
the trial court accepted, the court, in the instant case, should in considering their evidence have
regard to that fact. Adotei Addo made about eight statements to the police. He made no mention
of the accused persons in the first five statements. In his sixth statement, however, he stated that
he had met the three accused persons at Obetsebi Lamptey’s hideout in Accra and that the three
in association with Obetsebi Lamptey were responsible for the bomb outrages in the country. In
his seventh statement he retracted his story about the complicity of the accused persons in the
conspiracy to overthrow the Government. He said he implicated them because the police thought
he was not telling them the truth and he made the statement to avoid being beaten. In his
evidence at the trial, he said that the three accused persons were in fact involved in the plot to
overthrow the Government. His explanation for not mentioning their names in his first five
statements was that he thought if he left their names out they would come out to defend him
during his trial. Mallam Tula confirmed Adotei Addo’s evidence that the accused persons had
been at Obetsebi Lamptey’s hideout. Before the trial the police had confronted the accused
persons with Adotei Addo and Mallam Tula in order that the two witnesses might confirm
whether or not they were the persons they saw at Obetsebi Lamptey’s hideout. Counsel for all
three accused persons submitted that the court should reject Adotei Addo’s evidence as being
wholly unreliable in that his evidence flatly contradicted his statements to the police which in
themselves were also contradictory on material issues. Counsel for the prosecution, on other
hand, contended that the criticism of Adotei Addo’s evidence would have been valid if the
contradictions complained of had been between the evidence he gave at his own trial and the one
he gave in the present case. He said the evidence should be accepted once the witness was able to
give a reasonable explanation for the contradictions. He submitted that the court would only be
justified in rejecting Adotei Addo’s evidence if he had been treated by the prosecution as a
hostile witness as a result of which the contradictions were brought out. He further submitted that
since Adotei Addo’s evidence had been corroborated by Mallam Tula, the court should accept it.
The other evidence adduced against the three accused persons was mostly circumstantial. The
prosecution alleged, among other things, that the three were aware of a plan to assassinate the
President, by throwing a hand-grenade at him while on his trip to Upper Volta in July 1962, and
that because of that knowledge, the three persons though members of the entourage avoided
being near the President. It was further alleged that when the bomb was thrown at the President
they were nowhere near the scene. The prosecution stated that after the Kulungugu incident,
rumours circulating in the country linked the three with the incident, and that when the third
accused was confronted with it he appeared very much worried.
HELD, PER KORSAH CJ: On the evidence adduced before the court, there was an agreement
among the members of the United Party in exile, among whom was Obetsebi Lamptey, to
overthrow the Government of Ghana by unlawful means and in furtherance of the said agreement
Obetsebi Lamptey came to Accra in May 1962, and the attempted assassination of the President
at Kulungugu on the 1st August, 1962, and the subsequent exploding of hand-grenades in Accra
were in furtherance of the objects of the agreement.
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.
In order to prove a conspiracy, the evidence may be either direct or circumstantial, but where it is
sought to prove a conspiracy solely by circumstantial evidence, the evidence must be such that
not only may an inference of conspiracy be drawn from it, but also that no other inference can be
drawn from it.
Co-conspirators need not be personally acquainted with each other. It was enough if they were
linked by a common purpose.

SOMCHAI LIANGSIRIPRASERT v GOVERNMENT OF USA & ANOR [1991] 1 AC 225

Conspiracy entered into abroad, is triable by the courts in the jurisdiction although no overt acts
pursuant to the conspiracy are done within the jurisdiction.
PUNISHMENT FOR CONSPIRACY
SECT24 (1) Where two or more persons are convicted for the commission or abetment of
criminal offense., each of them shall, where the criminal offence is committed, be punished for
that criminal offence., or shall where the criminal offence is not committed, be punished as if
each had abetted that criminal offence.
SECT24 (2) A Court having jurisdiction to try a person for criminal offence shall have
jurisdiction to try a person charged with conspiracy to commit or abet that criminal offence.

REPUBLIC v MILITARY TRIBUNAL: EX PARTE OFOSU- AMAAH & ANOR (NO 2)

[1973] 2 GLR 445, CA
FACTS: The applicants, together with other persons, were charged with certain offences under
the Subversion Decree, 1972 (N.R.C D. 90), and tried before a military tribunal appointed under
the said Decree. The tribunal by their decision convicted them and then sentenced the first
applicant to death which was later commuted to life imprisonment whilst the second applicant
was sentenced to life imprisonment. The applicants, in the instant application, sought an order of
certiorari to quash the proceedings and the decision of the tribunal. In raising a preliminary
objection to the jurisdiction of the court to entertain the application, the respondent contended
that (a) a military tribunal appointed under N.R.C.D. 90 was not an inferior court because only
superior courts had power to pass death sentences and since the tribunal also had power under
section 1 of the Decree to impose a death sentence in respect of certain offences triable by that
tribunal, the said tribunal was not inferior to the High Court; (b) even if the tribunal were an
inferior court, the High Court could not exercise supervisory jurisdiction over it in view of the
provisions of Act 372, s. 20 and N.R.C.D. 90, s. 4 (7); and (c) even if, as contended by the
applicants, section 20 of Act 372 were invalid, being repugnant to article 114 of the Constitution,
1969, the court had no power to declare it a nullity because that jurisdiction was now exclusively
vested in the Court of Appeal to which court the question ought to be referred for determination
in terms of article 106 of the suspended Constitution, 1969.
HELD PER APALOO JA dismissing the appeal;
It is clear that a military tribunal established under N.R.C.D. 90 exercises jurisdiction by reason
of the clear provision of law. Its jurisdiction over persons generally is not permissive but
compulsory. No reasons for public policy have been advanced why such a tribunal, which has all
the attributes of a court properly so called, should be regarded as other than a court. The judge
below, though holding that it is not a superior court, considered it a court or a "court of a sort."
Whatever epithet is used in describing it, we think a military tribunal established under the
Subversion Decree, 1972, is a court within the true intendment of section 24 (2) of the Criminal
Code. It follows that we are of opinion that not only is the charge of conspiracy to commit
subversion a perfectly valid charge but that the military tribunal has jurisdiction to try the
appellants on that charge. We accordingly hold that there was no error of law which can properly
be corrected by an order of certiorari.

REPUBLIC v. MAIKANKAN AND OTHERS [1972] 2 GLR 502

HIGH COURT, ACCRA
FACTS: The accused persons, all in the cattle business, conspired to defraud the Bank of Ghana
by false pretences and they did in fact defraud the bank in its foreign exchange reserves by
making illegal payments outside Ghana. Acting as cattle dealers or agents of importers of cattle
into Ghana, the accused persons transferred the various sums of money stated in the charges
abroad on the strength of exchange control forms Al approved by the Bank of Ghana. The
documents which supported the applications for the approval, namely, veterinary permits,
customs bills of entry, agency agreements, and tax clearance certificates, were all forgeries and
the accused persons knew of the falsity of the documents. The ten accused persons are charged
with various offences, namely, (1) conspiracy to defraud contrary to sections 23 (1) and 131 of
the Criminal Code, 1960 (Act 29); (2) conspiracy to contravene the restrictions imposed by
section 6 of the Exchange Control Act, 1961 (Act 7 1); (3) conspiracy to commit forgery
contrary to sections 23 (1) and 159 of the Criminal Code, 1960; (4) forgery, contrary to section
159 of the Criminal Code, 1960; (5) uttering forged documents, contrary to section 169 of the
Criminal Code, 1960; (6) defrauding by false pretences contrary to section 131 of the Criminal
Code 1960; (7) making illegal payments outside Ghana, contrary to section 6 of the Exchange
Control Act, 1961, and paragraph 5 (1) of Part II of the Fourth Schedule to the Exchange Control
Act, 1961 (Act 71). There are 515 charges in all and each of the accused persons has pleaded not
guilty to all the charges against him.
HELD, PER ABOAGYE J
From the words of section 23 (1) of the Criminal Code, 1960, it is clear that for the prosecution
to succeed on count 1 against the ten accused persons there must be evidence that the accused
persons agreed or acted together with a common purpose to commit the offence of defrauding by
false pretences. From the evidence adduced by the prosecution, both documentary and oral, I
cannot find any evidence that the accused persons agreed or acted together to commit any
offence. In R.v. Zonyra [1959] G.L.R. 26, C.A. cited by counsel for both the prosecution and the
defence it was held that for the prosecution to succeed on a charge of conspiracy they must
produce evidence that the persons charged concerted together to commit a crime. In the later case
of Commissioner of Police v. Afari [1962] 1 G.L.R. 483, S.C. Azu Crabbe J.S.C., as he then was,
delivering the judgment of the then Supreme Court, stated at p. 485 as follows:
“In the opinion of this court, the Ghana law of conspiracy is wider in scope and in content than
the English law on the subject. It consists not only in the criminal agreement between two minds,
but also in the acting together in furtherance of a common criminal objective.”
Both authorities make criminal agreements or acting together or in concert for the purpose of
committing a crime the basis of a criminal conspiracy and in the absence of these two factors I
find count 1 not proved against any of the ten accused persons.

ALLAN WILLIAM HODGSON v THE REPUBLIC [2009] SCGLR 76

DATE-BAH (DR.) JSC (PRESIDING), ADINYIRA ((MRS) JSC, OWUSU (MS) JSC, DOTSE
JSC, ANIN YEBOAH, JSC.
FACTS: Alan William Hodgson, the Appellant herein, was arraigned before the High Court (Fast
Track Division) with five others on narcotic drug related offences under the Narcotic Drugs
(Control, Enforcement and Sanctions) Law, PNDCL 236. The Appellant was charged on two
counts of engaging in criminal conspiracy to commit an offence relating to Narcotic Drug and
possessing Narcotic Drug without lawful authority contrary to sections 56 (c) and 2 respectively
of the Narcotic Drugs (Control, Enforcement and Sanctions) Law of 1990, P. N. D. C. Law 236.
He pleaded not guilty to both counts, was tried and found guilty. He was convicted and
sentenced to 20 years I. H. L on both counts. The sentences were however to run concurrently.
Dissatisfied with both the conviction and sentence, he appealed to the Court of Appeal, which on
4th day of November 2005 dismissed the appeal against both conviction and sentence.
Dissatisfied with and aggrieved by the Judgment of the Court of Appeal, pursuant to leave
granted by that Court, the appellant appealed against that Judgment to the Supreme court for
redress on grounds inter alia according to his counsel, that the charge of conspiracy was
defective since it did not disclose the specific nature of the Crime or the particular narcotic drug
offence of which there was a criminal conspiracy to commit and that in fact there is no evidence
to support the charges of conspiracy and possession against the Appellant.
HELD PER OWUSU (MS) JSC
On the complaint of the defective nature of the first count of engaging in criminal conspiracy, we
are of the view that the trial court commendably dealt with it and the law justifies the position
taken by him. The Court of Appeal was therefore right in affirming the conclusion arrived at by
the trial court.
The statement of offence as already referred to, contained what under section 56 (c) of P. N. D.
C. Law 236, was required. The complaint that it failed to state what particular narcotic offence
that the accused persons engaged in a criminal conspiracy to commit is misplaced. As counsel
for the appellant rightly stated, there are many offences relating to narcotic drugs and under the
charge of conspiracy, all of them could not be stated. Under the general law of conspiracy, the
offence is conspiracy to commit crime: contrary to section 23(1) of the Criminal and Other
Offences Act of 1960. It is desirable for the crime in respect of which the accused persons
conspired to commit to be stated in the statement of offence but that is not necessary to make the
offence of conspiracy to commit crime complete and therefore proper under the law. For
example, where two or more persons are charged with conspiracy to commit murder and murder,
the statement of offence is complete and proper, if it only states “conspiracy to commit crime”
contrary to section 23(1) of the Act. Where the charge states: conspiracy to commit murder, then
section 23(1) is linked to section 46 of the Act which creates the offence of murder so that in that
case the offence as stated will be contrary to sections 23(1) and 46 of the Act and not 23 (1)
alone. In this case the offence is laid under section 56 (c) alone and under the offence, the
particular drug related offence is not stated. Admittedly, the particulars of the offence should
have included the specific offence relating to the narcotic drug that the accused persons engaged
in a criminal conspiracy to commit. However, what is the position of the law now? BRUCE
VRS. C. O. P and AKOWUAH VRS STATE already referred to ceased to be good law. Same
were held in the case of ANDOH & ANOTHER VRS THE REPUBLIC [1970] C.C. 42 by the
then Court of Appeal to have been given per incuriam”

JOHN DAVID LOGAN & ANOR. v THE REPUBLIC [2007-2008] SCGLR 76

S.A.B. AKUFFO (MISS) (PRESIDING), BROBBEY, ANSAH, ANINAKWAH, ADINYIRA
(MRS.), JJSC.
FACTS: The Appellants are both British subjects. On the 28th day of January, 2004, they were
charged jointly with four (4) others on two Counts: — 1. Engaging in Criminal conspiracy to
commit an offence relating to Narcotic Drug contrary to Section 56(c.) of the Narcotic Drugs
(Control, Enforcement and Sanctions) Law, P.N.D.C.L 236 and 2. Possession of Narcotic Drugs
without Lawful Authority contrary to Section 2 of the Narcotic Drugs. All the accused persons
pleaded "NOT guilty" and were remanded in custody. After a full trial all the accused persons
were convicted and sentenced to 20 (Twenty) years I.H.L each, sentences to run concurrently.
Dissatisfied with their convictions and sentences, John David Logan, Frank David Laverick and
Allan William Hodgson appealed to the Court of Appeal on many and various grounds. On 4th
November 2005, the Court of Appeal by a Majority of 2 to 1 decision dismissed the appellants'
appeal. Still not satisfied, the appellants, this time — John David Logan, and Frank David
Laverick appealed before the Supreme Court, praying that their convictions be quashed and
sentences set aside on various grounds inter alia it was not supported by the weight of evidence.
HELD PER ANINAKWAH JSC
At the close of prosecution's case, there was no evidence from which it could be inferred that the
appellants John David Logan and Frank David Laverick had involved themselves with any of the
other 4 accused persons to perform any criminal acts in pursuance of any criminal purpose in
common among them. In conspiracy charges such as the one in our instant case where there is no
direct evidence, the conspiracy therefore, as Grose J put it :— "Is a matter of inference, to be
deduced from the physical Criminal acts of the parties accused, done in pursuance of an apparent
Criminal purpose in common between them".

SECTION 5

OFFENCES AGAINST THE SAFETY OF THE STATE

GENERAL:

REPUBLIC v. YEBBI & AVALIFO [1999-2000] 2 GLR 50

Supreme Court
Ampiah, Kpegah, Adjabeng, Acquah and Akuffo JJSC.
Facts: One constable Yebbi and one corporal Avalifo were charged before a Regional Tribunal
with conspiracy to steal and stealing an amount of money belonging to the National Democratic
Congress. The jurisdiction of the court was however challenged by the accused on the ground
that Article 143(1) of the 1992 Constitution provided that “a Regional Tribunal shall have
jurisdiction to try such offences against the State and the public interest as Parliament may, by
law, prescribe”, and since the National Democratic Congress was a political party and not a state
institution, the matter was not one affecting the state or public interest. The issues raised
thereupon were referred to the Supreme Court to be determined.

Held, per Acquah JSC,

It cannot be doubted that jurisprudentially, every crime is an offence against the state. As defined
in Barons law dictionary, crime is: ‘any act which the sovereign has deemed contrary to the
public good; a wrong which the government has determined injurious to the public and hence,
prosecutable in a criminal proceeding.’ But within this broad or general sense, it cannot be
denied that some crimes are meant to protect the person of the individual; other to protect the
peace and security of the State; while others protect the environment, administration of justice,
public office and so on. Thus, in Russell on crimes, offences are divided into twelve broad areas
these cover offences against the security of the disturbance of the public peace; the due
administration of justice; public office; the person, status and reputation of the individual;
property, public or private; nuisance and kindred offences; trade; criminal conspiracy; rights and
revenue of the Crown, religion and public worship; and finally the law of Nations. Again, Act 29
treats offences under four main parts. Apart from part one which covers preliminary matters,
attempts to commit crimes, abetment and conspiracy; part two deals with offences against the
person; part three covers offences against rights of property; and part four deals with offences
against public order, health and morality.
There are therefore divisions within the broad definition of a crime. And the framers of the
Constitution, 1992 cannot be said to be unaware of these divisions. The very fact that Article
143(1) of the Constitution, 1992 talks of ‘all matters and in particular, civil and criminal matters’
clearly shows that the drafters were fully aware of the divisions within crime, and therefore
intended to confine Regional tribunals to ‘such offences against the State and public interest’.

Section 6

CRIMINAL RESPONSIBILITY OF CORPERATIONS

MOUSELLBROS. LTD v. LONDON AND NORTH WESTERN RLY CO. [1917]2KB 836
Facts: An employee of the appellants, a limited liability company whose duty was to consign
goods owned by the company using the respondent company’s railway, gave a wrong description
of the goods in order to avoid paying for the actual cost of the goods. The company’s directors
had however been ignorant of his actions. After the employee had been found to have committed
the offence, the issue was raised as to whether or not the appellant company could be held liable
for the offence of the employee.
Held: Per the language and purposes of the Railway Clauses Consolidation 1845, it was obvious
that a master was responsible for a wrongful act carried out by a servant as long as the act was
within the scope of the servant’s duty. Furthermore, a “person” as stated in Sections 98 and 99 of
the 1889 Interpretation Act included corporate bodies.

TESCO SUPERMARKETS LTD v. NATTRASS [1971] 2ALL E.R 127

House of Lords
Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Pearson, Lord Diplock
Facts: The defendant company, Tesco, advertised by means of a window poster, washing powder
for sale at a reduced price. they later ran out of the products whose prices had been reduced and
replaced those with the ordinary ones, but failed remove the poster. A customer was charged at a
higher price and thus the defendant company was charged with false advertisement. It had been
found that who was in charge of talking down the poster had failed to do so. In the defendant
company’s defence, it was stated that the company could not be held liable as they took the
necessary precautions.
Held: Tesco was not liable for the actions of the manager since he was not acting as the company
but rather for the company, and the company had indeed taken the necessary precaution by
assigning the task of taking down the poster to the branch manager.
Per Lord Reid
‘. . . Normally the board of directors, the managing director and perhaps other superior officers
of a company carry out the functions of management and speak and act as the company. Their
subordinates do not. They carry out orders from above and it can make no difference that they
are given some measure of discretion. But the board of directors may delegate some part of their
functions of management giving to their delegate full discretion to act independently of
instructions from them. I see no difficulty in holding that they have thereby put such a delegate
in their place so that within the scope of the delegation he can act as the company. It may not
always be easy to draw the line but there are cases in which the line must be drawn. Lennard’s
case [1915] AC 705 was one of them.’

UNITED STATES v. BANK OF NEW ENGLAND, N.A - 821 F.2d 844 (1st Cir. 1987)
United States Court of Appeals, First Circuit
BOWNES, SELYA (Circuit Judges) and PETTINE (Senior District Judge)
Facts: A man named McDonough made 31 separate withdrawals by use of multiple cheques
amounting to more than $10,000, all simultaneously with a single teller at the defendant bank.
The transactions were in violation of the Currency Transaction Reporting Act which required
financial institutions to report customer currency transactions which exceeded $ 10,000 within
15 days.
Held, on appeal: Although the transactions were carried out by the bank’s tellers, there was a
wilful failure on the part of the bank to file reports of the illegal transactions. The defendant bank
was thus liable.
Per Bownes J,
“The contention that the instruction did not distinguish between a pattern by McDonough and
another by the Bank is technically correct, but it ignores the rest of the charge in which the court
repeatedly informed the jury that each defendant must be judged separately. The court also
pointed out that it was the Bank that had the duty to report the transactions. To argue that the
Bank must be divorced from McDonough is to ignore reality; McDonough made the
withdrawals. The question for the jury was whether the Bank knowingly and willfully broke the
law by failing to report them…
…In addition, however, you have to look at the bank as an institution. As such, its knowledge is
the sum of the knowledge of all of the employees. That is, the bank's knowledge is the totality of
what all of the employees know within the scope of their employment. So, if Employee A knows
one facet of the currency reporting requirement, B knows another facet of it, and C a third facet
of it, the bank knows them all. So if you find that an employee within the scope of his
employment knew that CTRs had to be filed, even if multiple checks are used, the bank is
deemed to know it. The bank is also deemed to know it if each of several employees knew a part
of that requirement and the sum of what the separate employees knew amounted to knowledge
that such a requirement existed.”

REPUBLIC V. BAYFORD [1973] 2 GLR 421

High Court
Charles Crabbe J.
Facts: The defendant, managing director of Pan-African Metal Company Ltd dishonestly
received water meters as well as brass nuts which owned by the Railways and Ports Authority
and the Water and Sewerage Corporation. Counsel for the defendant argued that it was the
company which rather ought to be prosecuted.
Held, per Crabbe J
‘The relationship of the accused to the company is not one primarily of master and servant. A
company as such cannot act. It has to act through the directors, the officers of the company, the
agents of the company or its servants. This is not a case where a master has chosen to delegate
the conduct of his business to a servant. It is a case where the company cannot act for itself and
must of necessity act through its officers, agents and servants.
But more important, section 146 opens with the word “whoever.” In legislation the word
“whoever” means every person who. The word “every” implies each. Yet it embraces all. So the
word “whoever” in section 146 embraces, as the colloquial expression goes, “any Tom, Dick and
Harry” whatever may be the attributes of his personality. It marks out the company as well as the
officers of the company. And the accused cannot therefore, it would seem, rely on vicarious
liability.’

R v. I. CR. HAULAGE LTD. [1944] K.B 55

Court of Criminal Appeal
Facts: The defendant company as well as the company’s managing director were charged with
conspiracy to defraud upon the fraudulent acts of the managing director.
Held, per Stable J,
"Whether in any particular case there is evidence to go to a jury that the Criminal act of an agent,
including his state of mind, intention, knowledge or belief is the act of the company, and in cases
where the presiding judge so rules, whether the jury are satisfied that it has been so proved, must
depend on the nature of the charge, the relative position of the officer or agent and the other
relevant facts and circumstances of the case. It was because we were satisfied on the hearing of
the appeals in this case that the facts proved were amply sufficient to justify a finding that the
acts of Roberts, the managing Director, were the acts of the company and the fraud of that person
was the fraud of the company, that we upheld the conviction against the company, and, indeed,
on the appeal to this Court no argument was advanced that the facts proved would not warrant a
conviction of the company assuming that the conviction of Roberts was upheld and that the
indictment was good in law."

HL BOLTON (ENGINEERING) CO. LTD v. TJ. GRAHAM & SONS LTD [1957]1 Q.B 159
Held, per Lord Denning,
“A company may in many ways be likened to a human body. It has a brain and nerve centre
which controls what it does. It also has hands which hold the tools an act in accordance with
directions from the centre. Some of the people in the company are mere servants and agents who
are nothing more than hands to do the work and cannot be said to represent the mind or will.
Others are directors and managers who represent the directing mind and will of the company and
control what it does. The state of mind of these managers is the state of mind of the company
and is treated by law as such. So you will find that in cases where the law requires personal fault
as a condition of liability in tort, the fault of the manager will be the personal fault of the
company …So also in the criminal law, in cases where the law requires a guilty mind as a
condition of a criminal offence, the guilty mind of the directors and managers will render the
company itself guilty.”

SECTION 7

MARITIME OFFENCES
PIRACY

Section 193(1) of the Criminal offences Act, 1960 (Act 29) states that a person commits an act of
piracy as the owner or master of a ship under any of the below circumstances. If the person:
1. sails the sea without authorization from the government of a country with the object of
committing depredations on property or acts of violence against persons; or
2. commits an act of depredation on property or acts of violence against persons.
Subsection 2 of section 193 states that a person commits an act of piracy as a member of the
crew or a passenger of a ship if he:
1. conspires with any other person to rise against its master and officers or to seize the ship;
or
2. in common with any other person, engages in an act of hostility against her master and
officers.

R v ROSE & ORS (1846-48) 2 COX CC 329

Facts: The accused led his mates to mutiny against their captain while on the high
seas. They confined the captain to his cabin and took the ship back
to England.
Held: the captain had complete authority on the ship to
maintain discipline and therefore except in situations in which the
men 's lives were endangered there could be justification in
doing such an act of mutiny.
Subsection 3 also provides that a master or seaman commits an act of piracy if the master or
seaman:
a)Betrays the trust reposed in any of them, runs away with the ship or goods
belonging to the ship or yields them up voluntarily to a person contrary to duty, or
(b) conspires or combines with or attempts to corrupt a master, an officer or a seaman
to yield up or run away with a ship or goods, or
(c). makes or endeavours to make a revolt in the ship.
Subsection 4 of section 193 states that a person belonging to a ship commits an act of piracy if
that person, on meeting a ship at sea or in any port, harbour or haven, forcibly boards or enters
the ship and, though that person does not seize or carry off the ship, throws overboard or
destroys a part of the goods belonging to that ship.

PUNISHMENT OF PIRACY

Section 19(1) of Act 29 stipulates that a person who commits an act of piracy commits a
first-degree felony. The subsection 2 of the same section states that a person who. with intent to
commit or at the time of or immediately before or immediately after committing an act of piracy
in respect of a ship, assaults, with intent to murder, a person who is on board, or belonging to, the
ship or injures the person or unlawfully does an act by which the life of that person may be
endangered, commits a felony and is liable to suffer death.

HIJACKING AND ATTACK ON INTERNATIONAL COMMUNICATIONS

(Originally repealed by Act 372, schedule 3) (Inserted by Act 458,
section 5)
Section 195(1) of Act 29 states that a person who hijacks an aircraft commits a first
degree felony and liable on conviction to a term of imprisonment of not less than five years.

Its subsection 2 provides that a person commits a criminal' offence under subsection (1 ).
where that person unlawfully interferes with, damages, destroys seizes or wrongfully exercises
control of an aircraft. other than an aircraft used in military, customs or police services, or does
any other unlawful act likely to jeopardize the safety of persons or
property in, or the good order and discipline on board the aircraft.

Subsection (3) also provides as follows that a person who attacks or destroys an international
communications system, a canal or submarine cable commits a
second degree 'felony and is liable on conviction to a term of imprisonment of not less than two
years.
TAKING LIQUOR ON SHIP

Taking liquor on board State Ship

(Amended by Act 554, section 18; Schedule; affected by Act 572,
Schedule 2)
Section 311 (1) of Act 29 states that a person commits a criminal offence and is liable to
a fine not exceeding five penalty units, if that person:
(a) brings on board a ship of the Republic a spirituous or fermented liquor without the
previous consent of the officer commanding the ship, or
(b) (b) approaches or hovers about any such ship for the purpose of bringing the liquor on
board without that consent, or of giving or selling any such liquor to an officer, a seaman
or marine in
the service of the Republic without that consent, or of assisting the officer. seaman, or
marine to
improperly absent from the ship.

Subsection (2) of section 311 provides that an officer in the service of the Republic, or a warrant
or petty officer of the navy, or non-commissioned officer of marines may, with or without
seamen or persons under the officers command, search a ship or boat hovering about or
approaching, or which may have hovered about or approached, a ship of the Republic, and may
seize the liquor found on her. which shall be forfeited to the Republic.

Subsection (3) also provides thus, an officer or warrant or petty or non-commissioned officer,
or a constable. may without warrant arrest and detain a person found committing a criminal
offence under this section, and take that person before a Magistrate or a Justice to be dealt with
according to law.

USE OF FORCE FOR PRESERVING ORDER ON HOARD A VESSEL

Section 40 (1) of Act 29 as amended states that the master of a vessel. or a person acting by the
order of the master, may justify the use of force against any other person on board the vessel if:
(a) that is necessary for suppressing a mutiny or disorder on board the vessel, whether
among officers, seamen, or passengers, by which the safety of the vessel, or of a person
in the vessel or about to enter or quitting it, is likely to be endangered, or
b) the master is threatened to be subject to the commands of any other person.

Subsection (2) states that for the purposes of subsection (1), the master or the person
acting under the order of the master may kill a person who commits or abets a mutiny or
disorder. if the safety of the vessel, or the preservation of a person, cannot by any means be
otherwise secured.

ABETMENT OF MUTINY OR DESERTION, OR ASSAULT

Section 187(1) provides that a person who is not subject to military law. and who
abets the commission or a mutiny by a person subject to military law, commits a first-degree
felony.

Its subsection (2) however provides that a person who is not subject to military law. and who
abets the desertion of a person subject to military law, or the commission by that person of an
assault on a superior officer where the superior officer is discharging an official duty, commits a
misdemeanour.

ABETMENT OF INSURBODINATION BY SAILOR

Section 188 stipulates that a person who is not being subject to military law, and who abets an
act of insubordination by a person subject to military law commits a misdemeanour.

Section 8

MISCELLANEOUS OFFENCES

LETTERS, TELEGRAMS

Letter written for an illiterate person

(Amended by Act 554, section 18; Schedule affected by Act 572,
Schedule 2)
Section 312 (l) states that a person who writes a letter or petition at the request
or in the name of an illiterate person shall write on the letter or petition that person’s name and
address.

Subsection (2) thus provides that the writing of the name and address on the letter or petition
implies a statement:
(a) that the letter or petition was written on the instructions of the illiterate person, and
(b) that the letter or petition conveys neither more nor less than the meaning intended by
the illiterate, and
 (c) if it is or purports to be signed or executed by that person, that it was read over and
explained to the illiterate person who fully understood its contents before it was signed or
executed, and
(d) that the mark or signature is that of the illiterate person.
Its subsection (3) then provides that where the name and address of the writer is not written on
the letter or petition, or if the statement implied is in a material particular untrue. the writer
commits a criminal offence and is liable to a fine not exceeding twenty-five penalty units.

Subsection (4) states that for the purposes of this section "name" means the full, true, and proper
country name where a person has a country name; otherwise a person's true and proper surname
and the Christian name.

(Amended by Act 554, section 18; Schedule affected by Act 572,

Schedule 2)

SENDING FALSE TELEGRAM.

Section 313 of Act 29 states that a person who commits either of the following acts, with
intent to aggrieve or annoy any other person, is liable to a fine not exceeding fifteen penalty
units, that is to say,
(a) knowingly sends a false telegram to any person: or
(b) signs the name of any other person to a petition,
prospectus, or testimonial, knowing that there is no
authority for so doing.

R v HORNER (1911-13)22COXCC 13
Facts: The Accused sent a telegram to the editor of a newspaper under a
false name which he used without the permission of the owner.
Held: The Court held that the material question was whether he intended to
deceive the editor. It therefore came to the conclusion that the accused wanted to deceive the
editor and consequently convicted him.

ISSUE OF FALSE CHEQUES (INSERTED BY NRCD 160)

(Amended by Act 554, section 18; Schedule affected by Act 572,
Schedule 2)
Section 313A of Act 29 stipulates that a person who:
(a) without reasonable excuse, the proof of which lies on that person, issues a cheque
drawn on a bank with which that person does not have an account, or
(b) issues a cheque in respect of an account with a bank when that person does not have a
reasonable ground, the proof of which lies on that person, to believe that there are funds
 or adequate funds in the account to pay the amount specified on the cheque within the
normal course of banking business, or
(c) with intent to defraud, stops or countermands a cheque previously issued by that
person, commits a criminal offence and is liable to a fine not exceeding two hundred and
fifty penalty units or a term of imprisonment: not exceeding twelve months or to both the
fine and the imprisonment, and in the case of a subsequent criminal offence to a fine not
exceeding one thousand penalty units or to a term of imprisonment not exceeding five
years.
Subsection (2) of the same section states that a person shall not be convicted of a criminal
offence by virtue of subsection (1) (b) in respect of a cheque which is presented for payment later
than three months after the date specified on the cheque for payment.

Its subsection (3) provides that where a person is convicted of a criminal offence by virtue of
subsection (l) (c) the Court may, if satisfied that there are adequate funds in the account of that
person in respect of which the cheque in question was issued to meet the amount specified on the
cheque, order the bank in question to honour the cheque and a bank complying with the order is
not be liable to a claim in respect of that act,

Subsection (4) also states that in this section,

(a) the words "cheque" and "issue" shall have the meaning respectively assigned in
sections 72 and 97 of the Bills of Exchange Act, 1961 (Act 55).
(b) a reference to the issue of a cheque includes a reference to the issue of a cheque to the
Republic.

SMUGGLING AND OTHER EVASIONS

Section 317(1) of Act 29 stipulates that a person who
(a) imports or is concerned in importing any prohibited or restricted goods, contrary to
the prohibition or restriction, whether the goods are unloaded or not, or'
(b) unloads or is concerned in unloading prohibited goods or restricted goods
(c) exports or is concerned in exporting prohibited or restricted goods, contrary to the
prohibition or restriction, or imported contrary to the prohibition or restriction, or
(d) with intent to defraud the Republic of a duty, knowingly harbours, keeps or conceals
or knowingly permits or suffers or causes or procures to be harboured, kept or concealed
prohibited, restricted, uncustomed or excisable goods, or
(e) with intent to defraud the Republic of a duty, knowingly acquires possession of or is
knowingly concerned in carrying, removing, depositing or concealing prohibited,
restricted, uncustomed or excisable goods, or
(f) is knowingly concerned in a fraudulent evasion or attempt at evasion of any customs
or excise duties, or
 (g) exports or attempts to export cocoa contrary to the Customs, Excise and Preventive
Service (Management) Act,1993 (PNDCL 330) (which relates to the exportation of
restricted or prohibited goods), or
(h) exports or attempts to export uncustomed cocoa contrary to an order made under the
Customs, Excise and Preventive Service (Management) Act.1993 (PNDCL 330), or
(i) without lawful authority, the proof of which shall lie on that person, sells,
receives or deseals sealed cocoa knowing it to belong to the Ghana Cocoa Board
or any of its licensed buying agents or any other person, or
(ii) with intent to defraud the Ghana Cocoa Board or any of its licensed buying
agents or any other person, makes any false declaration about cocoa, commits a
misdemeanour and is liable on summary conviction to a term of imprisonment of
not less than five years and not exceeding ten years or to a fine of not less than
250 penalty units and not exceeding 5,000 penalty units or to both the fine and to
the imprisonment, and the goods in respect of which the criminal offence has been
committed shall be forfeited.
Subsection (2) provides that a person who commits an act referred to in subsection (1) is,
whether or not that person is prosecuted under that subsection, liable to a civil penalty under the
Customs. Excise and Preventive Service (Management) Law,1993 (PNDCL 330) and the civil
penalty may be enforced and recovered although a prosecution has not been brought under
subsection (1).

Its subsection (3) also provides that the civil penalty shall not be exacted where a fine imposed
under subsection (1) equals or exceeds treble the value of the goods in respect of which the
criminal offence was committed.

Subsection (4) provides thus, in this section. "prohibited or restricted goods" means
goods, the importation or exportation of which is prohibited or
restricted by law.

SMUGGLING OF GOLD, DIAMOND (INSERTED BY NRCD 53, PARAGRAPH 3)

Section 317 A (1) of Act 29 provides that although there is a law to the contrary a person who
(a) without lawful authority the proof of which lies on that person. exports or attempts to
export gold or diamond, or
(b) conceals or carries away from the Republic gold or diamond with intent to evade an
enactment relating to the export of gold or diamond. commits a criminal offence and is
liable on conviction to a sentence of death, and the gold, or diamond, in respect of which
the criminal offence was committed shall be forfeited to the Republic.
In subsection (2), it is provided that the President may, by Legislative Instrument, apply
subsection to any other minerals specified in the Instrument.
Per subsection (3), For the purposes of section 317A- "diamond" means a rough and uncut
diamond of Ghanaian origin; "gold" includes gold bullion, retorted gold, gold ore, gold
amalgam, gold alloy, precipitates containing gold, slag, concentrates, tailings and residues, and
gold dust but not the articles manufactured of gold and in reasonable quantities the proof of
which lies on the person alleging reasonableness.

SECTION 10

OFFENCES AGAINST PUBLIC WELL-BEING AND THE

COMMONWEAL

NARCOTIC OFFENCE

AMARTEY v. THE STATE [1964] GLR 256

Facts: The appellant was charged with and convicted of possessing Indian hemp prepared for
smoking contrary to the Pharmacy and Drugs Act, 1961 (Act 64), s. 47 (1). Her defence was that
the subject-matter of the charge was given to her in the form of a parcel for safe keeping by a
former boyfriend of hers on the evening preceding the search of her room and her arrest and that
it was in such a condition that until the police tore it open she did not know its contents. The
alleged former boyfriend who was the fourth witness for the prosecution denied that he gave the
parcel to her. She appealed against her conviction and sentence.
Held: At the time the appellant was charged and convicted it was no offence to be in possession
of Indian hemp unless it was proved that the said hemp was prepared for smoking or was residue
from the smoking of Indian hemp. 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.
NYAMENEBA v. THE STATE [1965] GLR 723
Facts: The appellants 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 to the police against the sect, the police investigated and
found the herbs to be Indian hemp. The sect maintained their herbs were herbs of life and not
indian hemp. The appellants were tried and convicted.
Held: In a charge of possessing Indian hemp, it is of the essence that the prosecution should
prove that the appellants had possession with knowledge.
BONSU ALIAS BENJILLO v. THE REPUBLIC [2000] SCGLR 112
Facts: The facts are that Gordon Amartey, the fourth accused, an administrative officer of the
General Post Office, Accra collected an EMS parcel addressed to one Idrissu Mohummed from
the post office. Upon collection of the parcel he took it to an office and put it in a disused fridge
and he was later arrested by the Narcotics Control Board and the Customs Excise and Preventive
Services (CEPS) officials who had mounted surveillance on him. When he was arrested, he
retrieved the parcel and led the officers to the office of the third accused, Akoto, to whom he
handed over the parcel. Akoto upon receipt of same also handed it to a stationary dealer in front
of the office and the boy at once put it in a box near him and closed it. Akoto was also arrested
and when questioned as to who owned the parcel, he led them to the second accused's shop and
handed the parcel to the second accused who took possession of it. Upon interrogation, the
second accused in turn claimed that it belonged to one Mohammed who asked him to receive it
from the third accused and to keep it until it was collected from him by the first accused, a
Nigerian. He took the officers to a hotel in Accra where he claimed the first accused was lodging
but the latter was not met. They then all returned to the second accused's store where the first and
fifth accused persons, both Nigerians, were met waiting, and the second accused handed over the
parcel to first accused. All the five accused persons were arrested and taken to the Narcotic
Board's office where the parcel was opened and was found to contain two books whose hard
covers were packed with some substance later found to be heroin. Whereupon the five persons
were charged with the three counts of the following offences: Abetment of crime, to wit unlawful
importation of narcotic drug; unlawful importation of drugs; and possessing narcotic drug. All
the five accused persons were tried together, but the first and fifth accused who had by then
absconded were tried in absentia, and they were convicted and sentenced. The three Ghanaians:
the second, third and fourth accused persons appealed against their convictions to the Court of
Appeal. In respect of the present appellant, the Court of Appeal upheld his appeal on the
Abetment charge but affirmed the conviction on count 3, i.e. unlawful possession of heroin and
dismissed his appeal on that count. The appellant further appealed on the grounds that:
The Court erred in law when it held that the fact that the appellant handled the parcel, later found
to contain a narcotic drug, to wit heroine, before handing it over to the actual owner of the said
parcel constituted "possession" and is sufficient evidence to convict the appellant of the offence
of possession of narcotic drug,
The majority of the Court of Appeal which found the appellant guilty on the charge of possessing
a narcotic drug and dismissed his appeal against conviction on that charge, erred In law in
relying on the alleged acts of suspicious conduct on the part of the appellant, to conclude that he
knew or ought to have known that the parcel in the case, ie exhibit D, contained a narcotic drug.
Held: 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. Once the necessary ingredient of "knowledge" of what he possessed had been
proved beyond reasonable doubt, there was sufficient evidence to support the conviction of the
appellant.

REPUBLIC v. MUNKAILA [1996-97] SCGLR 445

Facts: The appellant and one F (non-appellant) were convicted by the National Public Tribunal
on charges of (a) importation of narcotic drugs; and (b) possession of narcotic drugs. He apealed
to the Supreme Court stating he was never physically found in possession of the drugs. The court
however found, inter alia, on the evidence that (a) it was the appellant who had arranged for F to
smuggle the narcotic drugs into the country from Nigeria for his benefit; and (b) when two
dummy parcels given to F by the police after her arrest were handed over by her to the appellant
he had sniffed them and only dropped the parcels when the police approached the two of them.
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 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 [p.369] 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 property. Since on the evidence, the appellant employed or
asked F to bring the narcotic drugs to Ghana, he was deemed to be in possession of the drugs
under section 148(2) of Act 29 and liable accordingly. And he was equally liable for the
importation of the drugs by F, his agent over whom he had control.
LOGAN & LAVERICK v. THE REPUBLIC [2007-2008] 1 SCGLR 76
Facts: The appellants, both British subjects, were charged jointly with four others on two counts:
1. Engaging in Criminal conspiracy to commit an offence relating to Narcotic Drug. 2.
Possession of Narcotic Drugs without Lawful Authority. All the accused persons pleaded "NOT
guilty" and were remanded in custody. After a full trial all the accused persons were convicted
and sentenced to 20 (Twenty) years I.H.L each, sentences to run concurrently. Dissatisfied with
their convictions and sentences, John David Logan, Frank David Laverick and Allan William
Hodgson appealed to the Court of Appeal on many and various grounds. The Court of Appeal by
a Majority of 2 to 1 decision dismissed the appellants' appeal. Still not satisfied, the appellants,
this time — John David Logan, and Frank David Laverick appealed to the Supreme Court
praying that their convictions be quashed and sentences set aside. One ground of their appeal was
"That the Verdicts of both the trial Court and the Court of Appeal are unreasonable and not
supported by the evidence on record".
None of the 5 eye witnesses called by the prosecution gave any evidence or at all implicating any
of the two appellants John David Logan and Frank David Laverick and none of the remaining 7
witnesses gave any direct evidence or at all to incriminate any of them in either the conspiracy
charge or that of possession. The only evidence of note against the two Appellants is that the
police met them in 1st Accused's house during the raid into the house and arrested them. And the
question is whether their mere presence in the 1st Accused's house at the material time, without
any evidence implicating them justified conviction.
Held: For circumstantial evidence to support a conviction, it must be inconsistent with innocence
of the accused. It must lead to irresistible conclusion not only that the Crime charged had been
committed, but it was in fact committed by the persons charged in order to arrive at a definite
conclusion. Conviction based on circumstantial evidence that has no facts supporting it, as is
seen in the instant case, is therefore, wrong. As has already been stated the defence put up by the
Appellants was more consistent with innocence than with guilt and on the authority of R vs.
ANSERE 3WALR 385 at 387, the trial Court should have given the benefit of the doubt created
by the appellants' defence to the appellants and acquitted and discharged them. The findings in
support of the conviction are mere speculations and suspicions.
ELLIS TAMAKLOE v. THE REPUBLIC [2011] 31 GMJ 1
Facts: The applicant was convicted by the High Court, Accra of two charges of attempted
exportation and possession of a narcotic drug, namely Cannabis Sativa and sentenced to a
minimum mandatory sentence of 10 years IHL on each count to run concurrently. His appeals to
the Court of Appeal and to the Supreme Court were dismissed. The applicant applied for a
review of the Supreme Court’s ordinary decision on the grounds that; "(a) The Supreme Court
occasioned a grave miscarriage of justice in its interpretation and application of the nature and
quality of circumstantial evidence used in convicting an accused person. (b) The Supreme Court
inadvertently fell into grave error in its consideration of the requisite mental blameworthiness for
convictions under Section 2 of the Narcotic Drug (Control Enforcement and Sanctions) Law,
1990 (PNDCL 236), resulting in a grave miscarriage of justice.
Held: The anonymity of the consignor’s identity in the documentation for the purpose of the
postage of the criminal parcel is explicable only in terms of the need for concealment thereof
because of the criminal contents of the parcel in question. Therefore the presence of the Indian
hemp in the criminal parcel to the knowledge of the appellant and the 1st accused has been
proved. Therefore the possibility of any implanting of that narcotic drug in the parcel delivered
by the appellant to the 1st accused by any of other persons who have to handle the same has been
eliminated beforehand. The foregoing analysis of the facts in this case only portrays the
contrivance of the appellant and the 1st accused as "deliberate downright lying showing at once a
marvelous though debased talent for invention and a total disregard of truth and of [their] oath to
tell the truth". Consequently, on the facts of this case even if exceptional circumstances have
been established, they are not exceptional circumstances "which have resulted in a miscarriage of
justice" as required by r.54(a) of C.I. 16."
KAMIL v. THE REPUBLIC [2011] 30 GMJ 1
Facts: The appellant and five others were charged jointly with a count each of the following
offences before the High Court. Each accused pleaded not guilty to the offence but was found
guilty at the trial, convicted and sentenced to a jail term of twenty (20) years imprisonment, and
also confiscated all monies found on the accused persons as well as the house in which they were
arrested. The Court of Appeal subsequently acquitted and discharged the convicted 1st, 2nd and
3rd accused persons on counts one, but dismissed the appeal on count three and sentenced the
appellant to 15 fifteen years IHL; whereupon the 2nd accused appealed further to this court on
the grounds that the Court of Appeal erred in law in upholding the decision of the trial High
Court that the Appellant was guilty of possession of Narcotic Drug without lawful authority
contrary to section 56 of PNDCL 236, 1990., the judgment was not supported by the evidence on
record and the punishment was excessive.
Held: The evidence showed the role played by the appellant in the saga which may easily win
laurels in any annual best film award contest as recounted above (by which he first drove the
vehicle that transported the boxes from the beach with he himself carrying some of the boxes,
hiring and paying others to assist him in so carrying the boxes upstairs for hiding and hiding
them in that compartment in the wall), were acts suggestive of one fact, namely that he knew he
was handling an obnoxious substance, and as it turned out to be, cocaine. It was settled it was not
sufficient for the prosecution to prove only physical handling of the substance but equally
important was this coupled with knowledge of the nature and quality of what was possessed.
Knowledge, in this context, was akin to what was requisite for stolen goods under section 147 of
the Criminal Code, 1960, Act 29. To constitute an offence under the section was proof of the
knowledge that the property in question was obtained or appropriated by an offence and the issue
was how that was proved.

TERRORIST ACTS – Anti-Terrorism Act, 2008 (Act 762)

CYBERCRIME – Electronic Transactions Act, 2008 (Act 772)
MONEY LAUNDERING – Anti-Money Laundering Act, 2008 (Act 749)
PARTICIPATION IN AN ORGANIZED CRIMINAL GROUP – Section 200A of Act 29
RACKETEERING – Section 200B of Act 29

SECTION 11
OFFENCES AGAINST PUBLIC MORALS
The offences against public morals are created in section 273 to 284 of the Criminal and other
offences (Act 29.)
The offences of public morals include
● Allowing Persons under Sixteen to be in Brothels.
● Persons Trading in Prostitution
● Soliciting or Importuning for Immoral Purposes
● Soliciting or Importuning by Prostitute.
● Keeping a Brothel.
● Gross Indecency
● Immoral or Indecent Customs or practices in relations to bereaved Spouses, etc.
● Publication or Sale of Obscene Book, etc.
● Advertisements as to Syphilis, etc., Declared Indecent.

Allowing Persons under Sixteen to be in Brothels.

The offence of allowing persons under sixteen to be in brothels in section 273 of the Criminal
and other offences act and is formed if a child below the age of 16 is kept in a brothel. A brothel
is defined as in section 279 of Act 29 as any premises or room or set of rooms in any premises
kept for purposes of prostitution;
s. 273 Whoever, having the custody, charge or care of a child under the age of sixteen years,
allows that child to reside in or frequent a brothel shall be guilty of a misdemeanor.
Persons Trading in Prostitution
The offence of persons trading in prostitution is created in section 274 of Act 29. Section 279
defines prostitution as the offering by a person of his body commonly for acts of lewdness for
payment although there is no act or offer of an act of ordinary sexual connexion
Section 274.
“(1) Any person who—
(a) knowingly lives wholly or in part on the earnings of prostitution; or
(b) is proved to have, for the purposes of gain, exercised control, direction or influence over the
movements of a prostitute in such manner as to aid, abet or compel the prostitution with any
person or generally,
shall be guilty of a misdemeanor.”
R v THOMAS [1957] 2 All ER 342
FACTS: The defendant appealed against his conviction under the 1898 Act after he agreed with a
woman whom he knew to be a convicted prostitute that she should have the use of a room
between the hours of 9 pm and 2 am at a charge of andpound;3 per night. The learned judge
Pilcher had directed the jury: ‘if there is evidence that the accused has let a room or a flat at a
grossly inflated rent to a prostitute for the express purpose of allowing her to ply her immoral
trade, then it is for the jury to determine, on the facts of each particular case, whether the accused
is in fact knowingly living wholly or in part on the earnings of prostitution.’
Held: The direction was approved, and the appeal rejected.

(2) Any Chairman of a Tribunal or a Judge who is satisfied by evidence upon oath that there is
reason to suspect that any premises or part thereof is used for the purposes of prostitution and
that any person residing in or frequenting the premises is living wholly or in part on the earnings
of any prostitute may issue a warrant under his hand authorising a police officer to enter and
search the premises and to arrest that person.
(3) Where a person is proved to live with or to be habitually in the company of a prostitute or is
proved to have exercised control, direction or influence over the movement of a prostitute and in
each such case in such manner as to show that he is aiding, abetting or compelling the
prostitution with any other person or generally, he shall, unless he satisfies the Court to the
contrary, be deemed to be knowingly living on the earnings of prostitution.”
R v de MUNCK (1918-21) 26 COX CC 302
A matter involving a girl and her mother, who was convicted of solicitation with her daughter.
The girl in question was “virgo intact” (in other words, a virgin). The appeal was dismissed with
the Court remarking that:
HELD: “The term “common prostitute” is not limited so as to mean only one who permits acts of
lewdness with all and sundry or with such as hire her when such acts are in the nature of ordinary
sexual connection. We are of opinion that prostitution is proved if it be shewn that a woman
offered her body commonly for lewdness for payment in return.

Soliciting or Importuning for Immoral Purposes

This offence is created under section 275 of Act 29. According to section 275,
“Any person who in any public place or in sight of any public place persistently solicits or
importunes—
(a) to obtain clients for any prostitute; or
(b) for any other immoral purpose,
shall be guilty of a misdemeanor.”

Soliciting or Importuning by Prostitute.

This offence is created under section 276 of Act 29
(1) Any person who persistently solicits or importunes in any public place or in sight of any
public place for the purpose of prostitution shall be liable for a first offence to a fine not
exceeding "¢500,000" and for a second or subsequent offence shall be guilty of a misdemeanor.
(2) A person shall not be tried for an offence in this section without the consent of a superior
police officer but this shall not prevent the arrest, or the issue of a warrant for the arrest, of a
person in respect of any officer or the remanding in custody or on bad of any person charged
with an offence notwithstanding that such consent has not been obtained.
HORTON v MEAD
FACTS: H was watched by two (2) police officers on a certain night. He was observed to enter
certain public lavatories and remain there for a few minutes. While in the lavatory and on the
street, he smiled in the face of men, pursed his lips (which were artificially reddened) and
wiggled his body. At no time did he speak or touch or make an attempt to speak or touch any of
the men he saw. No person complained of H’s conduct or alleged that H had solicited them and
neither was any evidence given (outside of the police) that anyone noticed his solicitation.
HELD: The Court held that it was not necessary in order to convict H to prove that the
solicitation reached the mind of the person intended to be solicited so as to attract notice

Keeping a Brothel.
This offence of is created under section 277 of Act 29
Whoever—
(a) keeps or manages or assists in the management of a brothel; or
(b) being a tenant, lessee or occupier or person in charge of any premises, knowingly permits the
premises or any part thereof to be used as a brothel or for the purposes of habitual prostitution; or
(c) being the lessor or landlord of any premises or the agent of such lessor or landlord, whose
premises or any part thereof with the knowledge that the said premises of such person thereof is
to be used as a brothel, or is wilfully a party to the continued use of such premises or any part
thereof as a brothel,
shall be guilty of a misdemeanour.
Gross Indecency.
The offence of gross indecency is created under section 278 of Act 29
278. A person who publicly and wilfully does a grossly indecent act commits a misdemeanour.
Immoral or indecent custom or practices, bereaved spouses (Inserted by PNDCL 90, paragraph
1(b))
278A. A person who compels a bereaved spouse or relative of that spouse to undergo a custom
or practice that is immoral or grossly indecent in nature commits a misdemeanour.
Obscenity
Publication or Sale of Obscene Book, etc.
This offence is created in section 280 of Act 29
Whoever publishes or offers for sale any obscene book, writing, or representation, shall be guilty
of a misdemeanour.
Illustrations
s. 280 (a) A. publishes a book for the use of physicians or surgeons, or of persons seeking
medical or surgical information. Whatever may be the subjects with which the book deals, if they
are treated with as much decency as the subject admits, A. is not guilty of an offence against this
section.
(b) B. publishes extracts from the book mentioned in the last illustration, arranged or printed in
such a manner as to give unnecessary prominence to indecent matters. If the Court or jury think
that such publication is calculated unnecessarily and improperly to excite passion, or to corrupt
morals, B. ought to be convicted.
DPP v WHYTE & ANOR [1972] 3 All ER 12
FACTS: Respondents ran a business as booksellers. Police officers searched the premises and
found books and magazines of hard pornography. The prosecution contended that the materials
had a tendency to deprave whilst the defence contended that their customers were already
depraved. On appeal against the acquittal, court held that even those who are already corrupted
could be saved from further corruption and addiction. Therefore, it is immaterial who the readers
were, for purposes of committing the offence.
HELD
Lord Wilberforce, “The Obscene Publications Act 1959 adopted the expression ‘deprave and
corrupt’ but gave a new turn to it. Previously, though appearing in Cockburn C.J.’s formula, the
words had in fact been largely disregarded: the courts simply considered whether the publication
was obscene and the tendency to deprave and corrupt was presumed: see Crowe v. Graham
(1968) 41 A.L.J.R. 402, 409, per Windeyer J. citing Professor Glanville Williams [Criminal Law,
The General Part, 2nd ed. (1961), p.70]. But the Act of 1959 changed all this. Instead of a
presumed consequence of obscenity, a tendency to deprave and corrupt became the test of
obscenity and became what had to be proved. One consequence appears to be that the section
does not hit ‘articles’ which merely shock however many people.’
R v HICKUN & ANOR (1868) LR 3 QB 360 LC 371
Coram: Cockburn, C.J., Blackburn, Mellor, and Lush, J.J. (Queen's Bench)
Per Cockburn CJ “the test of obscenity is whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such influences, and into
whose hands a publication of this sort may fall.”

Further Offences Relating to Obscenity.

s. 281 (1) Any person who—
(a) for the purposes of or by way of trade, or for the purposes of distribution or public exhibition,
makes, produces, or has in his possession any one or more obscene writings, drawings, prints,
paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films, or any
other obscene objects; or
(b) for any of the purposes above mentioned, imports, conveys, or exports, or causes to be
imported, conveyed, or exported, any of the said obscene matters or things, or in any manner
whatsoever puts any of them into circulation; or
(c) carries on or takes part in any business, whether public or private, concerned with any of the
said obscene matters or things, or deals in any of the said matters or things in any manner
whatsoever, or distributes any of them or exhibits any of them publicly; or makes a business of
lending any of them; or
(d) advertises or makes known by any means whatsoever, with a view to assist in the said
punishable circulation or traffic, that a person is engaged in any of the above punishable acts, or
advertises or makes known how or from whom any of the said obscene matters or things can be
procured either directly or indirectly,
shall be guilty of a misdemeanour.
(2) A Chairman of a Tribunal or a Judge may, on application being made to him for the purposes
by or on behalf of the Commissioner of Police, order to be destroyed any of the obscene matters
or things mentioned in subsection (1) which he, the Chairman or Judge, is satisfied has or have
been or is or are being made, deposited, or used for any of the purposes referred to in the said
subsection.
R v BOWDEN [2000] CRIM. L.R. 381
Coram: Otton LJ, Smith and Collins JJ
FACTS: The police and prosecution could find no evidence nor history of inappropriate
behaviour towards children. There was no breach of trust. Bowden's position in the chain of
production of indecent material was as low as could be consistent with the commission of the
reproducing offence. He downloaded directed photographs, occasionally stored, and printed out
photographs. Bowden had been convicted at the Crown Court (by jury) in Cambridge on 12
counts of making indecent photography of a child contrary to section 1(1)(a) of the Protection of
Children Act 1978 before it was amended by the Criminal Justice and Public Order Act 1994.
HELD: In dismissing the appeal, the court stated that "make” bore its natural meaning which
included downloading because the downloading constituted a pseudo-photograph. Also,
downloading from the internet in effect meant making a new copy of the original material.
(b) for any of the purposes mentioned in paragraphs (a) imports, conveys, or exports, or causes to
be imported, conveyed, or exported, any of those obscene matters or things, or puts any of them
into circulation;
Per Otton LJ :
Article 8 of the ECHR provides for a qualified right to respect for private and family life, home
and correspondence. This right may be legitimately interfered with where necessary “for the
protection of health or morals or for the protection of the rights and freedoms of others”.
Accordingly, we have come to the conclusion that despite the fact that he made the photographs
and the pseudo-photoraphs for his own use, his conduct is clearly caught by the Act. The judge’s
ruling was correct, the appellant correctly changed his pleas to guilty on Counts 1-12, the
convictions must stand and we dismiss the appeal against conviction. On Sentence, Mr Kadri
submitted on behalf of the appellant that an immediate custodial sentence was wrong in principle
in the circumstances of this case. There was no evidence of risk to the public. Although he was a
school teacher there was a total absence of any evidence or history of inappropriate behavior
towards children. There was no breach of trust. Mr Bowden’s position in the chain of production
of indecent material was as low as could be consistent with the commission of the offences.
There was no further dissemination of the material. Above all he had no previous convictions off
any sort. This was not a case where a custodial disposal was the only appropriate course. We are
satisfied that the sentences of imprisonment were wrong in principle and manifestly excessive.
We therefore imposed a conditional discharge for 12 months in respect of each count in the
indictment. To that extent the appeal is allowed.
R v MARTIN SECKER & WARBURG LTD [1954] 1 WLR 1138
FACTS: The accused persons, a publishing company, published a novel called "The
Philanderers" which contained indecent material. They were prosecuted for putting into
circulation, indecent materials. Court held that legal notions of obscenity should change as
societal attitudes to sex become more liberal, as in the present day.
Per Stable, J. in instructing the jury
"Your task is to decide whether you think that the tendency of the book is to deprave those whose
minds today are open to such immoral influences and into whose hands the book may fall this
year or last year when it was published in this country or next year, or the year after that".

Indecent Inscriptions.
The offence of indecent inscriptions is created in section 282 of Act 29
s. 282 Whoever affixes to or inscribes on any place or thing so as to be visible from any public
place, or affixes to or inscribes on any public urinal, or delivers to any person in a public place,
or exhibits to public view from any building, any picture or printed or written matter of an
indecent or obscene nature, shall be liable to a fine not exceeding ¢500,000.
Persons Sending Others to do the Acts Punishable under Section 282.
This offence is created in section 283 of Act 29
s. 283 Whoever gives or delivers to any other person any picture or printed or written matter
mentioned in section 282 with the intent that it be affixed, inscribed, delivered, or exhibited as
therein mentioned, shall be liable to a fine not exceeding ¢500,000.
Advertisements as to Syphilis, etc., Declared Indecent.
This offence is created in section 284 of Act 29
284. (1) Any advertisement relating to venereal disease, nervous debility, or other complaint or
infirmity arising from or relating to sexual intercourse and any advertisement claiming for any
preparation aphrodisiac properties, shall be deemed to be of an indecent or obscene nature.
(2) This section does not apply to any advertisement relating to venereal disease published by or
with the authority of the Minister responsible for Health.

SECTION 12

SPECIAL OFFENCES
These offences were inserted in by The Criminal Code (Amendment) Act 458.
Special Offences include
1. Causing Loss damage and injury to property.
2. Importation of Explosives
3. Using Public Office for profit.

Causing Loss Damage and injury to property.

This offence deals primarily with wilfully causing loss to the state. The mens rea includes
wilfully performing the act and the actus reus involves the loss, damage or Injury to a property of
a public body or agency of State commits an offence. The offence of causing loss, damage and
injury to property is created in section 179A of the Criminal Offences Act.
Definition
Under section 179A(1) the offence of causing loss, damage and injury to property can be
defined as a person who by a wilful act or omission causes damage or injury to the property of
any public body or any agency of the State commits an offence
S.179A (1) Any person who by a wilful act or omission causes loss, damage or injury to the
property of any public body or any agency of the State commits an offence.
A person will be guilty of the offence of Causing loss or damage to a property under section 179
if in the course of business or transaction, he intentionally causes damage whether economic or
otherwise. This is stated under section 179A(2)
S. 179A (2) Any person who in the course of any transaction or business with a public body or
any agency of the State intentionally causes damage or loss whether economic or otherwise to
the body or agency commits an offence.
The mens rea component of the crime is willfully or maliciously or fraudulently committing an
action or an omission. Which incurs financial loss to the state or endangers the security of the
state. This is seen under section179A(3)
(3) Any person through whose wilful, malicious or fraudulent action or omission—
(a) the State incurs a financial loss; or
(b) the security of the State is endangered, commits an offence.
A public body includes the state, government, public board or corporation, public institution and
any company the state has a proprietory interest.
S. 179A (4) In this section "public body" includes the State, Government of Ghana, public board
or corporation, public institution and any company or other body in which the State or a public
corporation or other statutory body has a proprietory interest.
THE REPUBLIC v TSATSU TSIKATA [2003-2004] 2 SCGLR 1068
W.A. ATUGUBA, J.S.C. (PRESIDING), S.A.B. AKUFFO, G.T. WOOD, S.A. BROBBEY,
PROF. T.M. OCRAN, JJSC
FACTS: Tsatsu Tsikata (appellant) was the CEO of the Ghana National Petroleum Company
(GNPC), which was set up by the Ghana Petroleum Corporation Law, 1983 (PNDCL 64). In
March 1991, the appellant entered into a contract with Caisse Française (CF) to act as a
guarantor for Valley Farms Co Ltd. (VFC), a limited liability company producing high quality
cocoa in Ghana, for a loan granted by CF. In 1993, the Criminal Code (Amendment) Act (Act
458) was passed to amend the Criminal Code, 1960 (Act 29). Section 179 (3)(a) of Act 29 as
amended by Act 458, provided that, “any person through whose wilful, malicious or fraudulent
action or omission, a) the State incurs a financial loss commits an offence.” In 1996, VFC
defaulted in its loan payments and GNPC was called upon to make good its guarantee. GNPC
made the payments required. The payments made on behalf of VFC were considered to be a
financial loss to the State and to have been made on the appellant’s authority. The appellant was
prosecuted in the Fast Track High Court, on three counts of causing financial loss to the State in
breach of section 179A(3)(a) of Act 29 as amended by Act 458 and a fourth count of
intentionally misapplying public property in breach of section 1(2) of the Public Property
Protection Decree, 1977 (SMCD 140). After the prosecution presented the State’s case, the
appellant’s lawyer made a submission of no case which was dismissed by the FTHC without any
explanation. The appellant appealed to the CA in respect of the dismissal of the submission of no
case and was overruled again. The appellant then appealed the CA’s judgment in the SC. The
court in a 4-1 majority upheld the decision of the CA and dismissed the appeal.
HELD ATUGUBA Dissenting: The SC did not find anything in the CA’s judgment to prove that
the CA upheld the HC’s dismissal of the submission of no case by the appellant’s lawyer based
on PNDCL 78, a law that was repealed – therefore the action was not in breach of article 19(5).
PER PROFESSOR MODIBO OCRAN
1.“Justice Amonoo-Monney was merely making a reference to the historical fact that the essence
of the crime of causing financial loss to the state was not new to our criminal law. Nowhere in
the judgment of the Court of Appeal did the Court endorse retroactive crimes. We will therefore
give no further consideration to Appellant’s counsel's submissions on the accepted presumption
against retroactivity embedded in the 1992 Constitution.”
2.The court took the position that although the agreement was signed before the Act 29, the
payments were made afterwards – and therefore fell within the scope of the act. “Thus, there is
no intrinsic inseparability between the Guarantee Agreement of 1991 and its execution through
default payments in 1996. Still, it is the duty of the prosecution to show why, in a particular case,
the execution of a presumably valid contract by a state corporation would amount to a criminal
action”
3.Financial loss to the state was defined as “a net depletion” of the State’s finances as a result a
transaction or series of transactions. The Justices determined that it was up to the prosecution to
prove that the payments led to financial loss to the Sate and up to the jury or judge to determine
if the execution of the guarantee agreement was unlawful under section 179A(3)(a) of Act 29 as
amended by Act 458.
“Without pretending to assume the fine skills of a financial analyst or accountant, we think that
when, in respect of a transaction or a related set of transactions, there is a net depletion of the
coffers of the state through a deliberate, unauthorized, and criminally reckless, or otherwise
illegal act of a public official or other agent of the state, there has been a financial loss to the
state. However, in this connection, it needs to be emphasized that it is the duty of the prosecution
to lead evidence aimed at establishing the presence of such a state of affairs as background to
the making of the controversial payments or corporate investments by officials of GNPC.”
4.The word “wilful” even in its statutory context applied to the appellants actions.
“Thus, whether one adopts Lord Diplock's two-tier meaning, or the essentially one-meaning
approach of the other Law Lords, the act of a person accused under section 179A of the Ghana
Criminal Code 1960 of causing financial loss to the state could still be wilful as long as the act
itself was done intentionally or deliberately, even if the accused did not foresee or intend or
desire the financial loss to the state. In Diplock's analysis, it would be wilful because the alleged
act was a positive act or set of acts; and from the perspective of Lords Fraser and Scarman, it
would be a wilful act simply because it was allegedly done deliberately or with no external
pressure. Based on the foregoing analysis, we conclude that even when used in a criminal
statute, the word 'wilful' could, as a matter of law, cover cases in which a public officer
voluntarily engages in a course of conduct which in fact injures the state financially, whether
with an evil or malicious intent to injure the state, or simply actuated by a reckless and persistent
disregard for laid down corporate and statutory rules, or as a result of sheer obstinacy, or as
part of a bureaucratic culture of financial unaccountability. But it is also true that "wilful" may
be used to describe an act which is done not only deliberately or intentionally, but in
circumstances where the doer must also have intended or at least foreseen the probable
consequence of their non-action. We are of the view that the first interpretation of "wilful" puts
more teeth into the effort to reduce corporate lawlessness and lessen the potential incidents of
financial loss to the state”.
THE REPUBLIC v IBRAHIM ADAM & ORS Suit No. FT/MISC 2/2000 decided on
28'" April, 2003 (Unreported).
Facts: The two accused persons were former ministers of state and the three accused senior
public servants. The republic of Ghana lost sums of money in repaying a loan on account of
being a sovereign guarantee for a loan which was taken in securing a private company. The
sovereign guarantee had been given without due diligence on the investor and the safety of the
states were not taken into consideration. They were accused of causing financial loss to the state.
Held: the offence of causing financial loss to the state is occasion by a willful and reckeless act
to cause financial loss to the state. The loss might occur because the act done yielded no result at
all and therefore produced a total loss, or else because a benefit produced was at a significantly
higher cost than was dictated by the circumstances. Further, that a civil servant acting in the
normal course of his or her duties was bound to implement government policy without question
and therefore performance of such duties would not make such civil servant a party to any loss
that was occasioned by the policy. However, where a civil servant participated in an
undertaking in a role completely different from that envisaged by the rules of the Civil Service,
liability for causing financial loss would arise if acts done in the new role were done without due
regard for the financial interests of the State.( ref. annotated criminal code, act 29)

Importing Explosives
The crime of importing explosives is created under section 179B of the criminal offences act
Under section 179B ,
(1) Any person who without lawful authority (proof of which shall be on him) imports into
Ghana any explosives, firearms or ammunition commits an offence.
(2) For the purpose of this section explosives, firearms or ammunition shall have the same
meaning as provided under section 192 of this Code.

Using Public Office for Profit.

This offence is created in section 179C of Act 29. A person who in a public office corruptly or
dishonestly abuses the office for his personal benefit or a person benefit or a person who is not in
a public office but collaborates with someone in public office for the person in a public office to
dishonestly or corruptly use his public office for a personal benefit commit an offence of using
public office for profit.
Any person who—
(a) while holding a public office corruptly or dishonestly abuses the office for private profit or
benefit; or
(b) not being a holder or a public office acts or is found to have acted in collaboration with a
person holding public office for the latter to corruptly or dishonestly abuse the office for private
profit or benefit, commits an offence.
THE REPUBLIC v EUGENE BAFFOE BONNIE & 4 ORS, SUIT NO. CR/904/2017
The case emanated from a criminal trial of the five accused person who are facing various
charges ranging from conspiracy to causing financial loss to the State contrary to sections 23(1)
and 179(A), willfully causing financial loss to the State contrary to section 179(A), conspiracy to
steal contrary to sections 23(1) and 124, Stealing contrary to section 124, using public office for
profit contrary to section 179(c) all of the Criminal and Other Offences Act, 1960, (Act 29).
Other charges include contravention of the Procurement Act contrary to sections 92(1) and
134(1)(a) of the Public Procurement Act, 2003, (Act 663), money laundering contrary to section
1(1)(c) of the Anti-Money Laundering Act, 2007, (Act 749) and intentionally misapplying public
funds contrary to section 1(2) of the Public Property Protection Act, 1977, (SMCD 140). A
question relating to the interpretation of article 19 (2) (e) and (g) of the 1992 Constitution, was
raised in the HC and was accordingly referred by the trial judge to the SC pursuant to Article
130(2) of the 1992 Constitution for a true and proper interpretation. The first, second and third
accused witness fourth accused witness were at the time public officers and the fifth accused who
was not a public officer acted in collaboration with the accused persons.

Held
Eric Kyei Baffour. Esq. (Justice of the court of Appeal)
“From the charges A1, A2 and A4 should have been public officers at the time for which the
Republic claim that they used the office for private gain and that A5 not being a public officer
acted in collaboration with them for A1, A2 and A4 to corrupt or dishonestly abuse that office
for private gain. Section 3 of the Criminal Offences Act, Act 29 states as follows:
The expression “public officer” shall be construed by reference to the definition of “public
office” in article 295 of the Constitution, and for the purposes of this Act, includes a person
holding an office by election or appointment under an enactment or under powers conferred by
an enactment”.
Article 295 of the Constitution, on the other hand defines public office as:
"public office" includes an office the emoluments attached to which are paid directly from the
consolidated Fund or directly out of moneys provided by Parliament and an office in a public
corporation established entirely out of public funds or moneys provided by Parliament”.
The second and fourth accused were acquitted of the offence of using public office for private
gain because they may not have benefited. The fifth accused was also discharged.”
Penalty
A person who commits any of these Special offences is liable for a fine of not less than 5 million
or imprisonment
S.179D A person convicted of an offence under any of the offences specified in this Chapter is
liable on conviction to a fine of not less than ¢5 million or imprisonment not exceeding
SECTION 13

OFFENCES RELATING TO PUBLIC OFFICERS AND PUBLIC

ELETIONS
Section 239—Corruption, etc. of and by Public officer, or Juror.
(1) Every public officer or juror who commits corruption, or wilful oppression, or
extortion, in respect of the duties of his office, shall be guilty of a misdemeanour.
(2) Whoever corrupts any person in respect of any duties as a public officer or juror
shall be guilty of a misdemeanour.
Section 240—Explanation as to Corruption by Public Officer, etc.
A public officer, juror, or voter is guilty of corruption in respect of the duties of his
office or vote, if he directly or indirectly agrees or offers to permit his conduct as
such officer, juror, or voter to be influenced by the gift, promise, or prospect of any
valuable consideration to be received by him, or by any other person, from any
person whomsoever.

Section 241—Explanation as to Corruption of Public Officer, etc.

A person is guilty of corrupting a public officer, juror, or voter in respect of the duties
of his office or in respect of his vote, if he endeavours directly or indirectly to
influence the conduct of such public officer, juror, or voter in respect of the duties of
his office or in respect of his vote, by the gift, promise, or prospect of any valuable
consideration to be received by such public officer, juror, or voter, or by other
person, from any person whomsoever.

APPIAH V THE REPUBLIC

FACTS: The applicant was the special prosecutor of the special tribunal set up under the Armed
Forces Revolutionary Council (Special Tribunal and Other Matters) Decree, 1979 (AFRCD 23).
He obtained under the colour of his office the sums of £1,000 and £10,000 from fugitives whose
cases were pending before the tribunal as consideration for favourable consideration of their
petitions. The appellant had created the impression that he was part of the tribunal or had the
capacity to influence events therein and wrote the draft of the favourable ruling the tribunal gave.
Subsequently he was convicted by the circuit court for extortion contrary to section 239(11) of
the Criminal Code, 1960 (Act 29). His appeal against both his conviction and sentence was
allowed by the High Court. An appeal by the Republic from that decision was however allowed
by the Court of Appeal which restored the judgment of the circuit court. The appellant further
appealed to the Supreme Court.
HELD: The appeal was dismissed on the ground, inter alia, that the prosecution had successfully
proved all the ingredients of the offence of extortion.
REASONING; The offence of extortion as defined under section 247 of the Criminal Code,
1960 (Act 29) was in the alternative, "demand" or "obtain." Accordingly, a posture of an ability
to deliver under colour of office whether positively or impliedly might amount to a constructive
representation if the other limb of the offence, namely obtaining was proved. Consequently,
provided there was representation, demand or obtaining, the offence was committed even when
the payment secured no returns.
BOATENG V THE REPUBLIC (1968) GLR 1027-2031
FACTS: The appellant, a health overseer, was alleged to have taken action against a woman for
allowing her goats to stray on the streets but refrained from prosecuting her because he accepted
one goat from the woman. He was charged with, and convicted for, accepting a bribe after doing
an act, contrary to section 244 of Act 29. He appealed against the conviction on the ground that
section 244 did not create an offence but only explained the offence of corruption by a public
officer.
HELD: The appellant should have been charged under section 240 and not section 244 of Act 29
because section 244 did not create any offence. It was no more than a rule of evidence creating a
presumption which was rebuttable. Mere acceptance of a gift by a public officer after doing an
act was not an offence. It might be immoral but it was not an offence known to the criminal law.
To constitute the criminal offence of corruption, the public officer must have agreed or offered to
permit his conduct to be influenced. It was immaterial whether the conduct was later influenced.
The most important thing was the initial agreement. If there was no evidence of agreement, then
no offence was committed.
COMMISSIONER OF POLICE v. SAWYER, WEST AFRICAN COURT OF APPEAL, 5 JUNE
1953, UNREPORTED
FACTS: Mr Sawyer, the petitioner, who was a policeman of the City of San Antonio, became
involved in an altercation with three persons arrested for drunkenness whom he was transporting
to the city jail. There was conflict in the testimony as to petitioner's conduct, and the trial court in
its findings credited in the main the testimony given by the petitioner. After it was alleged that he
struck one of the arrested men with his pistol and hit the other two with his fists, that he also
cursed bystanders who protested his treatment of the prisoners, and may have addressed them
with vile names. The Captain at the Police Station then took his gun and badge from him. He
then filed a suit against the respondents, the City of San Antonio, its Mayor and four
Commissioners and its Chief of Police, to compel them to reinstate him as a policeman and to
recover salary of $200.00 per month from the time when he was relieved of his duties.
HELD: The generally accepted rule is that the resignation of a public officer must be tendered to
the person having the authority to appoint a successor. The resignation signed by petitioner and
delivered to the Chief of Police did not become effective. It was withdrawn or retracted before it
was accepted by the official who was authorized to accept it.

Section 251—Deceiving a Public Officer

Whoever with intent to defeat, obstruct, or pervert the course of justice, or the due execution of
the law, or evade the requirements of the law or to defraud or injure a person, or to obtain or
assist in or facilitate the obtaining of any passport, instrument, concession, appointment,
permission or other privilege or advantage, endeavours to deceive or to overreach any public
officer acting in the execution of any public office or duty, by personation, or by any false
instrument, document, seal, signature, or by any false statement, declaration, or assurance,
whether written or verbal or by any written or verbal statement, declaration, or assurance which
the person making such statement, declaration, or assurance did not have good reason to believe
to be true, is guilty of misdemeanour.
ASAGBA vs THE STATE
Facts: The appellant was charged with deceit of a public officer contrary to section 251 of the
Criminal Code, 1960. With intent to injure one Augustine Awotwi, a building inspector of
GNCC, Nsawam, the appellant endeavored to deceived the Commissioner of Police, Accra and
other members of the Ghana Police Service by making a false written statement that the said
Awotwi had obtained the sum of EG10 from Madam Meria Adjoa and due to this, had refrained
from prosecuting her for the erection of an unauthorized building at Adoagyiri. It was alleged
that the appellant's statement was false and he knew perfectly well.
Issue: Whether the evidence of the appellant in respect of his written statement and the illegal
receipt of the EG10 was to be believed.
Held: On a charge of deceit of a public officer, it is not sufficient for the prosecution to prove
that the person who made the statement did not have good reason to believe the statement to be
true. The allegations of the appellant cannot be said to be without foundation since the fourth
prosecution knew very well that the rooms purchased by the third prosecution were made of
swish and he never the third prosecution who permitted her to put up the cement block verandah.
Section 256—Corruption Intimidation, and Personation in Respect of Election.
Whoever is guilty of corruption, intimidation, or personation in respect of a public election, shall
be guilty of misdemeanour, and shall, during seven years from the date of his conviction, be
incapable of voting at any public election and of holding the public office in respect of which the
election was held, or any public office of the same nature.

Section 257—Definition of Intimidation.

A person is guilty of intimidation at a public election if he endeavours to influence
the conduct of any voter in respect of such election by a threat of any evil
consequence to be caused to him or to any other person, on account of his conduct
as such voter.

Section 259—Explanation as to an Election.

No person shall be relieved from any liability to punishment under this Chapter by reason of any
irregularly or informality in the proceedings at or preliminary or subsequent to an election.
DPP vs MILLS
FACTS: The appellant, driving a motor vehicle, having consumed excess alcohol contrary to
section 5(1)(a) of the Road Traffic Act, 1988 was followed by a Police Constable. The Police
Constable finally stopped the driver at Sanbrook Road where he asked him to provide a roadside
breathtest. The test proved to be positive and the appellant was arrested and taken to
Skelmersdale Police Station. At the station, his blood sample was taken for testing.
HELD: Since there was no proof or evidence that could be referenced to prove that the sample
taken by the Police Constable was the exact same sample tested even though the labels were
different, the court cannot infer that the tested sample is that if the appellant. The appeal was
allowed.

Section 237—Falsely Pretending to be Public Officer or Juror, etc.

Whoever pretends to be or acts as a public officer, juror, or to be a messenger of or
to hold any authority from the President, or a Minister or a Court, not being lawfully
authorised to act as such officer or juror, or messenger, or not holding such
authority, and in or under colour of such assumed character does or attempts to do,
or procures or attempts to procure, any person to do or abstain from doing any act
whatsoever is guilty of a misdemeanour, unless he shows either—
(a) that he so pretended or acted under a mistake of law or of fact; or
(b) in the case of a person acting as a public officer, that he so acted in good faith
for the public benefit.

Section 14

OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE

Section 210—Perjury.
(1) Whoever commits perjury shall be guilty of second degree felony.
(2) Whoever commits perjury with intent to cause the conviction of any person for
any crime punishable with death, shall be guilty of first degree felony.
Section 211—Definition of Perjury.
A person is guilty of perjury, if in any written or verbal statement made or verified by him upon
oath before any Court, or public officer, or before the President or any Committee thereof he
states anything which he knows to be false in a material particular, or which he has not reason

Section 218—Causing Person to Refrain from Giving Evidence on Criminal Trial.

Whoever with intent to defeat, obstruct, or pervert the course of justice at the trial of any person
for any crime, in any manner causes any person to refrain from giving evidence at such trial, is
guilty of a misdemeanour.

SAMUEL AGOE MILLS ROBERTSON VRS. THE REPUBLIC

Facts
The Appellant engaged himself in drug trafficking and was transporting 380 slabs of cocaine
from the Western Region to Accra. After his arrest, he was charged, with five (5) others, on two
counts of conspiracy to commit crime contrary to section 23 (1) of the criminal offences Act of
1960 and possessing Narcotic Drug without lawful authority contrary to section 2 (1) of the
Narcotic Drugs Act of 1990. At the High Court, he was sentenced to fifteen (15) years
imprisonment with hard labour (I. H. L.) on each count of conspiracy and unlawful possession of
narcotic drugs. On appeal to the Court of Appeal, the Court of Appeal allowed the appeal, by
reducing the sentence and set aside the sentence of fifteen (15) years I. H. L. and substituting a
sentence of 12 years I. H. L. Still dissatisfied, he further appeals to the Supreme Court for a
further reduction of his sentence.
Issue
Whether or not the sentence of 12 years that the Court of Appeal substituted for the 15 years the
High Court imposed should be further reduced?
Holding
The Supreme Court, on a 3-2 majority decision, set aside the 12 years sentence imposed by the
Court of Appeal and restored the sentence of 15 years imposed by the High Court.
Reasons
The Majority was of the opinion that 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. The court had to examine the record, the gravity of the offence
and arrive at a conclusion whether the sentence passed by the trial court should be interfered
with.
The Court exercised its discretion under section 30 (a) (ii) of the Court Act, 1993, (Act 459) to
vary the sentence of 12 years IHL to 15 years IHL and stated that by adequately considering all
the mitigating factors in the case, the previous sentence for an offence of this magnitude
(possessing 380 slabs of cocaine, a narcotic drug) was not excessive and wrong in principle,
hence, be restored.

ELIKPLIM AGBEMAVA AND OTHERS VRS. THE ATTORNEY-GENERAL

Facts
On the 29th of June, 2016 three people namely, Godwin Ako Gunn, Alistair Nelson and Salifu
Maase alias Mugabe, uttered certain statements on a talk show broadcast on an Accra radio
station known as Montie FM, 100.1 FM, which were believed to be contemptuous of the
Supreme Court. The radio discussions concerned an ongoing case before this court. On
appearing before the Court on a summons issued by the court, the Court convicted the three
named contemnors on their own guilty pleas and on the 27th of July, 2016 sentenced them to
four months imprisonment each and fines of GH₵ 10,000 each.
Subsequent to the conviction and sentence, the convicts on the 1st August 2016 wrote a petition
to His Excellency, The President of the Republic of Ghana, urging him to exercise the
prerogative of mercy under article 72 of the 1992 Constitution in their favour. This petition was
forwarded to the Council of State for its advice. By a letter dated 19th August 2016, the Council
of State advised that the President could exercise the Prerogative of Mercy. By way of a circular
issued by the then Minister of Communications, the President announced that he had exercised
the prerogative of mercy in favour of the three convicted persons, by remitting part of the jail
term. The decision of the President provoked the current suits before this Court.
The plaintiffs contend that the remission of sentence that was granted to Godwin Ako Gunn,
Alistair Nelson and Salifu Maase alias Mugabe (together referred to as the “Convicts”) who were
sentenced to a term of imprisonment by this Court based on its jurisdiction under article 126(2)
of the 1992 Constitution for contempt is contrary to articles 72 and 296(c) of the 1992
Constitution and a violation of the principle of judicial independence and is therefore void and of
no legal effect.

Issues
1. Whether or not the words “convicted of an offence” in article 72 of the Constitution 1992
includes committal and conviction for the offence of contempt of court by the Superior Court
under article 126(2) of the Constitution.
2. Whether or not the prerogative of mercy of the President of the Republic under article 72 of
the Constitution, 1992, extends to and covers a power to grant pardon to persons, who have been
convicted for contempt of court, by the Superior Courts under article 126(2) of the Constitution,
1992.
3. Whether or not, if the President’s prerogative of mercy under article 72 of the Constitution,
1992, extends to, and covers, a power to grant pardon to persons so committed and convicted,
such power or prerogative of mercy is discretionary in terms of article 296 of the Constitution,
1992 and ought to be exercised in accordance with article 296(a) & (b) thereof.
4. Whether or not the exercise of the discretionary power of the President in favour of the
contemnors was arbitrary and capricious.
5. Whether or not the grant of remission of the sentence of the contemnors by the President
constitutes an unjustified interference with the judiciary and an affront to the Constitution.
6. Whether or not the power of the President of the Republic of Ghana to exercise prerogative of
mercy is limited to convictions arising from criminal offence.
7. Whether or not the grant of remission of sentence by the President to the contemnors
constitutes an abuse of the President’s discretion.
Holding (5-2 majority decision)
1. Yes, the words “convicted of an offence” in article 72 of the Constitution 1992 includes
committal and conviction for the offence of contempt of court by the Superior Court under article
126(2) of the Constitution.
2. Yes, the prerogative of mercy extends to persons convicted of criminal contempt.
3. No, the President’s prerogative of mercy under article 72 of the Constitution, 1992, which
extends to, and covers, a power to grant pardon to persons so committed and convicted, such
power or prerogative of mercy is not discretionary in terms of article 296 of the Constitution,
1992 and ought to be exercised in accordance with article 296(a) & (b) thereof.
4. No, the exercise of the discretionary power of the President in favour of the contemnors was
not arbitrary and capricious.
5. No, the grant of remission of the sentence of the contemnors by the President does not
constitute an unjustified interference with the judiciary and an affront to the Constitution.
6. No, the power of the President of the Republic of Ghana to exercise prerogative of mercy is
not limited to convictions arising from criminal offence.
7. No, the grant of remission of sentence by the President to the contemnors constitutes an abuse
of the President’s discretion
Reasons
1. Article 72(1) was read with Article 19(11), 19 (12) and 19(21). Under article 19(11), 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. Under Article 19(12), clause (11) of this article shall not prevent a
Superior Court from punishing a person for contempt of itself notwithstanding that the act or
omission constituting the contempt is not defined in a written law and the penalty is not so
prescribed.
Thus, even if contempt of court is not defined in a statute and no specific penalty is prescribed
for it, the court is nonetheless empowered to commit and punish a person for contempt. It
follows that contempt of court is an exception to the provision in article 19(11). Clause 21 of
article 19 buttresses the position contained in clause 11 that an offence exists only where there is
a particular law which has said so. The proviso in clause 12 thus extends to cover clause 21 as
well. The legal situation then is that for there to be a conviction a person must have been charged
with a criminal offence which has been defined by law and the penalty therefor prescribed by the
law, the only exception being a charge of contempt of court. In that respect contempt of court is
sui generis, a peculiar type of offence.
Also, Act 29 has criminalised contempt and prescribed a penalty for it in section 224. So, our
jurisprudence has established criminal contempt as a misdemeanour, meaning it is a criminal
offence. Criminal contempt is an offence and attracts criminal penalties as a misdemeanour,
whether it is charged under article 126(2) of the Constitution or section 224 of Act 29; the
consequences are the same. Thus, under our laws, a charge of criminal contempt of court may lie
by virtue of articles 126(2) and 19(12) of the Constitution or under section 224 of Act 29.
Whereas the court can initiate contempt proceedings ‘suo motu’ under article 126(2) of the
Constitution, the Attorney-General or somebody else at his direction may do so under section
224 of Act 29.
However, for a contempt of court to come within the provisions of article 72, it must be criminal
contempt for which a person has been convicted by a court of competent jurisdiction. The
punishment for civil contempt is remedial in favour of a complainant, in vindication of private
rights. On the other hand, the punishment for criminal contempt is punitive, and in the interest of
the public in protection of the authority and dignity of the court
2. Since contempt is an offence within the meaning of article 72 of the 1992 Constitution;
therefore, the prerogative of mercy extends to persons convicted of criminal contempt.
The power of pardon may thus be exercised even before sentence is imposed by the court, once a
conviction has been pronounced. It is only in matters of remission of sentence that will depend
on the imposition of a sentence. Thus, under article 72, once it is established that a person has
been convicted of an offence, the prerogative of mercy becomes exercisable by the President,
acting in consultation with the Council of State. Imposition of sentence is not a requirement of
clause (1) of article 72 before the power may be exercised to pardon a person convicted.
However, if a sentence has been imposed in addition to the conviction, the other provisions of
article 72 come into play. A sentence completes the process of adjudication only, but not for the
purposes of exercising the power to grant mercy.
3. Having regard to the wide executive powers conferred on the President by the Constitution, it
would be literally impossible for him to function if he were to go to Parliament with an
instrument to guide him in taking discretionary decisions. Thus the Constitution has in-built
mechanisms to guide most Presidential actions, whether in consultation with, or on the advice of
or with the approval of, etc. and once the President acts in accordance with the particular
constitutional mandate, as in the instance, he is not required to comply with article 296(c).
Article 296(c) applies particularly to persons to whom the Constitution has ascribed some duties
involving the use of discretion, without prescribing how those duties are to be performed or
supervised. The practice has been that the advisory bodies to the President must have rules and
regulations to guide their functions, like the Judicial Council, Police Council, and the Council of
State etc.
The proper exercise of discretion should be marked by fairness and candour and thus any
conduct in the exercise of such discretion which may be described as being capricious, borne out
of resentment, or bias by personal dislike, or falls short of due process, is not the proper exercise
of discretional power and constitutes abuse of same. The rational for article 296 is to check the
abuse of discretionary power. Thus in situations where the Constitution itself provides the
safeguards like the instant case (Article 72), The use of the said power must be viewed in the
light of the safeguards provided and where it is found that the safeguards were complied with,
then that power would be deemed to have been properly utilised in terms of the said provision,
unless there is clear evidence that the advice to the President was tainted in some way, as stated
above.
4. The safeguard under Article 72 is the consultation with the Council of State which the
President did and seems to have been satisfied per Exhibit “AG 3’’ and since there is no evidence
that the Council of State was in any way unlawfully influenced in its opinion to the President,
which would undermine the exercise of the discretion, the President did not act arbitrarily.
5. The concept of separation of powers underpins The Constitution, employing checks and
balances to sustain it and ensure a healthy and stable balance of power, lest any branch of
government should become too powerful and tend to become dictatorial. The clear intent and
purpose is to ensure that these organs of state do not enjoy absolute power or authority without
any check on possible abuse, since they are manned by human beings who are subject to the
frailties of life. The judiciary is entirely free in taking judicial decisions and that is where its
independence is absolutely guaranteed by the Constitution. So the Parliament’s authority in
passing legislation is equally guaranteed by the Constitution, and so too is the executive decision
making power guaranteed. But after the act or decision, the Constitution says these could be
tampered with in appropriate cases, and it is the court's duty to respect the limitation on the
power enjoyed by each organ, including the judiciary. It is thus a total misconception and
misapplication of the doctrine of judicial independence to suggest that the judiciary is an island
unto itself in the scheme of governance under the concept of separation of powers.
6. As long as the executive president is given the discretionary power to pardon, he must have
the right and privilege to exercise it untrammeled by any narrow and restrictive construction of
the constitutional grant. Unlike the US Constitution, which excludes impeachment from the
power to grant pardon, article 72 of our Constitution makes no reservation.
7. The President is not bound by these provisions of any Act when he exercises the power
conferred on him under article 72 of the Constitution .The discretionary power in article 72 when
used in accordance with its provisions, such exercise of the power of mercy will not be
questioned by the Courts. Hence, so far as the exercise of the power under article 72 does not
infringe any provisions in the Constitution, the Courts will not interfere. The President’s power
under article 72 of the Constitution extends to and covers convictions for criminal contempt.
Consequently, the remission of sentence granted to the convicts cannot be questioned by this
court as it followed due process.

AMANIAMPONG V REPUBLIC (J3/10/2013)[2014] GHASC 163 (28 MAY 2014)

Facts: The Appellant was charged together with two others on two counts of conspiracy to
commit robbery and robbery contrary to Sections 23 (1) and 149 and of the criminal and other
offences Act, 1960, Act 29 as amended by Act 646 of 2003. They were arraigned before the
High Court, Sekondi for trial. They pleaded not guilty. The prosecution therefore led evidence in
their quest to prove the charges against them.
At the end of the trial all three of them were found guilty on both counts and convicted. The 1st
accused was sentenced to life imprisonment. The 2nd and 3rd accused persons were sentenced to
70 years each on both counts. Dissatisfied with both conviction and sentence, the Appellant
appealed to the Court of Appeal which dismissed the appeal against conviction but allowed the
appeal against sentence and reduced the sentence of 70 years I. H. L. to 30 years I. H. L. Still
dissatisfied, he has appealed to this court on the grounds that the Court of Appeal did not
adequately consider the appeal against conviction and that the sentence was harsh and excessive.

Issues
1. Whether or not the sentence was harsh and excessive.
2. Whether or not the Court of Appeal did not adequately consider the appeal against the
conviction.
Holdings: 1. The Supreme Court, dismissed the appeal against the sentence. Punishment is
justifiable as a deterrent not only to the criminal himself, but also, and even more importantly, to
those who may have similar criminal propensity. A way must be found to protect society from
the activities of these criminals and this way is confinement for a considerable length of time.
2. The 30 years I. H. L. imposed on the appellant by the Court of Appeal was not harsh and
excessive. The Court of Appeal had dismissed his appeal against conviction on both counts but
admittedly assigned no reasons for so doing. From the record, there is sufficient evidence to
support the conviction. Failure to assign reasons has therefore not occasioned any miscarriage of
Justice as this court upholds the convictions.

MARTIN KPEBU V. ATTORNEY GENERAL

FACTS
The plaintiff brought an action in the Supreme Court for a declaration that Section 96(7) of the
Criminal and Other Offences Act 1960, (Act 30) as amended by the Criminal Procedure Code
(Amendment ) Act 2006, (Act 633) contravenes Article 15(2) and 19(2)(c) of the 1992
constitution and is therefore null, void and of no effect.
ISSUES
1. Whether or not Section 96(7) of Act 30 as amended by Act 633 is inconsistent with
Articles 14(1), 15(2) and 19(2)(c) of the constitution
2. Whether or not the court authoritatively decided the constitutional validity of section
96(7) of Act 30 viz a viz Articles 14(1) and 19(2)(c) of the constitution
HOLDINGS 1. Section 96(7) of Act 30 is contrary to the letter and spirit of Article 19(2) (c) and
14(3) (4) and for that reason it is null, void and of no effect in so far as prohibition of the right to
apply for the court’s consideration for bail presumes the guilt and not the innocence of a suspect
or accused as the case may be
REASONING
Any legislation outside the constitution that takes away or purports to take away either expressly
or by necessary implication the right of an accused to be considered for bail would have
pre-judged or presumed him guilty even before the court has said so which would be clearly
contrary to the constitutional provision which guarantees his innocence until otherwise declared
by a court of competent jurisdiction.

2. Section 96(7) of Act 30 conflicts with the guaranteed constitutional right to personal liberty
per Article 14(1) and the presumed right of innocence under Article 19(2) (c).
- Section 19(7) of Act 30 does not eliminate the judicial process in matters of personal liberty
and it’s also erroneous to say access to the courts for bail in those cases is also ousted.
REASONING
Article 14(3) and 4 of the constitution vest discretionary power in the courts to grant or deny bail
to persons charged with a criminal offence under the clear obligation that the power shall be
exercised rationally not arbitrarily or capriciously but judicially in accordance with procedural
due process.

REPUBLIC v. BAFFOE-BONNIE AND OTHERS

FACTS: The case emanated from a criminal trial of the five accused person who are facing
various charges ranging from conspiracy to causing financial loss to the State contrary to
sections 23(1) and 179(A), willfully causing financial loss to the State contrary to section
179(A), conspiracy to steal contrary to sections 23(1) and 124, Stealing contrary to section 124,
using public office for profit contrary to section 179(c) all of the Criminal and Other Offences
Act, 1960, (Act 29). Other charges include contravention of the Procurement Act contrary to
sections 92(1) and 134(1)(a) of the Public Procurement Act, 2003, (Act 663), money laundering
contrary to section 1(1)(c) of the Anti-Money Laundering Act, 2007, (Act 749) and intentionally
misapplying public funds contrary to section 1(2) of the Public Property Protection Act, 1977,
(SMCD 140). The amount involved and for which the Republic claim to have lost is Four
Million United States Dollars (USD$4,000.000.00). All the accused persons have pleaded not
guilty. A rendition of the facts in support of the seventeen charges against the accused persons
are irrelevant for purposes of the case stated for the interpretation of article19 (2) (e) and (g) of
the 1992 Constitution.
ISSUES:
1. Whether on a true and proper interpretation and/or construction of article 19(2) (e) and (g)
an accused person in a summary trial conducted in accordance with Part III of the Criminal and
Other Offences Procedure Act, Act 30, was entitled to comprehensive pre-trial disclosures as the
accused persons have argued.
2. If the answer is yes, then at what point should prosecution make the disclosures available to
the accused person in view of the fact that summary trial may commence within 48 hours upon
arrest and charges being proffered against the accused.
3. Whether on a true and proper interpretation and construction of article 19(2)(e) (g) of the
Constitution, an accused in a summary trial was entitled to full disclosure of documents in the
possession of prosecution that would not even be tendered by the prosecution as exhibits before a
trial court
HOLDINGS:
1.The court held that it is inherent in the right to a fair trial, of an accused person’s right to be
given adequate time and facilities for the preparation of his defence as well as facilities to
examine in person or by his lawyer, the witnesses called by the prosecution before the court and
to obtain the attendance and carry out the examination of witnesses on the same condition as
those applicable to witnesses called by the prosecution.
2. The obligation to disclose is however a continuing one and disclosure must be completed
when additional information is received in the course of the trial. In all such situations the
prosecution has the discretion to determine the time and manner of disclosure.
3. The accused person in a summary trial is entitled to be given or have access to copies of
witnesses’ statements, copies of documents and exhibits in the possession of the prosecution,
including materials they do not intend to tender before a trial court.
REASONING:
1.An accused person must be given and afforded opportunities and means so that the prosecution
does not gain an unfair advantage; so that the accused is not impeded in any manner and does not
suffer disadvantage in preparing his defence, confronting his accusers and arming himself in
defence, so that no miscarriage of justice is occasioned. Non-disclosure is a potent source of
injustice as it is often difficult to say whether an undisclosed item of evidence might have shifted
the balance or opened up a new line of defence.
2. The constitutional right of the accused person to adduce evidence in his defence cannot be
exercised properly unless disclosure of material includes all the evidence which may assist the
accused even if the prosecution does not propose to adduce it. The accused person may discover
potential witnesses from such disclosure.
SECTIONS 15

DEFENCES
PROVOCATION
53. Provocation
The following matters may amount to extreme provocation to one person to cause the death of
another person, namely,
(a) an unlawful assault and battery committed on the accused person by the other person, in an
unlawful fight or otherwise, which is of a kind, in respect of its violence or by reason of
accompanying words, gestures, or other circumstances of insult or aggravation, that is likely to
deprive a person of ordinary character and in the circumstances in which the accused person was,
of the power of self-control;
(b) the assumption by the other person, at the commencement of an unlawful fight, of an attitude
manifesting an intention of instantly attacking the accused person with deadly or dangerous
means or in a deadly manner;
(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 battery committed in the view 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.

54. Exclusion of benefit of provocation

(1) Despite proof on behalf of the accused person of a matter of extreme provocation, the
criminal offence shall not be reduced to manslaughter if it appears
(a) that the accused person was not in fact deprived of the power of self-control by the
provocation; or
(b) that the accused person acted wholly or partly from a previous intention to cause death or
harm, or to engage in an unlawful fight, whether or not the accused person would have acted on
that purpose at the time or in the manner in which the accused person did act but for the
provocation; or
(c) that, after provocation was given, and before the accused did the act which caused the harm, a
time elapsed or circumstances occurred that an ordinary person might have recovered
self-control; or
(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.
(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 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 fight that might amount to extreme provocation.

SABBAH v THE REPUBLIC

The accused cut PW2 on his arm and the deceased on his neck when the deceased and PW2 went
to inspect some land that the accused claimed belonged to his family. The accused case was that
the deceased attacked hum with a cutlass first and cut his wrist and left knee, after which he
became furious and began brandishing his own cutlass which resulted in the harm to PW2 and
the deceased. The accused was convicted for murder, a conviction confirmed by the Court of
Appeal. He appealed to the Supreme Court on the sole ground that the trial judge misdirected the
jury by non-direction on the defences of provocation and justifiable harm and the dismissal by
the Court of the same defences constituted a miscarriage of justice.
HELD: The appellant’s defence raised the alternative defences of provocation and self-defence.
It was therefore the judge’s duty to direct the jury that if they believed that the deceased attacked
the appellant and injured him on his wrist and knee then they should consider the issue of
provocation or self defence. If however the jury did not believe the appellant or do not find the
defence reasonable probable then they should be directed that the defence put up ought to fail.
However, the misdirection occasioned no miscarriage of justice since the defences raised by the
accused failed. Therefore, the appeal failed.
Per Adinyira JSC, on provocation: “What we have to consider here is whether the attack by the
deceased and the other two on the appellant were such as to deprive him of the power of self
control…Granted that the appellant was provoked by the unwarranted attack on him by the
deceased and the two others we are however of the view that the manner in which he reacted by
inflicting several wounds on the deceased to the extent of decapitation was too cruel in a manner
that no ordinary person in the circumstances would have acted. This is a situation where the
benefit of provocation can be excluded under Section 54 (1) (d).”
BOAKYE v THE REPUBLIC [1999-2000] I GLR 740 – 760
The prosecution’s case was that there had been a fight between the deceased and the appellant
following a quarrel between the latter and a group which included the deceased. After the two
had been separated and the deceased was walking away, the appellant went to his house nearby,
fetched a knife, and came back to stab the deceased in the chest, resulting in his death. The
appellant’s case was that the group had attacked him with sticks until he fell and hit his head on a
metal object, which he then picked up and threw at the deceased. Post-mortem report showed
that the death had been caused by a deep, punctured, penetrating, lacerated wound which had
gone to the heart of the deceased. The trial court held that the prosecution’s version of events was
what actually happened. The appellant was therefore convicted of murder, and the conviction
was upheld by the Court of Appeal. The appellant appealed to the Supreme Court on the
grounds, inter alia, that there had not been enough evidence.
HELD, dismissing the appeal: where a trial court which had seen and heard witnesses decided on
questions of fact raised by the evidence or the credibility of witnesses, an appellate court should
not interfere with that finding or decision unless there was good reason for doing so. The
appellant’s action per the evidence did not constitute self-defence nor provocation under section
52 of Act 29.
Per Bamford-Addo JSC: “On the facts, it is my view that both defences of provocation and self
-defence were rightly rejected by the trial tribunal as well as the Court of Appeal. At the time the
appellant struck the deceased with the knife which he had gone home to fetch, his life was not in
extreme danger necessitating killing the deceased. The prosecution evidence was the evidence
which was believed by the court. The deceased was not armed and was rather running away
when he was attacked and stabbed, which goes testify that the appellant intended to cause death
or to cause grievous bodily harm to the deceased.”

ODURO v. THE STATE [1967] GLR 36-46

The accused was allegedly slapped and abused by his wife during an altercation. The accused
then stabbed her to death with a knife. He was convicted for murder and appealed on the grounds
that (1) the trial judge wrongly directed the jury on the law of provocation in that his direction
only dealt with the slap on the face and it did not deal with the accompanying abuse and (2) even
if the accused's story did not convince the jury as to its truth, they might nevertheless consider
whether it was reasonably probable in the particular circumstances.
HELD: Abusive or insulting words alone could never constitute sufficient provocation under
section 53 of Act 29 to reduce murder to manslaughter.
R. v. KONKOMBA & ANOR. [1959] GLR 318-320
The deceased (Basare) had killed Konkomba’s son while the two of them were hunting in the
bush. Basare returned to the village and reported to the chief what he had done. The chief then
ordered him to report to the police. Upon his return, Basare was attacked a cutlass by Konkomba,
who struck him on the neck. The cutlass was seized from Konkomba by a bystander. The
accused still struck Basare with a stick, and his brother joined in the assault, at which point the
death occurred. In his statement to the police, Konkomba said “When I saw Kwabena Basare I
grew annoyed. I took my cutlass and gave him a cut on the neck and he fell to the ground. A boy
by name Waja snatched the cutlass from me who later gave it to a Police Constable present. As
my cutlass has been taken from me, I seized a piece of stick from the ground and repeated two
strokes on Basare's head whilst he was lying on the ground.” Both men were charged with and
convicted of murder. They appealed on the ground that the trial judge erred in not considering
the effect of provocation.
HELD: The killing could not be reduced to manslaughter on the ground of provocation because
the assault relied on had not been committed in the view or presence of the parent.

INSANITY
27. 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; or
(b) 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.
McNAGHTEN’S CASE
The accused, McNaghten, was charged with murder. He pleaded not guilty. Witnesses were
called on his behalf to prove that at the time of committing the act, he was not in a sound state of
mind. There was also medical evidence to the fact that that persons of otherwise sound mind
might be affected by morbid delusions, that the accused was in that condition, that a person
labouring under a morbid delusion might have a moral perception of right and wrong, but that in
the case of the accused it was a delusion which carried him away beyond the power of his own
control and left him no such perception, that he was not capable of exercising any control over
acts which had connection with his delusion, and that it was of the nature of the disease with
which the prisoner was affected to go on gradually until it had reached a climax, when it burst
forth with irresistible intensity so that he would all at once break out into the most extravagant
and violent paroxysms. Tindal CJ directed the jury thus: The question to be determined is
whether at the time the act in question was committed the prisoner had or had not the use of his
understanding so as to know that he was doing a wrong or wicked act. If the jurors should be of
opinion that the prisoner was not sensible, at the time he committed it, that he was violating the
laws both of God and man, then he would be entitled to a verdict in his favour, but if, on the
contrary, they were of opinion that when he committed the act he was in a sound state of mind,
then their verdict must be against him."
The jury found him not guilty on the ground of insanity.
The House of Lords later put a series of hypothetical cases on insanity before a panel of judges.
The questions were:
(i) What is the law respecting alleged crimes committed by persons afflicted with
insane delusion in respect of one or more particular subjects or persons, as, for
instance, where at the time of the commission of the alleged crime the accused knew
he was acting contrary to law, but did the act complained of with a view, under the
influence of insane delusion, of redressing or revenging some supposed grievance or
injury, or of producing some supposed public benefit?
(ii) What are the proper questions to be submitted to the jury when a person alleged
to be afflicted with insane delusion respecting one or more particular subjects or
persons is charged with the commission of a crime (murder, for example) and
insanity is set up as a defence?
(iii) In what terms ought the question to be left to the jury as to the prisoner's state of
mind at the time when the act was committed?
(iv) If a person under an insane delusion as to existing facts commits an offence in
consequence thereof, is he thereby excused?
(v) Can a medical man conversant with the disease of insanity, who never saw the
prisoner previously to the trial, but who was present during the whole trial and the
examination of all the witnesses, be asked his opinion as to the state of the prisoner's
mind at the time of the commission of the alleged crime, or his opinion whether the
prisoner was conscious at the time of doing the act, that he was acting contrary to
law, or whether he was labouring under any and what delusion at the time?
The Panel, per Tindal CJ, answered as follows:
For (i): Even if the accused did the act complained of under the influence of an insane delusion
with a view, of redressing or revenging some supposed grievance or injury, or of producing some
public benefit, he is nevertheless punishable according to the nature of the crime committed, if
he knew at the time of committing such crime that he was acting contrary to law.
The second and third questions were answered together:
“The jurors ought to be told in all cases that every man is to be presumed to be sane and to
possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved
to their satisfaction, and that to establish a defence on the ground of insanity it must be clearly
proved that, at the time of the committing of the act the party accused was labouring under such
a defect of reason, from disease of the mind, as not to know the nature and quality of the act he
was doing, or, if he did know it, that he did not know he was doing what was wrong… the usual
course, therefore, has been to leave the question to the jury whether the party accused had a
sufficient degree of reason to know that he was doing an act that was wrong, and this course we
think is correct, accompanied with such observations and explanations as the circumstances of
each particular case may require.”
For (iv): “the answer must, of course, depend on the nature of the delusion, but, making the same
assumption as we did before, namely, that he labours under such partial delusion only, and is not
in other respects insane, we think be must be considered in the same situation as to responsibility
as if the facts with respect to which the delusion exists were real.”
For (v): “In answer thereto, we state to your Lordships, that we think the medical man, under the
circumstances supposed, cannot in strictness be asked his opinion in the terms above stated,
because each of those questions involves the determination of the truth of the facts deposed to,
which it is for the jury to decide, and the questions are not mere questions upon a matter of
science, in which case such evidence is admissible.”

R. v. MOSHIE [1959] GLR 343-347

One morning, Moshie, for no reason, killed his landlord and wounded a woman. He then caught
a boy aged six and began cutting him up with a cutlass. One of the village men confronted him,
upon which Moshie rushed on him with a cutlass. The man ran to his room, and came out with
his gun. He pointed the gun at Moshie and threatened to shoot him, hoping that the threat would
make Moshie stop. Moshie however kept advancing towards him. The man then shot and
disabled Moshie, at which point the cutlass was seized from him.
In his statement to the police after being charged with murder, Moshie admitted killing some
person or persons, and giving reasons for it. He said that two days before the incident his
landlord had come from Kumasi with a number of people, to take him to the Asantehene to be
killed. One of the men had fired a gun at him but had missed him, so he went into his room and
slept. On the day in question a Linguist and a large number of people came on a lorry; he was
alone in his room at the time. The Linguist, his landlord, and those other people dragged him out
of the room, and were forcing him into the vehicle to be taken to the Asantehene to be killed.
Some of the men, including his landlord, had guns pointed at him, and were threatening to shoot
him if he would not get on the vehicle. He concluded by saying that, in that grave moment, he
snatched his cutlass and slashed his way through his assailants in order to save his life. He told
the same story on oath at his trial in greater detail. He was convicted for murder and he appealed.
HELD: 1. Though the fantastic "facts" in the accused's story existed only in his own mind, so
that he was living in a world of his own, the accused believed that what he was saying was the
truth, and it was the duty of the Judge to direct himself and the assessors on the accused's state of
mind.
2. On a proper interpretation of sec. 52(2) of the Criminal Code (similar to section 27(2) of Act
29), that section is concerned principally with whether or not the insanity is of such a nature as to
render punishment pointless; it is not concerned with the form the delusion takes.
The verdict of guilty of murder could not stand. The appellant was found to be guilty of the act
but insane at the time he did the act. He was therefore ordered that he be detained in custody at a
mental hospital.

WILLIAMS v. THE REPUBLIC [1984-86] 1 GLR 565-581

The appellant (M) and the deceased (L) were married. M decided to divorce L and ignored peals
to the contrary. One night, L's bedroom was seen on fire and dense smoke was pouring out of it
and M was heard screaming for assistance. A neighbour who was the first on the scene met M
already outside but saw L’s badly burnt and charred body in the room. He hurriedly drove him to
the hospital where he was given prompt attention by doctor friends M had called before they got
there. L later died from the burns. Before then M had in a police statement admitted setting fire
to L with what she thought was kerosene. Consequently, she was charged with murder. At the
committal proceedings she disclosed in her statutory statement that during the previous year she
had on two occasions discovered that L was having sexual affairs with her daughter N. On each
of those occasions L apologised and promised not to do so again. When she discovered the third
time that he was still having affair with N she decided to divorce him. She alleged that on the
night of the fire when she refused to be dissuaded from her decision to divorce L, he threatened
to shoot her with his service gun and commit suicide. He also made a number of disparaging
remarks on the chastity of her daughter N. She claimed that she was eventually cowed into bed
by L and that she was woken up from sleep by the intense heat from the fire and had then
screamed for help. At the trial V in his testimony for the prosecution said M had collected all her
belongings from their bedroom. Other prosecution witnesses testified, inter alia, that M had on
the day of the fire bought a gallon of petrol and kerosene. M in her defence denied setting L on
fire. She also denied that she had taken her belongings from their bedroom. She explained that
she had bought the petrol to use in dissolving some substance she was collecting from the
harbour. She also pleaded insanity and automatism and gave evidence of the history of her type
of mental trouble. However, the medical witness who had attended her did not support her plea
of insanity. In his summing up to the jury, the trial judge after explaining the ingredients of the
offence of murder directed the jury, inter alia, that M had not led evidence on (a) the things she
said she was taking delivery of from the harbour; and (b) what she did with the petrol, if she did
not use it in burning L. He further directed them that from the police statement M intentionally
caused harm to L and that if they found her guilty the verdict should be one for murder. The jury
found M guilty of murder and she was thus convicted. On appeal, counsel for M contended,
inter alia, that the trial judge had misdirected the jury on (i) the defence of insanity; (ii) the
requirement of intent to cause death; and (iii) provocation.
HELD: Appeal allowed; verdict of guilty was properly for manslaughter.
(On the issue of misdirection on the defence of insanity): The essence of a defence of insanity
was that at the material time of the act complained of the accused was suffering from such
disease of the mind that she could not be said to have known the nature and consequence of
the act committed by her. That state of mind, apart from evidence of history, was often
discovered by the contemporaneous acts and behaviour of the accused, i.e. conduct of the
accused immediately before or at the time or immediately thereafter of the acts complained
of. In the instant case, there was no evidence of any abnormal behaviour by the appellant from
the witnesses who saw and spoke with her just after the alarm. Her conduct in raising the alarm
and in ringing up doctor friends to help and her statement to the police appeared perfectly normal
and intelligible. The medical officer who examined her at the request of the court also negatived
any claim to any disease of the mind by the appellant. The trial judge therefore adequately put
the defence to the jury and rightly instructed them on the burden of proof.

JUSTIFIABLE USE OF FORCE

32. General limits of justifiable force or harm
Although there may exist a matter of justification for its use, force cannot be justified as having
been used in pursuance of that matter
(a) which is in excess of the limits prescribed in the section of this Chapter relating to that matter,
or
(b) which extends beyond the amount and kind of force reasonably necessary for the purpose for
which force is permitted to be used.
YEBOAH v. THE STATE [1967] GLR 512 – 523
The appellant reported to the odikro of his village that he had killed YM. In his statement to the
police, he claimed that he had killed YM in self-defence. In his version of the facts (he was the
only witness to the crime), he stated that YM had provoked him and hit him first. Both of them
then picked up cutlasses, and the appellant challenged the deceased to attack first. The deceased
dropped his cutlass and the appellant slashed his neck and continued slashing and the deceased
became weak. The appellant was charged with and convicted of murder. On appeal, his ground
was that the trial judge’s directions on self-defence were inadequate.
HELD: Even though the trial judge’s direction was incomplete, it occasioned no substantial
miscarriage of justice because from the facts, a person who stood his grounds and challenged his
opponent to a deadly fight could not reasonably be held to be a person who believed that his life
was in imminent danger.
Per Azu Crabbe JA: “…a plea of self-defence would not avail an accused person under our law,
unless he could lead some evidence to show (1) that the harm which he caused to the deceased,
resulting in the latter's death, was reasonably necessary; and (2) that he caused the harm in
circumstances of extreme necessity, that is, that short of killing the deceased, there was no other
means of saving his own life. It is sufficient if the accused believed on reasonable grounds,
though mistaken in his belief, that his life was in danger.”

NARTEY v. THE REPUBLIC [1982-83] GLR 788-796

The appellant was challenged by the deceased who was holding a stick and a cutlass. The
deceased attacked first with the stick but the appellant managed to seize it and throw it away. The
deceased then attacked with the cutlass and the appellant’s hand and head received blows from
the cutlass while he tried to seize the cutlass too. Realizing the increased aggressiveness of the
deceased, the appellant went for his own cutlass and inflicted wounds on the deceased who then
fell. The appellant then left the scene to report to the police but he fell unconscious at home
because of his wounds. He later heard that his opponent had died. At his trial, the judge in
summing up stated “In the defences I have dealt with, i.e. provocation, self-defence and defence
of property and possession, where an accused person is justified in the use of force or harm then
he shall not be found guilty and must as of right be acquitted and discharged. But I must stress
that . . . the force used must be reasonable and must be within limits . . ." The appellant was
convicted for murder and he appealed.
HELD: On the facts, an obligation was placed on the trial judge to direct the jury on the
justifiable defence of self-defence as a complete answer to the charge of murder and also the
question of provocation as would in law be sufficient to reduce the crime of murder to that of
manslaughter. A consideration of the question of provocation also enjoined the trial judge as a
matter of law, to have drawn a clear distinction between the offences of murder and
manslaughter.
PRINCIPLE: Self-defence is a complete answer to the charge of murder.

ASANTE v. THE REPUBLIC [1972] 2 GLR 177-197

A policeman invited the appellant to the police station without telling him why he was wanted.
The appellant refused to go. The policeman then seized the ignition key of the appellant’s lorry,
preventing him from driving away. In attempting to get back his keys, the appellant knocked the
policeman down and kicked him. He was subsequently tried and convicted of assault. He
appealed, arguing inter alia that the arrest was unlawful, and therefore he was justified in
repelling the unlawful assault on him with corresponding force in self-defence.
HELD: From the facts, the appellant was entitled to compel the police officer to let him have
access to his vehicle to enable him to free himself from the continuing assault by imprisonment
of the policeman.

BROBBEY AND OTHERS v. THE REPUBLIC [1982-83] GLR 608-616

The appellants, two policemen, had accused the complainant of selling cigarettes above the
controlled price and asked him to accompany them to the police station. According to the
complainant (C), when he refused, the appellants and three others began beating him up, tearing
his knickers and pants and stealing some money he had on him. He also lost his pair of knickers.
When his wife rushed to his rescue, she was bitten by B. Most of the witnesses for the
prosecution corroborated C's evidence that the policemen beat him up but none corroborated his
claim that his money was stolen. However, the sixth prosecution witness further testified that
when C refused to accompany the police to the police station and resisted arrest, he, C tried
forcibly to retrieve the packet of cigarettes from B's pocket where B had his identification card.
He also denied that the policemen beat C and removed his knickers. Evidence given by the
police officer on duty at the station when C was brought there confirmed that B's identification
card was brought there torn. The appellants were convicted of causing harm and stealing. They
appealed on the grounds that the trial magistrate (i) misdirected himself on the law relating to the
powers of arrest of the police and (ii) did not relate the degree of resistance by C and his wife to
the force used on them by the police.
PRINCIPLE: An essential element for the constitution of the crimes of causing harm contrary to
section 69 and causing damage contrary to section 172 of Act 29 is that the harm or damage must
not only be intentional but also unlawful. Mere harm or damage without more is insufficient.
But as provided by the Criminal Procedure Code, 1960 (Act 30), s. 36 it is a complete defence to
a charge of assault or causing harm that the defendant was lawfully arresting the complainant
either on a criminal or civil process provided he used no more force than was reasonably
necessary.
HELD: On the evidence the complainant not only knew of the crime he had committed but the
appellants also informed him of the offence. When, therefore, the complainant resisted arrest,
the appellants were entitled to use reasonable force to arrest him. Since the trial magistrate did
not relate the degree of resistance by the complainant and his wife to the force used on them, it
could not be inferred from the evidence that the force used to overcome their unwarranted
resistance was excessive.
ABEKA AND ANOTHER v. THE REPUBLIC [1980] GLR 438-446 – Reasonable Force
Necessary for Defence of Property or Possession
In a trial for charges of assault, the prosecution established that one X., the alleged owner of a
farm for some twenty years, was on his farm together with his wife, brothers and some 30
helpers harvesting corn when they were confronted by the appellants and some others. The
appellants accused X. of stealing the corn but he denied the accusation and claimed that the corn
belonged to him. The appellants then insisted that X. should accompany them to their town,
Fianko, but he refused. Consequently, they tied him up, beat him up and dragged him to Fianko
from where they took him and some of his helpers who had also been beaten up to the police
station. In their defence, A, one of the appellants, claimed that the farm in dispute belonged to
him and that since some people had been stealing from it, he, together with the other appellants,
went to inspect the farm on the day in question and met the complainants harvesting his corn and
that he had to use force to get “the thief", i.e. X. to the police station because X. refused to go
with them and he feared that X. might escape. A. therefore claimed that the force used was
lawful and reasonable and that injuries sustained by the complainants arose out of their struggle
to free themselves. The appellants were convicted and sentenced to twelve months'
imprisonment with hard labour each. They appealed on the grounds, inter alia, the sentence was
harsh, having regard to the circumstances including the nature of the offence and character of the
offender.
HELD: On the evidence, the appellants were not justified in applying the force they used.
Per Ampiah J: “Assuming that the appellants were in actual possession, they would be entitled to
use reasonable force to remove a person who, being in or on the land has been lawfully required
to depart therefrom but has refused to depart…If the request was lawful, as the appellants
reasonably believed, then they would have been entitled to use reasonable force to remove them
from the farm either to be taken to the police station or to the town…Since the appellants had
with them other persons, would it not have been reasonable to send some of these men to inform
the police while the rest guarded the farm and the complainants who had refused to leave the
farm? From the evidence it is quite clear that the first complainant as well as the alleged vendor
Adututu were well known to the appellants; the first complainant had been on the land for over
twenty years; it does not take just a day to cultivate corn on land and have it harvested. The
steps taken by the appellants could therefore not be said to be reasonable in the circumstances”

INTOXICATION
28. Criminal liability of an intoxicated person
(1) Except as provided in this section, intoxication is not a defence to a criminal charge.
(2) 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, or
(b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the
time of the act.
(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.
(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.
(5) For the purposes of this section “intoxication” includes a state produced by narcotics or drugs

KETSIAWAH v. THE STATE [1965] GLR 483-489

The appellant and his former wife (the deceased) went to a farm together. A search party later
discovered the dead body of the deceased in the bush covered with palm leaves. The appellant
was arrested and in his statement to the police, he stated that on that day, je had drunk a bottle of
akpeteshie unkown to the deceased. He further stated that he had made known to her his
intention to reconcile, but she refused and hurled abuse at him. Hurt by the abuse and while
drunk, he cut her with his cutlass. At the trial, he closing sentence of the judge's summing-up
notes said: "If you believe that accused was so drunk that he did not know what he was doing or
that he was highly provoked then say he is guilty of manslaughter. If you are not sure, or if you
think his explanation might reasonably be true, then return a verdict of guilty of manslaughter."
He was convicted of murder and appealed.
HELD (on intoxication): For the defence of intoxication to succeed, it must in the first place be
proved that the person pleading it was so intoxicated at the time he did the act complained of that
either he did not know that the act he was doing was wrong or he did not know what he was
doing. Where the intoxication is self-induced, the person pleading it has the onus of proving that
the intoxication had made him insane temporarily or otherwise at the time of the act. The
standard of proof applicable to this onus was one of reasonable probability and this standard was
not discharged by bare evidence of the consumption of liquor. On the evidence, the accused had
not discharged this onus.
2. The judge misdirected the jury by failing to explain that if they did believe that the accused
was so drunk that he did not know what he was doing, then he was insane in law and they should
return a verdict of guilty but insane. However, no miscarriage of justice occurred, since the jury
did not believe so and returned a verdict of murder.
DPP V BEARD [1920] AC 479
The accused raped a thirteen-year-old girl. In raping the girl, he placed his hand over her mouth
and his thumb on her throat, causing the girl to die by suffocation. He was tried for murder, and
his sole defence was intoxication. He was convicted, and appealed.
HELD: There was no evidence that he was too drunk to form the intent of committing rape.
Under these circumstances, it was proved that death was caused by an act of violence done in
furtherance of the felony of rape. Such a killing was murder. Therefore, the conviction of murder
stood.
Principle, per Lord Birkenhead: “I come to the conclusion that (except in cases where insanity is
pleaded) these decisions establish that where a specific intent is an essential element in the
offence, evidence of a state of drunkenness rendering the accused incapable of forming
such an 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 he
was incapable of forming the intent required he could not be convicted of a crime which was
committed only if the intent was proved… In a charge of murder based upon intention to kill or
to do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his
drunken condition, incapable of forming the intent to kill or to do grievous bodily harm,
unlawful homicide with malice aforethought is not established and he cannot be convicted of
murder. But nevertheless, unlawful homicide has been committed by the accused, and
consequently he is guilty of unlawful homicide without malice aforethought, and that is
manslaughter”

AG FOR NORTHERN IRELAND V GALLAGHER [1963] AC 349

The respondent, who was of a psychopathic disposition, was convicted at Belfast of the murder
of his wife. At his trial the defence relied upon was that he was insane at the time of committing
the act within the meaning of the M'Naughten Rules, or, in the alternative, was by reason of the
consumption of alcohol incapable of forming the intent necessary to constitute murder and
therefore guilty only of manslaughter. There was evidence that before taking the alcohol the
respondent had evinced an intention to kill his wife. The conviction was overturned on appeal.
The Attorney-General appealed further.
HELD: Appeal allowed. Verdict of murder restored.
Per Lord Denning: “My Lords, I think the law on this point should take a clear stand. If a man,
whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is a
wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the
killing, and whilst drunk carries out his intention, he cannot rely on this self-induced
drunkenness as a defence to a charge of murder, nor even as reducing it to manslaughter. He
cannot say that he got himself into such a stupid state that he was incapable of an intent to kill.
So also when he is a psychopath, he cannot by drinking rely on his self-induced defect of reason
as a defence of insanity.”

AUTOMATISM
DOGO DAGARTI v. THE STATE [1964] GLR 653-655
The appellant and his said wife had lodged with some countrymen of his in the said village. The
appellant was in a room given to them by their host, and the wife was in the kitchen doing some
cooking in the company of two other women. At a certain stage of the cooking the deceased left
the other women to the room to fetch something she needed to put into her soup. Very soon
thereafter she was heard shouting, "I am being killed! I am being killed!" The two women in the
kitchen rushed to the door of the room but found it locked; they thereupon raised an alarm and
many people came to the house; when the door was opened the appellant was found standing in
the room and holding a knife, and the deceased was found lying dead on a mat on the floor with
a number of fresh wounds on her, bleeding; the appellant then dropped the knife, and fell to the
ground; he was caught and tied up, and later handed over to police. The appellant, in his defence
at his trial, repeated what he had told the police, namely, that he did not know that the wife was
dead, and did not know the cause of her death; and added that he used to have certain epileptic
fits, and upon recovery he would have no recollection of anything that he did during the period
of the attack. He was convicted of murder, and he appealed on the ground that the trial judge
erred in directing the jury that, "neither automaton nor hysterical amnesia was a defence in this
country to a charge of murder."
HELD: 1. although our law does not expressly lay down automatism as a defence to a crime, yet
there are instances where an act committed under automatism cannot be said to be the voluntary
act of the person who did it.
2. The judge need not direct the jury on the defence of automatism if there is no evidence of it.
3. Where the evidence of an appellant shows that he killed his wife by reason of unconsciousness
due to a disease of the mind, this amounts to a plea of insanity.
Per Ollennu JSC: Where a defendant pleads that the act complained of was done in a state of
automatism he should be able to show some evidence either coming from the prosecution or
from the defence which could be put to the jury and from which the jury could reasonably infer
that the act was done in a state of automatism. But the question whether there is or is not such
evidence is one for the judge. Where the judge decides that there is no such evidence, no need
arises for him to direct the jury on that defence.
BRATTY V ATTORNEY GENERAL FOR NORTHERN IRELAND [1963] AC 386
The appellant was tried and convicted for murder. He had told the police that he had been
overcome with a “terrible feeling” and a sort of “blackness” when the deed was done. He sought
to rely on the defence of automatism during the trial but the judge rejected this defence and did
not submit it to the jury. He appealed on the grounds, inter alia, that there was a body of
evidence that established that the act was not voluntarily done, and this evidence should have
been left to the jury.
HELD: 1. The judge need not leave the issue of automatism to the jury if the defence did not
leave a proper body of evidence to serve as a foundation.
2. The appellant was deemed to have been sane and reasonable at the time of killing. Therefore,
there could not be said to be lack of intent, and the charge could not be reduced to manslaughter.

CONSENT
Section 14 Of Act 29—Provisions Relating to Consent.
In construing any provision of this Code by which it is required for a criminal act or criminal
intent that an act should be done or intended to be done without a person's consent, or by which
it is required for a matter of justification or exemption that an act should be done with a person's
consent, the following rules shall be observed, namely—
(a) a consent is void if the person giving it 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 he consents".
(b) a consent is void if it is obtained by means of deceit or of duress;
(c) a consent is void if it is obtained by the undue exercise of any official, parental, or any other
authority; and any such authority which is exercised otherwise than in good faith for the
purposes for which it is allowed by law, shall be deemed to be unduly exercised;
(d) a consent is given on behalf of a person by his parent, guardian, or any other person
authorised by law to give or refuse consent on his behalf, is void if it is given otherwise than in
good faith for the benefit of the person on whose behalf it is given;
(e) a consent is no effect if it is given by reason of a fundamental mistake of fact;
(f) a consent shall be deemed to have been obtained by means of deceit or of 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 such deceit, duress, exercise of authority, or mistake, as the case may be;
(g) for the purposes of this section, exercise of authority is not limited to exercise of 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 prejudiced by the invalidity of any consent if he did not know, and
could not by the exercise of reasonable diligence have known, of the invalidity.

Section 42 Of Act 29—Use of Force in Case of Consent of the Person Against whom it is
Used.

The use of force against a person may be justified on the ground of his consent, but—
(a) the killing of a person cannot be justified on the ground of consent;
(b) a wound or grievous harm cannot be justified on the ground 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 purposes of medical or surgical treatment does not extend
to any improper or negligent treatment.
(d) consent to the use of force against a person for purposes of medical or surgical treatment, or
otherwise for his benefit may be given against his will by his father or mother or guardian or a
person acting as his guardian, if he is under eighteen years of age, or by any person lawfully
having the custody of him if he is insane or is a prisoner in any prison or reformatory, and, when
so given on his behalf, cannot be revoked by him;
(e) if a person is intoxicated or insensible, or is from any cause unable to give or withhold
consent, any force is justifiable which is used, in good faith and without negligence, for the
purposes of medical or surgical treatment or otherwise for his benefit, unless some person
authorised by him or by law to give or refuse consent on his behalf dissents from the use of that
force;
(f) a party to a fight whether lawful or unlawful, cannot justify, on the ground of the consent of
another party, any force which he uses with intent to cause harm to the other party; and
(g) 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.
COMFORT AND ANOTHER v. THE REPUBLIC
The complainants, Peter Adjei and Abena Frema attended a meeting so that the latter may be
exorcised of evil spirits. Abena Frema stood naked before the group, while the prophetess, the
first appellant, fell into a trance. It was revealed that the Prophetess fell into a trance, and struck
Abena several times on the head with a stick. The Prophetess does not normally recall what she
does in a trance. Evidence corroborates that Peter hit the second appellant several times on the
head with a stick, while Peter claims to the contrary that the second appellant was the one who
hit him with the stick. The appellants, without reason, were convicted of assault and battery by
the trial magistrate.
HELD (on appeal): Consent negated an offence of assault and battery if the blows were not
likely to cause bodily harm. Abena Frema had not been inflicted with any bodily harm, and there
was also absence of malicious intent. The first appellant, was therefore not guilty of any crime
committed against the Abena Frema.

R v. CATO
The appellant acquired some heroin, which he took home and shared with Anthony farmer and
two others. Farmer prepared his own solution and the appellant was the one to inject him. The
following day, Farmer was dead. The appellant was convicted of manslaughter and unlawful
administering of a noxious thing.
HELD: The appeal was dismissed, and the conviction upheld. The court reasoned that consent
was not a defence to manslaughter, and since heroin in itself was a noxious thing, and was
administered directly and deliberately, there was no need to find malicious intent.

R v. DONOVAN
The appellant beat the victim with a cane in his garage to induce himself to sexual pleasure. The
victim had given her consent to the treatment. The trial held that the case was one of assault,
whether or not the victim gave consent.
HELD (on appeal): It was necessary for the prosecution to prove absence of consent. If the blows
were intended to cause bodily harm, the defendant was doing an unlawful act, and had to be
convicted.

R v. BOLDUC AND BIRD

The first defendant was a medical practitioner treating one Mrs Osborne. On one occasion, when
Mrs Osborne went for treatment, Bolduc appeared with an intern, Bird, who had no experience
on the procedure Bolduc was about to perform. Mrs Osborne agreed to have the intern present.
The intern was in fact a musician friend of Bolduc who had no medical experience. He was
present throughout the examination, even as Bolduc examined Mrs Osborne's vaginal area and
did not touch her. A charge of indecent assault was brought against the two, and they were
convicted at first instance.
HELD (on appeal): What the victim had consented to was different from what was done to her.
The defence of consent therefore would not avail them.
RE T
A court order was made to give blood transfusion to a woman who had previously refused one.
HELD (on appeal): Though every adult has the right and capacity to refuse medical treatment,
this presumption of capacity can be overridden upon a determination that factors such as
confusion, unconsciousness, fatigue, or shock that affect the patient's decision.

RE W (A MINOR)
The court ordered that a minor suffering from anorexia nervosa be transferred against her will
from an adolescent residential unit to a hospital specializing in eating disorders.
HELD: The court, in the exercise of its inherent jurisdiction, may override a child's wishes in her
best interests and give consent for her treatment.

DPP v. MORGAN
A man invited several men to his house to have sex with his wife, telling them that she was kinky
and would pretend to resist, but did actually consent. The men genuinely believed that consent
had been given. The court held by majority ruling, that an honest belief by a man that a woman
with whom he has engaged in sexual intercourse was consenting was a defence to rape,
irrespective of whether that belief was based on reasonable grounds.

R v. BROWN
The appellants belonged to a group of sado-masochistic group of homosexuals who willingly
participated in acts of violence each other for sexual pleasure. The appellants appealed against
their conviction on charges of assault, using consent by the victim as a defence. The court held
that consensual sado-masochistic homosexual encounters which caused actual bodily harm and
wounding, notwithstanding the victim's consent, was unlawful.

IGNORANCE OR MISTAKE OF LAW

Section 29—Ignorance or Mistake of Fact or of Law.
(1) A person shall not be punished for any act which, by reason of ignorance or mistake of fact in
good faith, he believes to be lawful.
(2) A person shall not, except as in this Code otherwise expressly provided, be exempt from
liability to punishment for any act on the ground of ignorance that the act is prohibited by law.

R v. TOLSTON
The appellant's husband went missing and she was told that he 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. The court allowed her to plead
a mistake, as she had honestly believed that her husband was dead.

NYAMENEBA AND OTHERS v. THE STATE

The appellants were members of a religious group who had been consuming 'herbs of life' for
several years. The herbs were found to be Indian hemp and the appellants were convicted. On
appeal, the court held that the appellants had no knowledge that the herbs they were consuming
were Indian hemp. The plea of ignorance of fact, as opposed to ignorance of law was upheld.

FOLI VIII AND OTHERS v. THE REPUBLIC

The appellants were charged with conspiracy to commit crime and causing harm to a corpse they
had cremated without lawful authority. One of the appellants' grounds of defence was that it was
an established and long-standing custom in their locality 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. The appellants' further defence was that by cremating the corpse
they genuinely believed that they were acting in consonance with an accepted custom and did not
know that they were offending against any law of the land. They were convicted at first instance.
On appeal, the court held that the fact that the appellants did not know that that cremation
without lawful authority was a crime, did not exempt them from punishment.

R v. WHEAT AND STOCKS

In this case, the accused/an uneducated man handed over his case to his solicitor for obtaining
divorce from his first wife. He believed that as soon as he handed over his case to his solicitor, he
obtained divorce from his first wife. Believing it in good faith, he married another lady. The first
wife prosecuted him. He pleaded that he did not know the procedure of law and he believed that
he obtained the divorce and with bona fide intention he married another lady. The Court did not
accept his version, and convicted him for the offence for bigamy on the ground that reasonable
belief about the dissolution of marriage would be no defence to the charge of bigamy, unless the
divorce would be obtained from a Court of law.
SECTION 16

OFFENCES RELATED TO ANIMALS

Taking and using cattle without consent of owner – section 299
A person who intentionally and unlawfully catches, takes or drives cattle, or attempts to do so,
out of a pasture or any place for the purpose of riding it or using it to carry a burden or draw a
cart, or driving it about, or any other unlawful purpose without the consent if the owner commits
an offence.

Using horse with farcy or glanders in public way – section 301

If a person uses a horse, mule or ass affected with farcy or glanders knowing it to be so affected,
both he and the owner who permitted it commit a criminal offence.

Cruelty to animals – section 303

(1) A person commits the criminal offence of cruelty and is liable to a fine not exceeding
twenty-five penalty units, who
(a) cruelly beats, kicks, ill-treats, over-loads, tortures, infuriates, or terrifies an animal, or causes
or procures, or being the owner, permits an animal to be so used; or
(b) by wantonly or unreasonably doing or omitting to do an act, or causing or procuring the
commission or omission of an act, causes unnecessary suffering, or being the owner, permits
unnecessary suffering, to be caused to an animal; or
(c) conveys or carries, or being the owner, permits to be conveyed or carried an animal in a
manner or position that would cause the animal unnecessary suffering; or
(d) drives an animal in harness, or when drawing a vehicle, which is in a condition that would
cause the animal unnecessary suffering, or being the owner, permits the animal to be so driven;
or
(e) subjects, or causes or procures, or being the owner, permits to be subjected, an animal to an
operation which is performed without due care or humanity.
(2) An owner commits the criminal offence of permitting cruelty if the owner fails to exercise
reasonable care and supervision in respect of the protection of the animal from an act of cruelty
indicated in subsection (1).
(3) This section does not apply
(a) to the commission or omission of an act in the course of the destruction, or the preparation for
destruction, of an animal as food for human consumption, unless the destruction or the
preparation was accompanied by the infliction of unnecessary suffering; or
(b) to the coursing or hunting of a captive animal unless the animal is liberated in an injured,
mutilated or exhausted condition; but a captive animal shall not, for the purposes of this section,
be deemed to be coursed or hunted before it is liberated for the purpose of being coursed or
hunted, or after it has been recaptured, or if it is under control.

SECTION 17

OFFENCES AGAINST THE PERSON

FATAL OFFENCES AGAINST THE PERSON

MURDER
SECT46 A person commits murder is liable to suffer death.
SECT47 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.

GONJA(IDRISU) v. THE STATE [1964] G.L.R. 573, S.C.

FACTS: On the night of 7 March 1962, the principal witness, a dealer in pito and akpeteshie,
whilst sleeping on a mat outside her room was awakened by a noise coming from the direction of
her room. She raised the alarm which attracted the attention of one Mama Vagala who came to
the scene. At the entrance of the room Vagala met the appellant coming out. As the appellant ran
past him, Vagala fell to the ground, groaning and bleeding profusely from the mouth. He died
shortly afterwards. The medical report showed that death could have resulted from a wound
caused by a double-edged dagger such as was found at the scene. After the incident the appellant
was arrested and he gave a cautioned statement to the police in which he admitted being the
owner of the dagger and of a torchlight which was also found by the deceased. He claimed that
he went to the deceased’s room to drink akpeteshie and was there when he heard shouts. As he
was coming out of the room he was gripped by the deceased and the dagger accidentally cut him.
At the trial, however, he put up an unconvincing defence of alibi. The learned judge at the end of
his summing-up to the jury told them that if they were satisfied beyond reasonable doubt that the
blow was intended to cause bodily harm and death resulted, then they could return a verdict of
guilty of murder. The jury found him guilty of murder and he was accordingly convicted. On
appeal,
HELD, PER OLLENNU JSC:
the failure of an alibi does not relieve the prosecution of its duty to prove its case beyond
reasonable doubt. Although a strong defence of alibi weakens a strong prosecution case, the
failure of an alibi, cannot strengthen a weak prosecution case.
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 so.
Where unlawful harm is inflicted with a further intent that it should cause death, the death which
may result, will be murder

AKOM v. THE STATE [1966] GLR 454-473

SUPREME COURT
OLLENNU, AKAINYAH AND LASSEY JJ.S.C.
FACTS: The appellant was charged with the murder of the deceased person, one Akua Akyia, at
Danso village, Ashanti. The evidence of the prosecution was that the deceased together with the
appellant and some of the prosecution witnesses attended a funeral and thereafter retired to a
house to listen to an accordion music played by one of the witnesses. While enjoying the music
the appellant suddenly and without any provocation was seen sitting on the deceased, his aunt,
and cutting her throat with a razor blade which he carried in his pocket. There was evidence that
relations between the appellant and the deceased were not cordial as the aunt at one time opposed
the installation of the appellant as the odikro of the village. The version of the appellant was that
some of the prosecution witnesses set upon him and beat him mercilessly because one of them
objected to his pouring libation as he had been deposed as odikro. As he was about to drink
some palm wine the fourth prosecution witness held his cloth, pushed him to the ground and beat
him up mercilessly, assisted by some other persons. In order therefore to free himself from the
grip of his assailants, he pulled out the razor blade which he mistakenly thought was a cigarette
lighter and brandished it in the air to scare away his attackers. In doing so the instrument which
turned out in fact to be a razor blade accidentally cut the deceased, who stood nearby, on the
neck and resulted in her instant death. The trial judge directed the jury (a) that if unlawful harm
was caused which ultimately resulted in death, it constituted murder; and (b) that if the appellant
was provoked by one person and he killed another person, reasonably believing that the
provocation was given by him, the provocation was admissible for reducing the crime to
manslaughter; but that apart, "provocation by one person was no provocation to kill another
person," and (c) that if they believed the appellant's story on self-defence then he was guilty of
manslaughter only. The jury returned a verdict of guilty of murder. Consequently, an appeal
against the conviction for murder was brought by the appellant on grounds inter alia that that the
general direction given to the jury as to the constituent of murder as opposed to ordinary
homicide was so irregular and confusing that it misled the jury in coming to a wrong conclusion
on the evidence.
HELD, PER LASSEY J.S.C.
“Here it is obvious from the passages just quoted from the judge's summing-up notes that he was
wrong in directing the jury that if unlawful harm caused ultimately results in death it constitutes
the offence of murder; that is certainly a wrong charge to the jury on the law of murder as
defined in section 47 of Act 29. In our view, not every unlawful act of an accused which results
in death is murder, unless there is clear evidence which shows that the accused also intended
death to result from the unlawful harm or the circumstances are such that a reasonable man
would realise that his act might cause serious and fatal bodily hurt, and the degree of the
probability or possibility of that type of harm resulting in death was apparent to him but he is
indifferent or reckless as to the result. Where the harm, though unlawful, was not done
negligently or intentionally but resulted in death at least it can be manslaughter only. In so far as
the summing-up appears to have ignored this vital distinction between what is in law murder and
what is ordinary homicide, we feel that the judge was wrong, and throughout the summing-up
the judge used similar expressions which ignored this vital distinction between murder and
manslaughter.”

SARIMBE ALIAS OLALA v. THE REPUBLIC [1984-86] 2 GLR 13

COURT OF APPEAL, ACCRA
FRANCOIS, EDUSEI AND MENSA BOISON JJ.A.
FACTS: A quarrel between a husband and wife ended in the husband locking up his wife in a
room and pummeling her mercilessly. She could only be rescued when soldiers rammed the door
open. The woman was sent to the hospital where she died shortly after. The husband is the
appellant and the deceased, his wife. The sad but important aspect of the prosecution’s story is
that the deceased was heavy with child at the time she received that severe beating. One would
have thought that on these facts there was sufficient material for the case to go its full length at a
trial to allow a jury to bring in its verdict one way or the other, but counsel for the appellant
thinks otherwise and accordingly filed this interlocutory appeal after the failure of his submission
of no case. He raised several issues to justify a short termination of the matter.
HELD PER FRANCOIS J.A DISMISSING THE APPEAL:
In any case, medical evidence, like any other form of expert opinion, may be accepted or rejected
by the jury. It certainly deserves the highest respect and attention but if there is matter sufficient
to create doubts in the mind of the jury as to the soundness of the medical opinion expressed, the
jury is fully entitled to give expression to that view in the verdict they ultimately pronounce.
Provided this verdict is not perverse they have the last say in the matter. Even if they err here,
there is machinery within the hierarchy of the court system to correct any errors. Furthermore,
since the facts may establish some punishable offences other than murder; the disqualification of
the doctor cannot ipso facto terminate the trial. Again, in proving death, evidence from the
medical officer is desirable but not essential. There however must be clear evidence that the
death of the deceased was the direct result of the act of the accused to the exclusion of all other
reasonable or possible causes

BOSO v THE REPUBLIC (J3/2/2007) SUPREME COURT, 4 FEBRURARY 2009

WOOD C.J, (PRESIDING), BROBBEY, ANSAH, ANIN YEBOAH, BAFFOE-BONNIE, JJSC
FACTS: The appellant appeared at the jury trial in the High Court Tamale, as the 1st Accused,
was convicted with one other person for the murder of one Debora Biggor and sentenced to
death, for conspiracy to murder and murder. On appeal, the Court of Appeal substituted his
conviction of murder with manslaughter and imposed a sentence of 15 years with hard labour. It
is from this decision of the Court of Appeal that the Appellant, appealed to the Supreme court
against both conviction and sentence.
HELD, PER WOOD (MRS) CJ
The clear legal principle established in the case of R v. Onufrejczyk [1955] 1 Q.B. 388 is that in
a trial for murder, the fact of death can be proved by circumstantial evidence provided that the
jury were warned that the evidence must lead to one conclusion only, and the cause of death may
be proved by such circumstances as render the commission of the crime certain and leave no
degree of doubt, even though there is no body or trace of the body or any direct evidence as to
the manner of death of the victim. On a critical examination of the record, we find that the
appellate court dealt fairly with the appellant by examining the evidence with the greatest care
and detail, the trial judge’s summing up and the verdict which was returned, namely the verdict
of murder.

BOAKYE v THE REPUBLIC [1999-2000] I GLR 740 - 760

SUPREME COURT, ACCRA
EDW ARD WIREDU, BAMFORD-ADDO, KPEGAH, ADJABENG, AKUFFO JJSC
FACTS: This is an appeal from the judgment of the Court of Appeal which upheld the judgment
of the Ashanti Regional Public Tribunal convicting the appellant on a charge of murder, contrary
to section 46 of the Criminal Code, 1960 (Act 29). The facts, according to the prosecution, were
that the appellant and the deceased engaged in a fight but were separated. The appellant was
alleged to have gone to his house nearby to pick a knife with which he chased the deceased and
stabbed him resulting in his death. The defence case however was that a quarrel ensued between
the appellant and some boys, including the deceased near the appellant’s house. He alleged that
he was pushed down, stamped upon and beaten with sticks by the boys and as a result sustained
injuries. He said while he was being beaten, he fell on an object which he picked up and in self
­defence stabbed the deceased with it, resulting in his death. He said the fight was never separated
before he injured the deceased and denied going home after the alleged separation to pick a knife
with which he stabbed the deceased. On appeal the appellant contended inter alia on the ground
that the judgment cannot be supported having regard to the evidence on record.
HELD, PER BAMFORD-ADDO JSC dismissing the appeal (Edward Wiredu and Akuffo JJSC
dissenting):
Applying the facts given by the prosecution witnesses and accepted and believed by the trial
court to the law as set out above, the defences of self-defence and provocation would not avail
the appellant. This is because at the time he struck the deceased with the knife, the appellant was
not in any mortal danger of losing his life as a result of the fight which had already ended, and
the deceased was said to be even running away from appellant at the time. Further, he had had
enough reasonable time in which to cool down. He even went to his house to pick a knife, with
which he chased the deceased, caught up with him and stabbed him. Mens rea for murder is
clearly established by the evidence: see sections 11 and 47 of Act 29. The stabbing was clearly
unlawful and this unlawful harm meted out to the deceased caused his death. Considering the
evidence before the tribunal, the rejection of the two said defences was proper and based on
credible evidence which was believed by the said tribunal and was enough to support a
conviction for the offence charged.

AWEDAM v. THE REPUBLIC [1982-83] GLR 902-912

COURT OF APPEAL, ACCRA
FACTS: The appellant, A, the driver of a Range Rover vehicle, was arraigned before court on a
charge of murder arising from his knocking down and killing one C with the vehicle on 4
February 1978. He denied the charge. At the trial one P, a friend of the deceased, in his testimony
for the prosecution, informed the court that following a complaint he had made to the police
against a friend of A, that friend was tried and convicted for selling a tin of milk above the
controlled price and sentenced to four months' imprisonment on 2 February 1978. C had testified
for the prosecution at that trial. After the trial, A accosted the two of them, i.e. he and C and
threatened that because they had caused his friend to be jailed, he would kill them within three
days. That very evening, A repeated his threat when he met the two of them at the local cinema
palace. He further testified that at about 3 p.m. on 4 February, he was walking alone on the main
road in their town when alarmed by frantic shouts of danger at the approaching of a vehicle
behind him, he jumped over and fell beyond the gutter. A Range Rover then whisked past where
he had been walking a moment before. The appellant, A, turned out to be the driver of that
vehicle. M, the sixth prosecution witness, also testified that at the time of the accident he was
walking with C close to the gutter of the main road when A drove past them at great speed in the
other lane. Some few minutes later they saw the Range Rover about a hundred yards away and
driving towards them at great speed. But at about four yards to them the vehicle swerved directly
at them and struck C across the gutter and the vehicle continued to speed on until it came to a
stop about 300 yards away. After the judge had summed-up the law and the facts to the jury, the
jury convicted A of murder. On appeal by A against the verdict, counsel contended, inter alia,
that the judge in his summing-up: (i) gave inadequate direction on the defence of accident; (ii)
gave inadequate consideration of and direction on the plea of alibi on the issue of intent, thus
rendering that direction improper. He further contended that a statement in the summing-up that
"At the same time you must be careful not to err against the State, because all the work we
should have done will be useless" was prejudicial to A in that the jury must have felt they had to
convict A in any event.
HELD, PER MENSA BOISON JA DISMISSING THE APPEAL
Now proof of motive by itself did not relieve the prosecution from proving that the appellant's
conduct on 4 February showed the specific intent to kill the deceased. The intent to kill must be
discovered from the acts and conduct of the appellant during the events that took place at about
3.30 p.m. on 4 February. Thus, it is that the law does not, as a rule, require proof of motive as an
essential element in a crime. Consequently, when in this case it became necessary for the
prosecution to prove motive, it was obligatory on the trial judge to direct in substance that
notwithstanding the proof of threats of death by the appellant on 2 February, the jury must be
satisfied that the conduct of the appellant, at the material time of the killing of the deceased,
showed an intent to kill. If, therefore, the jury accepted the version of accident or on the whole of
the evidence they were left in doubt, they would be entitled to find the accused not guilty of
murder. The corollary is that when the appellant in his attempt to deny motive set up the "alibi"
that he was at Walewale on 1 and 2 February, it was essential to let the jury appreciate that the
failure of the "alibi" did not relieve them from being satisfied that the prosecution had proved
that the harm to the deceased was caused intentionally and further that the appellant caused it,
intending to kill.”

SERECHI & ANOR. v. THE STATE [1963] 2 G.L.R. 531, S.C.

FACTS: On the 15th December, 1962, the appellants, employees of the Ashanti Goldfields
Corporation were travelling on the corporation’s train from Obuasi to a nearby village.
Employees of the corporation were allowed to travel by the train, but it was prohibited to
non-employees. The deceased and some other persons jumped on to the train while it was in
slow motion. The appellants started beating up the deceased. They eventually pushed him out
when the train was moving fast. The deceased fell on the rail and was run over. He died on the
spot. They were charged and convicted of murder. On appeal, it was contended on behalf of the
appellants that the learned judge misdirected the jury by withdrawing from them the
consideration of the alternative verdict of manslaughter.
HELD, OLLENNU JSC:
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, in which case the alternative verdict of manslaughter should
be considered in accordance with section 154 (1) of the Criminal Procedure Code, 1960 (Act 30)
to find out whether the essential ingredients of the lesser offence has been proved.
It is obligatory on a judge in a murder trial to direct the jury, (i) where the intent to cause death is
not proved, to return a verdict of manslaughter if unlawful harm was proved, and (ii) where the
intent to kill might or might not be inferred, to consider the alternative verdict of guilty of
manslaughter.

Genocide (Inserted by Act 458)

SECT49 (1) A person who commits genocide is liable on conviction to be sentenced to death.
SECT49 (2) A person commits genocide where with intent to destroy, in whole or in part any
national ethnical, 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;
(e) forcibly transfers children of the group to another group.
MANSLAUGHTER
A person who commits manslaughter commits a first degree felony.
SECT51 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 amounts to a reckless disregard for human life.

R v MISRA and SRIVASTAVA (2005] Crim. L.R. 234.

FACCTS: The appellants were two senior house officers. They operated upon the deceased to
repair a tendon. However, the deceased became infected with a disease which was left untreated
and he died a few days after the surgery. It was alleged that as doctors they failed to examine the
patient properly and diagnose the victim's condition, which needed the appropriate treatment,
thus a breach of the duty of care. They were convicted and they appealed pleading that their
conduct was not criminal.
HELD: Their appeals were dismissed on grounds that for a charge of manslaughter by gross
negligence to stand, first there must be death as a result of a negligent breach of duty of care
owed the deceased by the accused. Also, it must be established that the deceased was exposed to
death by the accused and that the circumstances surrounding the death were such as to amount to
gross negligence.

R v ADOMAKO [1993] 4 ALL ER 935

FACTS: The appellant, an anesthetist, took over the latter part of an eye operation at 10.30am. At
approximately 11.05am a disconnection of the endotracheal tube, which had been inserted to
enable the patient to breathe by mechanical means, occurred. The supply of oxygen to the patient
ceased and that led to cardiac arrest at 11.14am. The appellant did not notice or remedy the
disconnection during that period. He became aware something was amiss when the alarm
sounded on the machine monitoring the patient's blood pressure. He then checked the machine
and administered atropine to raise the patient's pulse. He did not check the endotracheal tube
connection. The disconnection was not discovered until after resuscitation measures had begun.
The prosecution alleged that the appellant was guilty of gross negligence in failing to notice or
respond appropriately to obvious signs of a disconnection, such as the patient's chest not moving,
the dials on the mechanical ventilating machine not in operation, the disconnection, the alarm on
the ventilator was not switched on, the patient becoming progressively blue, and the patient's
pulse and blood pressure dropping. The appellant conceded he had been negligent, but that his
conduct was not criminal. The appellant was convicted by a majority of 11 to 1. The Court of
Appeal dismissed his appeal.
HELD, PER LORD MACKAY LC
The Court of Appeal, following R v Bateman 19 Cr App R 8 and Andrews v DPP (1937) AC
576, held that except in cases of motor manslaughter, the ingredients to establish involuntary
manslaughter by breach of duty were the existence of the duty, a breach of the duty which had
caused the death and gross negligence which the jury considered to justify a criminal conviction;
the jury might find gross negligence on proof of indifference to an obvious risk of injury to
health or of actual foresight of the risk coupled either with a determination nevertheless to run it
or with an intention to avoid it but involving such a high degree of negligence in the attempted
avoidance as the jury considered justified conviction or of inattention or failure to advert to a
serious risk going beyond mere inadvertence in respect of an obvious and important matter
which the defendant's duty demanded he should address.

AKERELE v. R. (1942) 8 W.A.C.A. 5

FACTS: Medical doctor administered what turned out to be an overdose of a drug to several
children. Many of the children died after the treatment. The question of whether the act
amounted to criminal negligence was answered in the negative. The court held that the proper
test in such cases is what was the foreseeable consequence of the act and not what the actual
result turned out to be.

STATE v. KWAKU NKYI [1962] 1 G.L.R. 197

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, PER APALOO J:
A voluntary assumption of treatment of a child by a student nurse without the necessary skill is
evidence of mere negligence and not gross negligence.

KOFI ESSEL v. THE STATE [1962] 1 GLR 397-401

IN THE SUPREME COURT
VAN LARE, SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C
FACTS: At the trial of the appellant for manslaughter, four persons gave evidence to the effect
that the appellant whilst driving a five ton Bedford truck at excessive speed, 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. A collision occurred which caused the death of one Gakpetor. On
appeal against conviction the issues for determination were (1) whether the record discloses
sufficient evidence to support the conviction and (2) whether the jury were adequately and
properly directed on the law applicable to the facts of the case.
HELD PER ADUMUA-BOSSMAN J.S.C.
Learned counsel submitted secondly that the learned judge completely failed to define what the
charge of manslaughter is to the jury. Counsel conceded, however, that the learned judge read
the relevant section of the Criminal Code defining and explaining manslaughter to the jury. In
addition, however, to referring the jury to how the Act defines and explains manslaughter, we
find passages in the summing-up which apply or relate the law to the facts of the case and, in
particular, this pertinent passage:
"In assessing the evidence as a whole, if you are satisfied that the harm causing the death is
caused by the negligence of the accused, and that such negligence amounts to a reckless
disregard of human life then you will be justified in returning a verdict of guilty."
In our opinion therefore this complaint also against the summing-up, that it failed completely to
define the charge of manslaughter, is groundless and without substance.

R. v. BATEMAN [1926-30] 28 COX C.C. 33

Medical Practitioner causing the death of a patient.
HELD: for such a person to be guilty there must be evidence that there was such negligence as
was greater than the mere absence of ordinary care. It must be proved that the person showed a
total disregard for the life and safety of others.

STATE v. TSIBA [1962] 2 G.L.R. 109, S.C.

FACTS: The appellant was in the early hours of the morning of the 15th December, 1961,
preparing to return home from a night’s hunting in the Afofosu Forest, when he saw a reddish
light on the ground, which to him looked like the reflecting eyes of an animal. Before shooting at
it, however, he flashed his hunting-lamp and whistled four times to attract the attention of any
persons who might happen to be about. No one answered to his whistle and he therefore fired at
the object. His shots hit and killed one Kofi Sowah. On these facts the appellant was convicted
of manslaughter contrary to section 51 of the Criminal Code, 1960.
PER AKUFO-ADDO JSC:
In trials for manslaughter by negligence, and especially in a case like this, it is not sufficient to
refer to the verbatim terms of section 51 of the Criminal Code, 1960, and to tell the jury that to
convict they must find negligence amounting to a “reckless disregard for human life.” A very
high degree of negligence is required for manslaughter and it should be impressed upon the jury
that the issue they have to try is not negligence or no negligence, but felony or no felony. Dicta

BERKO v. THE REPUBLIC [1982-83] G.L.R. 23, C.A.

FACTS: K attempted to rape N, the pregnant wife of O. Upon a report made by O to the odikro
of their village, K was found guilty and fined ¢40. When B, a soldier brother of O who was a not
resident in the village, came to the village and heard of the incident and the settlement by the
odikro he went and protested to the odikro for his treatment of an attempted rape as a civil
offence. He later on sent for K on the purported authority of the odikro. K sustained injuries in a
fight with B, from which he died before he could be taken to the hospital. At the trial of B for
manslaughter N testified that B and K exchanged blows in their house but after they had been
separated and K was on his way out, he slipped in mud and fell. A, who was in the company ofK
at all material times, however testified that after K had declined an invitation for a fight, B
started beating him with his fists and a stick and when K attempted to run away he was tripped
by a brother of B and he fell. Whereupon B who was then wearing “guarantee” shoes kicked K
in the ribs and stamped him on the side of his chest. The pathologist who conducted the
post-mortem examination was of the opinion that death was due to severe chest and abdominal
injuries, such as could be caused by someone stamping on the chest particularly the sternum,
while the victim was asleep or unconscious. After the judge had summed-up the evidence, the
jury rejected B’s plea that K died when he resisted his efforts to arrest him and take him to the
police station for the commission of the offence of attempted rape or threat of harm and found
him guilty of manslaughter. On appeal, counsel for B contended, inter alia, that: (1) the evidence
of N and A were in conflict and that the trial judge erred by non-direction thereon; and (2) there
was substantial miscarriage of justice occasioned by the failure of the learned trial judge to
define the offence of manslaughter under the Criminal Code, 1960 (Act 29), s. 51.
HELD, MENSA BOISON JA: the act was reckless, and amounted to manslaughter.

R. v. AWONU (1946) 12 W.A.C.A. 95

Appellant went out hunting at about 6.30p.m. near a stream used by people from his village. He
saw something at the edge of the stream and believing it to be an antelope, shot at it. He killed a
man instead. His appeal against his conviction for manslaughter was dismissed because his
conduct was so negligent as to create liability for manslaughter.

REG. v MITCHELL [1983] Q.B. 741

FACTS: The defendant, in the course of a quarrel in a queue hit a man, causing him to fall
against an elderly woman who then fell down and suffered a broken leg. She appeared to be
recovering from the injury when she suffered a pulmonary embolism which caused her death. He
appealed against his conviction for manslaughter.
HELD: dismissing the appeal, that it was not necessary to establish that the unlawful and
dangerous act was aimed at, or involved a direct attack or impact upon, the person who died: and
that, accordingly, although the appellant had aimed no blow and had no physical contact with the
woman who died, she was injured as a direct and immediate result of his act and died thereafter,
and it was open to the jury to conclude that her death was caused by the appellant's act".
Therefore, unlawful harm need not be caused by a direct blow of the accused. Consequently, the
case should have been left to the jury. Decision of Hong Kong court of Appeal in Reg v Kwok
Chak Ming (No. 2) H K. L. R. 349 approved

INTENTIONAL MURDER REDUCED TO MANSLAUGHTER

SECT52 A person who intentionally causes the death of another person by unlawful harm
commits manslaughter, and not of murder or attempt to 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 for the time being of the power of self-control;
or

R v FRANKLIN (1883) 15 Cox CC 163

FACTS: Mr Franklin took up a larger box from Brighton Pier and threw it into the sea. The
victim was swimming underneath in the sea at the time and was struck by the box and died.
Relying on the case of R v Fenton (1830) 1 Lew CC 179, the prosecution argued that,
independent of the question of negligence, in order to find manslaughter, it should be sufficient
to show that the defendant did an unlawful act which he can neither justify nor excuse.
HELD: The jury had to consider the case within the framework of negligence and not upon the
narrow ground proposed by the prosecution, i.e. death caused by a (civil) wrongful act. Simply
because a civil wrong was committed, it ought not to be used as a necessary step in a criminal
case. The case of R v Fenton was not binding on the Court as the circumstances of the present
case were different. For constructive manslaughter there must be an unlawful act. The unlawful
act must constitute a criminal offence. It is not sufficient that the act committed is against civil
law. Mr Franklin was found guilty of manslaughter based on the principles of criminal
negligence.

SENE AND ANOTHER v. THE REPUBLIC [1977] 1 GLR 434-440

COURT OF APPEAL, ACCRA
AMISSAH, JIAGGE AND ARCHER JJA
FACTS: The case for the prosecution at the trial of the appellants for murder was that 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. The first appellant did not plead provocation but his testimony
that it was the deceased who first struck him was corroborated by the first prosecution witness.
The second appellant pleaded alibi. In his summing-up to the jury the trial judge directed them
in respect of the first appellant to convict for murder if they found that it was the first appellant
who started the fight but to return a verdict for manslaughter if the fight was initiated by the
deceased. In respect of the second appellant he directed them to convict for murder if they found
that he threw a stone at the deceased. On appeal it was submitted, inter alia, that the trial judge
erred in his treatment of the question of intent and that he also erred when he failed to direct the
jury on the issue of provocation.
HELD PER AMISSAH J.A. ALLOWING THE APPEAL
From the citations, it is clear that the wisdom distilled in this passage goes back over centuries.
It all turns on what the intention of the accused can be said to be from an examination of the
circumstances, not on a mechanical calculation derived from who started the fight. Whoever
survives a duel is held guilty of the murder of his opponent who died because the whole contest
is pre-arranged and is fought with deadly weapons. Death is the expectation or ought to be the
reasonable expectation of the parties; and when it results the survivor is held responsible for it. It
cannot, on the other hand, be said that persons who fight with fists necessarily expect death to
follow from their adventure. In order to fasten a person with responsibility for murder for
fighting with his [p.438] fists, it must be shown that he realized that death was the probable
consequence of his act when he undertook to engage in it. If not, whoever started the fight, he
would not be guilty of murder. And this ought to be made clear to a jury. In this case, with the
emphasis laid on who started the fight, the impression might easily have been gained by the jury
that once a person started a fight and his opponent died as a result of the fighting then he who
started the fight would be guilty of murder. But that is not a correct statement of the law.
Both his inadequate treatment of intent and his omission to deal with the issue of provocation, as
explained above, were prejudicial to the appellants. We do not know what the verdict would
have been if the jury had been properly directed but most probably it would have been guilty of
manslaughter. In the circumstances we would quash the conviction for murder and substitute a
conviction for manslaughter. We would impose on each of the appellants a sentence of eight
years' imprisonment with hard labour.

KONTOR v THE REPUBLIC [1987-88] 1 GLR 324

FACTS: The appellant and the deceased were cousins who lived in the same house. Appellant
stabbed deceased who died of his wounds later. There was evidence that the deceased was the
bigger and stronger of the two, as well as the aggressor, and that the appellant uttered words of
remorse when the incident happened. During his trial, the judge failed to direct the jury on
manslaughter as an alternative verdict given the circumstances of the attack. He was
subsequently convicted of murder and he appealed.
HELD, PER ABBAN JA: if it is found that the intent to kill was absent then in the
circumstances, consider a verdict of manslaughter.
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. Verdict of manslaughter substituted for murder.

SECTIONS CONT’D
SECT52 (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
SECT52 (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.

R. v. CHIMA (1944) 10 W.A.C.A. 223

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 infanticide.

SUICIDE
57. Abetment of suicide.
SECT57 (1) A person who abets the commission of a suicide commits a first degree felony
whether or not the suicide is actually committed.

R v CROFT [1944] 1 KB 295

Two persons entered into a pad 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 since his acts made him an accessory before the fact to suicide.

McSHANE v R (1977) 66 Cr. App R 97

The appellant had inherited an estate from her grandmother, in which her mother had a life
interest. The mother had been unwell for some years and had threatened suicide. Appellant
arranged for her mother to commit suicide. The attempt failed and she was convicted of
attempting to counsel and procure her mother's suicide.
HELD: the offence did not require that the suicide should have been committed in pursuance of
the abetment. Appeal dismissed.
SECT57 (2) A person who attempts to commit suicide commits a misdemeanour.

CHILD AS THE OBJECT OF HOMICIDE

SECT66 (1) In order that a child may be considered for the purposes of murder or manslaughter
to cause its death, it is necessary that, before its death, the child should have been completely
brought forth alive from the body of the mother.
SECT66 (2) It is not necessary
(a) that a circulation of blood, independent of the mother's circulation, should have commenced
in the child, or
(b) that the child should have breathed, or
(c) that it should have been detached from the mother by severance of the umbilical cord.
SECT66 (3) 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.

ATTORNEY-GENERAL'S REFERENCE (No 3 of 1994) [1996] QB 581, CA

FACTS: The respondent stabbed his pregnant girlfriend in the abdomen and ruptured the wall of
her uterus. The wound was sewn up as doctors mistakenly believed that the foetus was uninjured.
A little over two weeks later, the woman went into labour and delivered a grossly premature
child who survived only for 120 days despite the best medical interventions. Respondent was
tried and sentenced for causing grievous bodily harm, but was charged with murder upon the
death of the child based upon the fact that the baby had also suffered a cut in the abdomen in
utero. The court upheld a submission of no case to answer in respect of the death of the child.
The Attorney-General referred the question of whether injury caused to a foetus in utero could
form the basis of a charge of murder or manslaughter.
HELD: Murder or manslaughter can be committed where unlawful injury is deliberately inflicted
either to a child in utero or to a mother carrying a child in utero in the circumstances postulated
in the question. The requisite intent to be proved in the case of murder is an intention to kill or
cause really serious bodily injury to the mother. Such intention is appropriately modified in the
case of manslaughter; and; The fact that the death of the child is caused solely in consequence
of injury to the mother rather than as a consequence of injury to the fetus does not negative any
liability for murder and manslaughter provided causation is proved.

R v WEST (194S) 2Car & K784; 175 ER 329

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.

SECT61 CAUSING HARM TO CHILD AT BIRTH

(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 (Amended by PNDCL102)

SECT58 (1) Subject to subsection (2)

(a) a woman who, with intent to cause abortion or miscarriage, administers to herself or
consents to be administered to her a poison, drug or any other noxious thing or uses an
instrument or any other means whatsoever; or
(b) any person who-
(i) administers to a woman a poison, drug or any other noxious thing or uses an instrument
or any other means with the intent to cause abortion or miscarriage of that woman, whether or
not that woman is pregnant or has given her consent,

R v HOLLIS & ANOR (1873) 28 LT 455

"Noxious thing" does not necessarily refer to poisonous substances. It is enough if the substance
produces the effect that the Act proscribes.

R v TITLEY (1877-82) 14 COX CC 502

If a man supplies any noxious thing intending it to be used to procure the miscarriage of a
woman, it is immaterial that the woman is not in fact, pregnant.

SECT58 (1 B) (ii) induces a woman to cause or consent to causing abortion or miscarriage,

SECT58 (1 b) (iii) aids and abets a woman to cause abortion or miscarriage.

OBENG v THE REPUBLIC [1971] 2 GLR 107, CA

FACTS: When one M. discovered that she was pregnant she went with her friend, one A., to the
appellant to ask if he could terminate her pregnancy. In the presence of A., the appellant agreed
to procure an abortion on M. Subsequently the appellant administered four injections and
following the last injection he arranged for M. to stay with one O. who was informed of what had
happened. During the night M. aborted and she was taken to the hospital by O. In due course the
appellant was convicted of attempting to cause an abortion. On appeal the appellant submitted
(1) that the trial judge had failed to direct the jury that A. was an accomplice with the requisite
caution in the evaluation of her evidence therefore not having been given; (2) that the evidence
of O. had not carried the prosecution’s case any further because if the test of sufficiency and
clarity had been applied to the evidence it would have been found wanting; and (3) that the trial
judge erred when he directed the jury that “our law does not require that the prosecution must
prove that the abortion was caused by the means used.”
HELD, PER SOWAH JA:
Because A. was not present when any of the injections were given, she was not a participant to
the crime; and because she was not a participant the issue of accomplice vel non could not have
arisen. The trial judge was correct in not directing the jury that A. was an accomplice.
The prosecution must have established both the intent to cause a miscarriage and the act or
means used in furtherance of that intent. The direction that “our law does not require that the
prosecution must prove that the abortion was caused by the means used” was wrong. However,
the rest of the direction led the jury to pronounce a lesser verdict and therefore the confusion
inured to the benefit of the appellant.

SECT58 (1 b) (iv) attempts to cause abortion or miscarriage, or

SECT 58 (1 e) (v) supplies or procures a poison, drug, an instrument or any other thing knowing
that it is intended to be used or employed to cause abortion or miscarriage, commits a criminal
offence and is liable on conviction to a term of imprisonment not exceeding five years.
SECT58 (2) It is not a criminal offence under subsection (1) if an abortion or a miscarriage is
caused in any of the circumstances referred to in paragraph (a) or (b) of subsection (1) by a
registered medical practitioner specialising in gynaecology or any other registered medical
practitioner in a Government hospital or in a private hospital or clinic registered under the
Private Hospitals and Maternity Homes Act, 1958 (No.9) or in a place approved for the purpose
by legislative instrument made by the Minister;

ROYAL COLLEGE OF NURSING OF UNITED KINGDOM v DEPARTMENT OF HEALTH

& SOCIAL SECURITY [1981] AC 800
THE HL: The phrase "termination by a registered medical practitioner" includes treatment
prescribed and initiated by a doctor who remains in charge throughout the surgery, which is
carried out with his directions by qualified nursing staff entrusted with its execution in
accordance with accepted medical practice.

SECT58 (2) (a) where the pregnancy is the result of rape, defilement of a female idiot or incest
and the abortion or miscarriage is requested by the victim or her next of kin or the person in loco
parentis, if she lacks the capacity to make the request;
SECT 58 (2) (b) where the continuance of the pregnancy would involve risk to the life of the
pregnant woman or injury to her physical or mental health and the woman consents to it or if she
lacks the capacity to give the consent it is given on her behalf by her next of kin or the person in
loco parentis; or

R v BOURNE [1938] 3 All ER 615

FACTS: A 14-year-old girl was raped by five soldiers and became pregnant as a result. An
eminent gynaecologist performed an abortion on her and was charged with the offence of
conducting an illegal abortion. He was acquitted.
HELD, PER JUSTICE McNAUGHTEN
“If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the
probable consequence of the continuance of the pregnancy will be to make the woman a physical
or mental wreck, the jury are entitled to take the view that the doctor is operating for the purpose
of preserving the life of the mother”

R v SMITH (JOHN) [1974] 1 All ER 376

FACTS: Appellant carried on a special practice in the termination of pregnancies. A young
woman came to see him for an abortion. He neither examined her internally nor asked about her
medical history. No arrangements were made to seek a second medical opinion. He agreed to
terminate the pregnancy upon payment of some money.
HELD: the pregnancy was not terminated on the good faith of the appellant. There was no
medical risk to the girl of carrying the pregnancy to term. He had acted in bad faith since he had
no basis for carrying out the termination.

SECT58 (2) (c) where there is substantial risk that if the child were born, it may suffer from, or
later develop, a serious physical abnormality or disease.
SECT58 (3) A person who intentionally and unlawfully causes abortion or miscarriage commits
a second degree felony.
SECT58 (4) For purposes of this section "abortion or miscarriage" means the premature
expulsion or removal of conception from the uterus or womb before the period of gestation is
completed.

SECT 62 Concealment of body of child at birth

(1) A person 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.
(2) Subsection (1) does not apply to
(a) the case of a child of less than six months growth before its birth;
(b) the case of intent to conceal the birth, existence or the manner or cause of its death, from a
particular person but it is requisite that there should be an intent to conceal the body from
persons generally, except persons who abet or consent to the concealment.
(3) Subsection (1) applies to the mother of the child as it applies to any other person.

SECT 63 Explanation as to concealment of body of a child at birth

(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.

BOATENG v THE STATE [1964] GLR 602

SUPREME COURT
OLLENNU, ACOLATSE AND SIRIBOE JJ.S.C.
FACTS: The appellant was convicted by Apaloo J. (as he then was) at the High Court, Kumasi,
for abetting an abortion contrary to sections 20 (1) and 58 of the Criminal Code, 1960,1 and
sentenced to a term of ten years’ imprisonment with hard labour. That was the minimum penalty
prescribed by section 1 of the Criminal Code (Amendment) (No.3) Act, 19632 The first
defendant, a girl under the age of fifteen years, whom the appellant was alleged to have abetted,
was charged with the substantive offence of abortion, contrary to section 58 of Act 29, and tried
together with the appellant. She was also convicted. Being precluded, by reason of the age of the
girl, from imposing a sentence of imprisonment upon her, the court bound the first defendant
over to keep the peace for a period of four years. She has not appealed from her conviction and
the said order. The offence of the abetment of a crime, as defined in section 20 (1) of Act 29,
may only be committed if the act or omission of another party which is purposely aided,
facilitated, encouraged or promoted itself constitutes a crime. Therefore, if it is shown that the
act or omission complained of in that other person does not amount to a crime known to our law,
any act of whatever nature which aids, facilitates, encourages or promotes the commission of that
other act, is not punishable as a crime. Upon that principle the first issue to be decided in the
appeal is whether the charge of abortion preferred against the first defendant was proved.
Counsel for the appellant submitted that the prosecution failed to prove it, and that consequently
the conviction of the appellant cannot stand.
HELD, PER OLLENU JJSC
Dr. Armar, a gynaecologist, who was the fourth prosecution witness, in answer to the court said,
“It cannot be said categorically that the abortion was due to the drug. It cannot also be said
categorically that the abortion was not due to the drug.” That evidence does not satisfy the
standard of proof which the law requires in a criminal case to establish that the miscarriage was
induced. If the learned judge had addressed himself on that evidence it is inevitable that he
would be obliged to hold that the prosecution failed to prove that the miscarriage was induced,
and therefore to hold that the charge of causing an abortion was not proved.
Therefore, the question of the attempt to cause an abortion or of the offence of using means to
cause an abortion does not arise either. The court, therefore, being satisfied that the decisions of
the trial judge on the questions of law raised are wrong, that the trial judge misdirected himself
on the essential facts, and consequently that his judgment has occasioned a miscarriage of
justice, has to allow the appeal, by virtue of section 15 (1) and (2) of the Courts Act, 19605
quash the conviction of and sentence passed upon the appellant, and direct that a judgment
verdict of acquittal be entered.

DONKOR v THE REPUBLIC [1974] 2 GLR 254

FACTS: 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, PER EDWARD WIREDU J:
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. What constituted secret
disposition and abandonment within the language of section 63 was a question of fact depending
upon the circumstances of each particular case. Whether a particular disposition or
abandonment is intended to be secret is a question of fact, because the offence is not one of strict
liability.
NON FATAL OFFENCES AGAINST THE PERSON

RAPE
A person who commits rape commits a first degree felony and is liable on conviction to a term of
imprisonment of not less than five years and not more than twenty-five years.

SECT98 Rape is the carnal knowledge of a female of not less than sixteen years without her
consent.

QUEEN v PAPADIMITROPULOUS (1957) 98 CLR 249 (Aus)

"Carnal knowledge is the physical act of penetration; it is the consent to that which is in
question. Such consent demands a perception as to what is about to take place, as to the identity
of the man and the character of what he is doing. Once the consent is comprehending and actual,
the inducing causes cannot destroy its reality and leave the man guilty of rape. "

KAITAMAKI v R [1984]3 WLR 137

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: sexual intercourse is a continuing act which only ends in withdrawal. Thus, the
conviction of the appellant was well founded.

R v FLATTERY (1874-77) 13 COX CC 388

The prosecutrix submitted to sexual intercourse with the accused, under the belief that he was
performing on her a surgical operation to cure her of a bout of fits.
HELD: the act to which the prosecutrix submitted was materially different from what the
accused did. She consented to being treated medically, and not to the accused having sexual
intercourse with her. The act therefore amounted to rape.

R v LINEKAR [1995]3 AII ER 70

A prostitute laid a charge of rape against a 17-year-old boy who had failed to pay her after he had
had sex with her. He was convicted on the grounds that his fraud vitiated the contract as he did
not possess the £25 which was her charge, and therefore had no intention of paying her at the
time he contracted for her services. He appealed.
HELD: that although the boy's conduct had been fraudulent, there was no fraud as regards the
nature of the act he intended to engage in with her.

SECT99 PROOF OF CARNAL KNOWLEDGE

Where,, on the trial of a person for a criminal offence punishable under this Act, it is necessary to
prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal
knowledge is complete on proof of the least degree of penetration.
R v MARSDEN (1890-95) 17 COX CC 297
Accused had been convicted of carnal knowledge of a girl often years old. There was evidence of
penetration and not of emission. On a reserved question, court held that the requirement of the
law was penetration only and therefore the offence was completely proved.
G/CPL VALENTINO GLIGAH & ANOR v. THE REPUBLIC [06/05/2010] CRIMINAL
APPEAL NO. J3/4/2009
SUPREME COURT
BROBBEY (PRESIDING), ANSAH, DOTSE, YEBOAH, BAFFOE-BONNIE JJSC
FACTS: The accused/appellants, who at all material times were policemen, had been charged
with the offence of Rape contrary to section 97 of the Criminal and Other Offences Act, 1960
(Act 29) as amended by Act 458 (1993), tried and convicted by a Court with jury and sentenced
to 15 years imprisonment each, with hard labour on the 18th day of July, 2003 by Avril
Anin-Yeboah J (Mrs). On the 13th day of November 2008, an appeal against the conviction and
sentence of the accused persons was unanimously dismissed by the Court of Appeal. It is against
this Court of Appeal decision that the accused persons appealed to the Supreme Court. The court
unanimously upheld the decision of the Court of Appeal and dismissed the appeal.
HOLDING: Per Dotse JSC “There is no doubt that as a nation, apart from the menace of
narcotics and armed robbery, rape and defilement cases are on the ascendancy. This therefore
leaves no one in doubt that there is the need for a concerted effort to remove and destroy this
dangerous canker of rape from our society. The moral decadence that the country has sunk into
makes it imperative for all and sundry, especially the law enforcement agencies like the courts to
be at the vanguard of this crusade. We are therefore of the opinion that, once the quilt of an
accused person has been established in a criminal trial using the accepted standard and or burden
of proof, the issue of punishment must be considered using different criteria. This is because, in
imposing sentence on a convicted person, the courts normally take into consideration factors
such as whether the sentence is of a deterrent, reformative, or retributive nature. Sometimes, the
criminal and previous antecedents of the accused are taken into consideration. In the present
case, the accused persons who are policemen and mandated to maintain law and order but have
rather become the perpetrators of crimes against innocent law-abiding citizens who they are to
protect must receive harsh and deterrent sentences”
HE FURTHER ADDED:
WHAT THEN IS RAPE
Section 99 of Act, 29 defines Rape as
“carnal knowledge of a female without her consent”.
Carnal knowledge is the 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 known as brush work, penetration would be deemed to have occurred
and carnal knowledge taken to have been completed.
INGREDIENTS OF RAPE
The following are the ingredients of Rape:
1. That someone has had carnal knowledge of the victim, in this case Cynthia Nyante
(PW1) by the accused persons
2. That, the someone is the accused person, in the instant case, the two accused persons.
3. That the PW1 was carnally known against her wish i.e. in this case, that the two accused
had sex with PW1 against her will.

NB: See the element of Consent under SECTION 14 of Act 29, and the cases of Williams;
Flattery; Olugboja; Camplin; Young; and SECTION 42 (g) all under defences.
DEFILEMENT
SECT101 (1) For the purposes of this Act, defilement is the natural or unnatural carnal
knowledge of a child under sixteen years of age.
SECT 101 (2) A person who naturally or unnaturally carnally' knows a child under sixteen years
of age, whether with or without the consent, commits a criminal offence and is liable on
summary conviction to a term of imprisonment of not less than seven years and not more than
twenty-five years.

REPUBLIC v YEBOAH [1968] GLR 248

The accused was tried at the High Court with assessors on a charge of defilement of a female
under ten years contrary to the Criminal Code, 1960 (Act 29), s. 101. The victim, aged nine
years, testified that the accused had intercourse with her in his workshop. Even though she felt
pains she never reported the incident till about a week after when she confessed to her mother. A
doctor who examined the accused and the victim testified that the victim had a tear in her hymen,
inflammation in her vagina, and that both the accused and the victim had gonorrhea infection.
The accused denied the offence and maintained that he was impotent and incapable of having
intercourse. The court found as a fact that the victim was defiled. The relevant part of her
testimony was “…The accused raised me up on to his thighs as he was seated on a chair…Before
the accused put me on his thighs, he took off my cover cloth and also my drawers or pants. He
put me on his thighs with my face towards him. My legs were hanging and could not touch the
ground…The accused then put his penis inside or into my vagina, and I cried as I was feeling
pains. He pushed his penis into my vagina. [After that] I just put on my pants and as I was going
home the accused gave me a two and a half new pesewas piece saying I should buy some food
with it.”

HELD, PER BAIDOO J: 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 defence in such a charge.

CARNAL KNOWLEDGE
SECT 102 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 person, in circumstances 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 and not more than twenty-five years.

R v PRESSY (1864-67) 10 COX CC 635

Accused had sexual intercourse with a thirty-seven-year-old female who was an apparent idiot. It
was held that the accused was guilty of an offence.

INDECENT ASSAULT
SECTION 103. 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, or
(b) sexually violates the body of the other person, in a manner not amounting to carnal
knowledge or unnatural carnal knowledge.

ALAWUSA v. ODUSOTE (1941) 7 W.A.C.A. 140

The appellant had forcibly shaved the pubic hairs of his wife, the complainant. He was convicted
of indecent assault, and he appealed.
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. Conviction for common assault substituted.
NB: the ratio in this case is bad law now.

BOLDUC & BIRD v. QUEEN (1967) 63D.L.R. (2d) 82

The first appellant was a doctor who, about to conduct a vaginal examination of a patient, invited
his lay friend - the second appellant to be present and watch the procedure. The doctor
introduced the friend as a medical intern and in consequence the woman consented to his
presence. The two persons were convicted of indecent assault on the woman and their
convictions were affirmed by an appellate Court. On further appeal, the convictions were
quashed because although her consent had been procured by a misrepresentation, it did not affect
the nature and quality of the act i.e. the medical examination, to which she consented. Since the
second appellant had merely stood and looked on, his act could not amount to an assault:

R v SARGEANT [1997] Crim LR50, CA

Appellant was convicted of indecent assault on a male. He had grabbed the complainant while he
was on his way home and forced him to masturbate into a condom. Although he grabbed the
complainant physically, he did not touch him in a sexual manner. The question was whether there
could be m indecent assault in law when there had been no indecent touching.
Held: dismissing the appeal, that to compel a person to masturbate in a public place was an
indecent act and could support a change of in decent assault.

DPP v ROGERS [1953] 2 AH ER644

The respondent at all material times lived with his wife and daughter. On two occasions, he put
his arm round his daughter’s shoulders and led her upstairs. She made no objection or resistance,
and no force or compulsion was used. He then exposed his person to the child and told her to
masturbate him. On both occasions the child obeyed him although she did not wish to do so. On
both occasions he was alone in the house with the child. On both occasions when he put his arm
round his daughter’s shoulders, he did so to lead her upstairs, intending to conduct himself
indecently towards her. On the first occasion the child neither minded nor objected to his putting
his arm round her shoulders, but on the second occasion, knowing the nature of his intention
towards her, she did not wish to accompany him upstairs, but, nevertheless, she neither objected
nor resisted, but submitted to his request
HELD: it is no indecent assault if a person merely invites another to touch him. In the words of
Lord Goddard CJ:
Before you can find that a man has been guilty of an indecent assault, you have to find that he
was guilty of an assault, for an indecent assault is an assault accompanied by indecency, and, if it
could be shown here that the respondent had done anything towards this child which, by any fair
use of language could be called compulsion, or had acted…in a hostile manner towards her—that
is, with a threat or a gesture which could be taken as a threat, or by pulling a reluctant child
towards him—that would, undoubtedly, be assault, and, if it was accompanied by an act of
indecency, it would be an indecent assault… There might be a case in which the evidence
showed that what was done was against the will of the child, but, as the respondent used no
compulsion, no force, on the child to go upstairs, however much we may regret that we cannot
punish him for doing an act which deserves the reprobation of every decent man, we feel that the
only thing we can do is to say that the justices came to a right decision and reluctantly dismiss
this appeal
PER PARKER J: I feel constrained to agree, but with extreme reluctance.

R v MASON (1968) 53 Cr App Rep 12

A married woman had sex with about six boys aged between 14 -16 years on various occasions.
She was indicted for indecent assault, but the prosecution failed because there was no evidence
of her having used force on them, or even that she had made a contact with their person. Since
they had done the penetration and with her consent, no offence had been committed.

UNNATURAL CARNAL KNOWLEDGE

SECTION 104. (1) A person who has unnatural carnal knowledge
(a) of another person of not less than sixteen years of age or over without the consent of that
other person commits a first degree felony and is liable on conviction to a term of imprisonment
of not less than five years and not more than twenty-five years: or
(b) of another person of not less than sixteen years of age with the consent of that other person
commits a misdemeanour; or
(c) of an animal commits a misdemeanour.
(2) Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or
with an animal.

ATTORNEY-GENERAL'S REFERENCE NO. 19 OF 1992 (R v S) (19931 Crim ER 82

A husband committed buggery on his wife on several occasions. There was evidence that
sometimes the buggery took place under horrific conditions. On appeal against the sentence,
court held that the circumstances were such that a lenient sentence was inappropriate.

R v ALLEN (1848-50) 3 COX CC 270

Accused induced a twelve-year old hoy to sodomize him.
Held: although accused was the one sodomized, he was guilty of unnatural carnal knowledge.

INCEST
SECTION 105 (1) A male of not less than sixteen years of age who has carnal knowledge of a
female whom he knows is his grand-daughter, daughter, sister, mother or grandmother commits a
criminal offence and is liable on conviction lo a term of imprisonment of not less than three years
and not more than twenty-live years.
(2) A female of not less than sixteen years of age who has carnal knowledge of a male whom
she knows to be her grand-son, son, brother father or grandfather commits a criminal offence and
is liable on conviction lo a term of imprisonment of not less than three years and not more than
twenty-live years.
(3) A male of not less than sixteen years of age who permits a female whom he knows to be his
grandmother, mother, sister or daughter to have carnal knowledge of him with his consent
commits a criminal offence and is liable on conviction lo a term of imprisonment of not less than
three years and not more than twenty-five years
(4) A female of not less than sixteen years of age who permits a male whom she knows is her
grand father, father, brother or son to have carnal knowledge of her with her consent, commits a
criminal offence and is liable on conviction to a term of imprisonment of not less than three years
and not more than twenty-live years.
(5) In this section "sister" includes half-sister, and "brother" includes half-brother, and for the
purposes of this section an expression importing a relationship between two people applies
although the relationship is not traced through lawful wedlock.

R v CARMICHAEL (1939-40)31 COXCC409

Appellant was convicted of incest. His defence was that his former wife (the girl's mother) had
told him that she was not his daughter because she had been fathered by another man.
Held: the crux of the offence was sexual intercourse with one who was to his knowledge, his
daughter. It was not enough for the prosecution to prove that the girl was the man's daughter.
'They had to go further and prove that this was a fact he knew.

SEE SECTION 106 for Householder permitting defilement of a child

SEE SECTION 107 for Procuration
SEE SECTION 108 for Seduction or prostitution of a child under sixteen.

R v de MUNCK (1918-21) 26 COX CC 302

Appellant used to take her under-age daughter out and accost men at street corners. She would
then take them home with her, and leave the men alone with her daughter for a while. She would
then ask for, and receive money from those men. She was held to have encouraged the
prostitution of her daughter. There was medical evidence that the girl's virginity was intact yet
the court found ample evidence that acts of lewdness had taken place. Her conviction was held to
be proper.
DRURY (ALFRED) v R (1975) 60 CAR 195
Appellant employed a 14-year old baby-sitter in his house. In his presence, a friend of his gave
the girl alcoholic drinks and then indecently assaulted her.
Held: 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.

NON-SEXUAL AND NON-FATAL OFFENCES AGAINST THE

PERSON

UNLAWFUL ASSAULT
SECT84 AND 85 FOR THE THREE TYPES OF ASSAULT

86. Assault and battery

R v HARE (1934-39) 30 COX CC 64
FACTS: Appellant was convicted of indecent assault on a boy of twelve years. She contended
that such an offence had to be sodomitical in character.
Held: this was not so, and that within the meaning of the Act a woman was capable of
committing an indecent assault even on another woman.

COMFORT & ANOR v THE REPUBLIC [1974] 2 GLR 1

FACTS: the complainants, Peter Adjei and Abena Frema had attended a spiritualist meeting
which the first appellant had conducted at her house to exorcise evil spirits and that in the course
of the meeting the first appellant, who is acknowledged by the group as a prophetess and was
therefore the chief actress in the drama, had hit the head of Abena Frema several times with a
stick in her effort to exorcise Abena Frema of her evil spirit. Peter Adjei, went and held the stick
and the second appellant hit him on the chest and the first appellant hit him on the head.
The evidence of the first appellant showed that she had no knowledge of what happened that
particular night of the alleged assault. It was also evident from her testimony that when she
conducts her prayer meetings, she at times falls into a trance and she does not realize what she
does or says. The trial magistrate convicted the appellants on a charge of assault. On appeal, the
High Court observed that the evidence established that the complainant voluntarily attended the
first appellant's prayer meeting so that the evil spirit in her would be exorcised. She willingly
submitted herself to stand in the nude before the crowd. She offered no resistance when, in the
process of casting away the evil spirit, the first appellant had to hit her with the stick. If she had
any objection to raise, the only sensible thing she could have done was to have withdrawn herself
away from the meeting.
HELD PER OSEI HWERE J
“by sec 86(1) of Act 29, a person commits an assault and battery when, essentially, there does
not exist the other person's consent. Consent, therefore, generally negatives any offence of
assault. I say "generally" because I concede that the victim's consent cannot be a defense for an
assault if the blows inflicted are, in the opinion of the court likely to cause bodily harm. "Bodily
harm," of course, includes, any hurt or injury calculated to interfere with the health or comfort of
the victim and, although it need not be permanent, it must be more than merely transient and
trifling.”

HAYSTEAD v CHIEF CONSTABLE OF DERBYSHIRE [2000] 3 AII ER 890

Appellant was convicted of assault on a child when he punched its mother so hard that she
dropped the child on the floor, causing it to sustain damage to its head.
Held that he could he convicted of assault on account that his hitting the mother whether it
caused the child injury or not, was a sufficient basis for conviction for assault

R v WALKDEN (1845) 1 COX C.C. 282

An act may cause grievous harm or other injury, yet not constitute an assault. Causing a
deleterious drug to be taken by another is not an assault

ASANTE v. THE REPUBLIC

IN THE HIGH COURT, SUNYANI
FACTS: Upon a complaint by a schoolgirl that the appellant had assaulted her, an escort police
constable was detailed to go with her to invite the appellant to the police station. When they
found the appellant, the constable showed his identity card and invited the appellant to the
station. There was no evidence that the constable at any time told the appellant why he was
wanted. The appellant refused to go and the constable therefore seized the ignition key of the
appellant's lorry, thus preventing him from driving away. In his attempts to retrieve his keys, the
appellant knocked the constable down, and whilst he was on the floor kicked him, injuring him
and damaging his trousers. The appellant was convicted of two charges of assault of a police
officer and of causing damage to the property of the same. On appeal it was submitted on behalf
of the appellant, inter alia, that (1) having regard to the evidence on record the arrest was
unlawful; (2) consequently the appellant was justified in repelling the unlawful assault on him
with corresponding force in self-defence and (3) the conviction on the second charge was wrong
in law in so far as the trial court considered not the value of the damage but of the property. In
reply counsel for the respondent contended that even if the appellant could not be convicted of
assault of a police officer, there could be a conviction for the lesser offence of common assault
under section 84 of Act 29.
HELD, PER ANTERKYI J
Where, as in this case, a person is charged with this offence, it is essential for the prosecution to
prove (1) that the victim of the alleged assault is a police officer as stated in the indictment; (2)
that he was in the due execution of his duty at the material time; and (3) the conduct of the
accused as allegedly constituting the assault. In the proof that he is a police officer, evidence
showing that he is a police officer bearing a certain number, or being a police officer of a certain
rank, or showing that he has acted as a police officer is sufficient proof, under the principle of
omnia praesumuntur rite et solemniter esse acta done cprobetur in contrarium
Proof of the assault must be established by evidence of conduct of the accused as falling within
one or other of the definitions of assault in sections 86, 87 and 88 of Act 29; but proof of any act
of the accused indicating an intention to use violence against the officer would suffice.
To secure a conviction under section 205 (a) of Act 29, there must further be clear evidence from
which it could be inferred that at the material time the position of the police (peace) officer in
question was within one of the four circumstances stated in that section. But it is not necessary to
prove that the accused knew that the person assaulted is a police officer if in fact he was, see R.
v. Maxwell and Clanchy (1909) 2 Cr.App.R. 26, C.C.A.; and it is not necessary to prove that the
accused knew that the officer was at the material time in the execution of his duty.

AMPOFO v. THE STATE [1967] GLR 155-167

HIGH COURT, CAPE COAST
FACTS: Two policemen and a price inspector went to the appellant's wholesale store to invite
him to the police station to see the inspector as a result of a report made by the price inspector.
The appellant was not informed of the nature of the report, and he refused to go. The price
inspector then threatened to arrest the appellant for obstructing him in the execution of his duty,
whereupon the appellant asked them all to leave and made a remark about which there was a
conflict of evidence as to the exact words used, but it was in the nature of, "What kind of
government has power to come and arrest me?" This so annoyed one of the policemen that he
caught hold of the appellant and a struggle ensued. The appellant was convicted on two counts
of assaulting two police officers while acting in the execution of their duty contrary to Act 29, s.
205 and was sentenced to three months' imprisonment with hard labour. He appealed against the
conviction and sentence.
HELD, PER ARCHER J allowing the appeal;
In the present appeal before me, it appears that according to the evidence of Constable Awuni,
when the appellant said, "What kind of government has power to come and arrest me?" the first
prosecution witness then went and tapped him and told the accused to be patient and to go with
him. Was the tapping a formal arrest as a result of the challenge thrown by the appellant by
saying what kind of government had power to arrest him or was the tapping the result of an
offence committed? On the evidence it may be said that as soon as the first prosecution witness
tapped the appellant, he committed an assault on the appellant without justification and the
appellant was entitled to resist the arrest in self-defence.

I have read the judgment of the learned district magistrate very carefully and it seems to me that
he did not give proper attention to the evidence for the appellant and his witnesses. He merely
dismissed their evidence as a concoction whereas there were fundamental principles affecting the
liberty and freedom of the subject on the one hand and the powers of the police to arrest on the
other hand.
For the reasons which I have already given, the appeal is allowed. The conviction is quashed
and the sentence is set aside. The appellant is acquitted and discharged.

DPP v. K (A MINOR) [1990] 1 WLR 1067

FACTS: A Minor, which was in the context of a chemistry class, a 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 hot
air hand drying machine in the lavatory and went back to the class. Another boy went to the
lavatory to wash his hands. He turned on the dryer and the acid was injected into his face,
leaving him permanently scarred
HELD: 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.

R v ST GEORGE [1840] 9 C&P 483

FACTS: The Defendant (St. George) got into an argument with the victim, a Mr Durant. During
the course of this argument, the Defendant took out a gun and pointed it at Mr Durant. The gun
was, in fact, not loaded. He was in any event prevented from taking further action by a third
party. The Defendant was prosecuted for assault.
HELD
It was held by the court that in the circumstances the Defendant was guilty of an assault.
Threatening someone with a gun, regardless of whether the gun was loaded, would amount to a
threat as long as the victim thought that the gun was in fact loaded. On the other hand, where the
victim was aware that the gun was not loaded, but was still afraid, that fear would be
unreasonable and therefore there would be no assault in those circumstances. The test applied is
subjective, but there must be at least a subjective possibility that the threat against the victim can
be carried out.

87. Assault without actual battery

BRUCE-KONUAH v THE REPUBLIC [1967] GLR 611
FACTS: a quarrel ensued between the appellant, a medical doctor, and his neighbors over a
hedge bounding their respective lands. At a point in the quarrel, the neighbor’s wife, according to
the prosecution, said to the appellant that certain nurses had said that he had been misbehaving at
the hospital. This apparently was too much for the appellant to bear because upon hearing it, he
jumped over to the neighbor’s side of the hedge and chased the neighbor’s wife. The neighbor’s
wife alleged that the appellant slapped her. This was denied by the appellant. The story of the
neighbor’s wife appeared to have been accepted by the trial magistrate because he convicted the
appellant for assault and battery. He appealed
HELD: it was held that by Act 29, s. 85, "assault" covered assault with battery and assault
without battery. On his own showing the appellant was guilty of assault without battery and his
conduct in rushing at the complainant with apparent intention to cause her harm and intending to
put her in fear of danger, fell squarely within the illustration of assault in Act 29, s. 87 (2)(b)

88. IMPRISONMENT
ASANTE v. THE REPUBLIC [1972] 2 GLR 177-197
FACTS: Upon a complaint by K. that the appellant had assaulted her, an escort police constable
was detailed to go with K. to invite the appellant to the police station. When they found the
appellant, the constable showed his identity card and invited the appellant to the station. There
was no evidence that the constable at any time told the appellant why he was wanted. The
appellant refused to go and the constable therefore seized the ignition key of the appellant’s lorry,
thus preventing him from driving away. In his attempts to retrieve his keys, the appellant
knocked the constable down, and whilst he was on the floor kicked him, injuring him and
damaging his trousers. The appellant was convicted of two charges of assault of a police officer
and of causing damage to the property of the same. On appeal it was submitted on behalf of the
appellant, inter alia, that (1) having regard to the evidence on record the arrest was unlawful; (2)
consequently the appellant was justified in repelling the unlawful assault on him with
corresponding force in self-defence and (3) the conviction on the second charge was wrong in
law in so far as the trial court considered not the value of the damage but of the property. In reply
counsel for the respondent contended that even if the appellant could not be convicted of assault
of a police officer, there could be a conviction for the lesser offence of common assault under
section 84 of Act 29.

HELD, PER ANTERKYI J: where, as in the instant case, a person is charged with the offence of
assaulting a police officer in the execution of his duty, the prosecution must prove (1) that the
victim of the alleged assault is a police officer, (2) that he was in the due execution of his duty at
the material time and (3) the conduct of the accused constituting the offence. But it is not
necessary to prove that the accused knew that the person assaulted is a police officer if in fact he
was and it is not also necessary to prove that the accused knew that the officer was at the material
time in execution of his duty.
Section 10 (a) of the Criminal Procedure Code, 1960 (Act 30), empowers a police officer to
arrest, without a warrant, any person whom he reasonably suspects of having committed a felony
or misdemeanour, but the person to be arrested must first have been put under lawful arrest. In
the instant case, the police officer failed to put the appellant under lawful arrest by informing him
of the cause of the arrest, and was not therefore legally acting in execution of his duty as a police
officer but was committing on the appellant an assault by imprisonment within Act 29, s.88 by
confining him to the area bounded by the body of his vehicle, and it is irrelevant that K., the
complainant, was present at the scene of the arrest.
On the facts, the police officer did commit the prior assault of imprisonment in refusing to leave
the spot where the appellant was and in taking possession of his ignition key, which was not an
integral part of the process of arresting the appellant. The appellant was therefore entitled to
compel the police officer to let him have access to his vehicle to enable him to free himself from
the continuing assault by imprisonment. There being an ordinary or technical assault by the
police officer, a plea of self-defence was available to the appellant in the circumstances.
It is incorrect to argue that where a charge of assault of a public officer under section 205 of the
Criminal Code, 1960 (Act 29), has failed there could still be an alternative conviction of a
common assault under section 84 of the same Act. This is so because section 154 (1) and (2) of
the Criminal Procedure Code, 1960 (Act 30), deal with offences lesser than the one charged.
Offences under Act 29, ss. 84 and 205 are both misdemeanours carrying a term of imprisonment
not exceeding three years and neither of them can therefore be an offence lesser than the other.
The provisions of section 172 of Act 29 deal with the value of the damage and not the value of
the property damaged and unless the damage to the property is proved to be irreparable, the
value of the damage cannot be said to be the value of the property. To 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 Act 29, and also without just cause or excuse.
This they failed to do.

CRIMINAL HARM TO THE PERSON

Section 1 defines harm as a bodily hurt, disease, or disorder whether permanent or temporary
SECT76. Harm is unlawful which is intentionally or negligently caused without any of the
justifications mentioned in Chapter One of this Part.
SECT81 (b) the 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 the grief, terror, or emotion
has been caused by that other person whether with intent to cause harm or otherwise;

R v NWAOKE (1939)5 WACA 120

Appellant pointed a juju at his ex-wife and threatened that the juju would kit I her unless she
returned the 'head money' he had paid to marry her. The deceased was so terrified by this threat
that she hanged herself a few days later. He was convicted of manslaughter and he appealed.
Held: although the woman's act had been induced by her terror, the death was not the act of the
appellant. Conviction quashed.

69. CAUSING HARM

BROBBEY& ORS v THE REPUBLIC [1982-83] GLR608
FACTS: 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.
In the heat of the altercation, the complainant ripped the ID card of the first policeman.
The medical report tendered by the prosecution showed that both the complainant and his wife
had sustained abrasions in their confrontation with the police. The trial magistrate found that, (i)
the force used by the police was excessive and (ii) they tore the complainant’s knickers and stole
his money. He therefore sentenced each of them to one month's prison term with hard labor.
HELD, PER Twumasi J., (as he then was): 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]

R v CLARENCE 22 QBD 23 [1886] ALL ER 133

Coram: Stephen J, Baron Pollock, AL Smith J
FACTS: Clarence, the defendant, had sexual intercourse with his wife knowing that he was
infected with gonorrhoea. He passed the infection to his wife and was convicted under s.47 and
s.20 of the Offences Against the Person Act 1861 and appealed. It was held that he was not
guilty because an infliction under the section could only be by way of an assault.
HELD
Conviction was quashed. The wife had consented to sexual intercourse and therefore no technical
assault or battery occurred. The court held that these were necessary ingredients of both ABH
and GBH. (the position in relation to GBH has subsequently changed). It was irrelevant that the
wife was unaware of the infection or whether she would have removed consent had she known
since at the time a wife was deemed to consent to sexual intercourse with her husband.
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.

R v IRELAND 1997 Crim LR434

Appellant was convicted on his own plea of 3 counts of assault occasioning actual bodily harm.
The facts showed that he had made a large number of telephone calls to 3 women and whenever
they answered the phone, he remained silent and did not speak. This conduct caused the women
psychological harm as it created grave apprehension of terror of the telephone in them. He was
prosecuted for causing psychological harm. He appealed against his conviction.
HELD: that by telephoning them, he put himself in contact with them and caused them
apprehension by remaining silent. Further, that whether silence or words ensued, the threatening
nature of the calls and the damage they suffered by having "the telephone man” calling
constantly was real and would be sufficient for purposes of committing the offence.
CAUSING HARM WITH THE USE OF AN OFFENSIVE WEAPON

REPUBLIC v DARKO [1971] 2 GLR 227

HIGH COURT, CAPE COAST
FACTS: The indictment preferred against the accused person accuses him of the offence of
attempting to cause harm by the use of an offensive weapon, contrary to sections 18 (1) and 70 of
the Criminal Code, 1960 (Act 29). The prosecution’s case in support of the offence as presented
by the first prosecution witness and the second prosecution witness, the material prosecution
witnesses, reveals that on the night of 27 March 1970, the accused with a loaded double-barrel
gun, exhibit A, went to the house of the first prosecution witness who was conversing with the
second prosecution witness in a room and shot at the first prosecution witness, but the gun did
not fire. As a result of a struggle which later followed the unsuccessful attempt, both the first and
second prosecution witnesses over powered the accused and seized exhibit A from him.
HELD, PER EDWARD WIREDU J
Section 76 of Act 29 defines unlawful harm as follows: “Harm is unlawful which is intentionally
or negligently caused without any of the justifications mentioned in Chapter 1 of this Part.”
When the definition of unlawful harm is applied for analysis with the two offences contemplated
under sections 46 and 70 of Act 29, we have the following: Attempted murder is an attempt to
cause intentional death by harm intentionally inflicted. Attempted causing harm is an attempt to
cause intentional harm by the intentional use of an offensive weapon. Therefore, most of all the
essential ingredients of attempting to cause harm form part of the essential ingredients of
attempted murder, but the characteristic difference between the two lies in the nature of the
“intent.” In attempted murder not only must the attempt aim at causing unlawful harm but that
the harm must aim at causing death, whereas in the case of attempting to cause harm the attempt
must aim at causing harm and no more.

BEHOME v THE REPUBLIC [1979] GLR 112

HIGH COURT, SUNYANI
FACTS: The appellant had suspected for some time that his wife had been having an affair with
N. On 21 February 1974 the appellant left home on the pretext that he was travelling to
Dormaa-Ahenkro. That same night he led five other persons to the village to watch the conduct
of his wife and first prosecution witness. and apprehend them. 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 first prosecution witness came to the scene the appellant demanded that
he should pacify him with ¢40.00 as ayefare otherwise he would kill first prosecution witness.
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 first prosecution witness on the ground that he (first
prosecution witness) 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. The appellant and the other members of the watch
were later on arraigned before the circuit court on various counts of, inter alia, conspiracy to
commit crime, namely, unlawful entry, robbery and causing harm. The appellant alone was
further charged on three counts of causing unlawful damage and one count of threat of death
contrary to sections 172 (1) (a) and 75 of the Criminal Code, 1960 (Act 29), respectively. On
appeal against his conviction and sentence counsel submitted, inter alia, that the conviction for
conspiracy to commit crime was wrong because the entry was justifiable in law and also that the
conviction for threat of death was wrong because the charge was bad and the particulars
defective in that they provided that the appellant “did threaten [N.] with unlawful harm, with
intent to put that person in fear of death.” Counsel also submitted that the evidence could not
support the charge of robbery because there was no proof that N. had possession of or some
property in the ¢50.00 paid to the appellant nor was there any proof that the assaults were for the
purpose of stealing the sum of ¢50 or with intent to overcome resistance to any stealing. In reply
counsel for the Republic expressed his inability to support the convictions for conspiracy,
unlawful entry and robbery. He also “expressed doubt whether a threat of death which was
contingent upon an event would constitute an offence under section 75 of Act 29.
HELD, PER OSEI-HWERE J allowing the appeal in part.
Where an accused was charged with threat of death under section 75 of Act 29 the particulars
must disclose that he threatened to kill with an intent to put the complainant in fear of death and
not that he threatened the complainant with unlawful harm. However, in the instant case the
defect was amply cured by the evidence of the prosecution. In the result, since the statement of
offence sufficiently informed the appellant of his charge the proviso to section 26 (12) of Act 372
would be applied to uphold the conviction because there had been no grave miscarriage of
justice. Agyem v. The Republic, High Court, Sunyani, 21 December 1976, unreported,
distinguished.
Obiter. A threat which might be carried out upon some contingent event could ground an
offence under either section 74 or 75 of Act 29. In the offence of threat of death, the actus reus
would consist in the expectation of death which the offender creates in the mind of the person he
threatened while the mens rea would also consist in the realisation by the offender that his threat
would produce that expectation. It mattered not, therefore, whether the threats were related to the
present or the future
SEE THE FOLLOWING SECTIONS
72. Negligently causing harm.

73. Dangerous thing, negligently causing harm or danger

SECT 81 (d) except as in this section expressly provided, a person is not excused from liability
to punishment for causing harm to another person, on the grounds that the other person
personally, by trespass, negligence, act, or omission, contributed to causing the harm.

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 69a FOR FEMALE GENITAL MUTILATION

NEGLIGENTLY CAUSING HARM TO CHILDREN – SECTION 72

R v SENIOR (1898) 19 COX C.C. 219

Held per Lord Russell of Killowen C.J.
The word "wilfully", when used in the context of an offence prohibiting cruelty to children,
"means that the act is done deliberately and intentionally, not by accident or inadvertence, but so
that the mind of the person who does the act goes with it"

MAMAH HAUSAH v. THE REPUBLIC [1973] 2 GLR 293

FACTS: The appellant is the father of a five-year male child attending a Muslim school in Cape
Coast. On the day in question the mother of the boy left him with the appellant when she was
going to the market. The evidence shows that the appellant left the child alone in the compound
of the court’s premises where he works as a caretaker and went out to buy a newspaper. In his
absence the boy strayed into the streets and was knocked down by a taxi cab. He was
immediately rushed down to the hospital where he was treated for the injuries he sustained. The
matter was later reported to the police and the appellant was charged and convicted with the
offence of unlawfully exposing the child under section 71 of Act 29 of 1960. On appeal to
the High Court against his conviction on the ground, inter alia, that the trial magistrate
misdirected himself on the law of unlawful exposure of a child
HELD, PER EDWARD WIREDU J Dismissing the appeal
There is no doubt that the victim of the accident was a child aged under seven and was under the
care of the appellant at the material time. There is also no doubt that when the appellant was
leaving to go and buy a newspaper, he left the victim to his fate unattended thereby giving him a
careless freedom whereupon he strayed into the street involving himself in a motor accident. The
question here is whether the conduct or behaviour of the appellant in leaving the victim under
those circumstances amounts to unlawfully exposing him to danger within the meaning of
section 71? In other words, did the appellant’s conduct even though innocent of ill intention fail
to live up to the standard set by the law? I have no hesitation in giving an affirmative answer to
the question posed, because the appellant negligently left the child without proper care instead of
leaving him with another grown-up person when going out to buy the newspaper and by his
neglect the child strayed into the streets thereby sustaining an injury. It follows that the
appellant’s behaviour on the particular facts of the case is caught by the provisions of section 71
of Act 29 and he was therefore rightly prosecuted and convicted. The appeal against conviction
therefore fails and it is accordingly dismissed.

OKUTU v. THE REPUBLIC [1975] 1 GLR 264-267

HIGH COURT, KOFORIDUA
FACTS: The appellant had a breakdown whilst driving his truck on a trunk road. He left the
truck (which had no warning lights) parked in such a way that it occupied [p.265] most of the
road. Subsequently, a car ran into the truck, thereby causing the occupants injuries. The appellant
was therefore charged and convicted before a circuit court with the offences of (a) leaving a
vehicle in a dangerous position under sections 52 and 120 of the Road Traffic Ordinance, 1952,
and (b) negligently causing harm arising from dangerous parking under section 72 of Act 29. He
appealed against the conviction and sentence
HELD PER QUARSHIE-SAM J dismissing the appeal
I am of the view that even if the first charge was improperly laid, as I have so found, there was
evidence before the court on which a charge under section 72 of the Criminal Code, 1960 (Act
29), could be brought for negligently causing harm. I therefore disagree with learned counsel's
proposition that with the discharge of the first charge, the second and third charges must
automatically fall. I take this view which I think is supported by section 13 (1) of Act 29 which
reads:
"If a person intentionally or negligently causes any involuntary agent to cause an event, that
person shall be deemed to have caused the event. 'Involuntary agent' means any animal or other
thing, and also any person who is exempted from liability to punishment for causing the event,
by reason of infancy, or insanity, or otherwise, under the provisions of this Code."
In other words, if there is evidence that the appellant so dangerously parked his truck that the
accident was the direct result of that dangerous parking then the appellant would be culpable. I
therefore do not support the submission of learned counsel that the third prosecution witness, the
driver of the moving vehicle, and not the appellant should have faced the charges on the ground
that the appellant was not in control and not even at the scene when the impact took place. In a
case like this I do not think it is open to the appellant to plead contributory negligence as a
defence, if there is evidence of dangerous parking. The whole case then rested on that issue of
dangerous parking which I think the learned trial circuit judge dealt with adequately before
coming to her conclusion.

R v STONE and DOBINSON (1977) 64 Cr. App. R. 111

FACTS: Mr Stone was blind, partially deaf and of low intelligence and lived with his
housekeeper, Dobinson, who had learning difficulties. They were then joined in their property by
Mr Stone’s sister as their lodger, who was suffering with anorexia nervosa at the time. His sister
also suffered from a number of mental health conditions. The defendants were convicted of
manslaughter. The defendants appealed on the ground inter alia that the deterioration in her
condition was not something for which they could be responsible.
HELD: The court held that the defendants had assumed responsibility for the victim upon
agreeing to look after her. For Mr Stone, she was his blood relative (his sister). Dobinson had
assumed a responsibility for the victim by agreeing to care for her and by providing her with
food at the beginning of her time living with them. This meant that their omission to provide this
care and to alert the relevant medical authorities to her condition, made them liable for her death.
PER GEOFFREY LANE LJ said: ‘This was not a situation analogous to the drowning stranger.
They did make efforts to care. The jury were entitled to find that the duty had been assumed.
They were entitled to conclude that once Fanny became helplessly infirm, as she had by July 19,
the appellants were, in the circumstances, obliged to summon help or else care for Fanny
themselves.’
SECTION 18

BIGAMY AND OTHER SIMILAR OFFENCES

Definition of Bigamy
Section 263(1) of the Criminal code: A person commits bigamy who, knowing that a marriage
subsists between him or her and any person, goes through the ceremony of marriage, whether in
Ghana or elsewhere, with some other person.
Section 265: (2) A person may be guilty of bigamy or of an offence under section 264 if, having
contracted a monogamous marriage with any person, he marries or purports to many any other
person under customary law, or if, being married to any person by customary law, he goes
through a monogamous ceremony of marriage with any other person.

Quaye v. Kuevi (1934) D. Ct.

Held; where parties have agreed to cohabit as husband and wife, a valid customary marriage may
be inferred from such conduct.
Per Deane C.J., “ … although it is highly desirable that a party seeking to establish a marriage
should be able to point to the giving of the girl’s parents and acceptance by them of a rum as
evidence of their consent to the marriage, yet the inability to show that such a ceremony has
taken place would not in my view of itself be sufficient to invalidate a marriage if the consent of
the parties to the marriage were proved by other means and if it were also proved that the parties
had lived together I the sight of the world as man and wife.”

R v. Sarwan Singh
Held: a polygamous or a potentially polygamous marriage cannot be regarded as a valid first
marriage in prosecuting cases of bigamy under Section 57 of the Offences against the person act.
SECTION 19

OFFENCES AGAINST THE PEACE

Act 29, Section 205:
Whoever—
(a) assaults, obstructs, molests, or resists, or aids or incites any other person to assault, obstruct,
molest, or resist any public or peace officer, or any person employed by a public or peace officer,
acting or proceeding to act in the execution of any public office or duty or in the execution of any
warrant or legal process; or
(b) uses any threatening, abusive, or insulting language, or sends any threatening or insulting
message, or letter, to any peace officer in respect of his duties, shall be guilty of a misdemeanour.
Asante v. The Republic [1972] GLR 177

Facts: A police officer was assigned to escort one lady who had filed a report of assault, to effect
an arrest on the appellant. Upon their arrival, the police officer failed to inform the appellant as
to the reason why he was being summoned to the police station. This led to a scuffle leading to
the appellant knocking down and causing injury to the police officer. He was therefore charged
with and convicted of assaulting and causing damage to a police officer. He appealed against his
conviction.
Held; “section 10(a) of the Criminal Procedure Code, 1960 (Act30) empowers a police officer to
arrest, without a warrant, any person whom he reasonably suspects of having committed a felony
or misdemeanour, but the person to be arrested must first have been put under lawful arrest. In
the instant case, the police officer failed to put the appellant under lawful arrest by informing him
of the cause of the arrest, and was not therefore legally acting in execution of his duty as a police
officer but was committing on the appellant an assault by imprisonment within Act 29, s. 88 by
confining him to the area bounded by the body of his vehicle, and it is irrelevant that K., the
complainant, was present at the scene of the arrest.”

Beatty v. Gillbanks [1882] 9 QBD 308

Facts: The Salvation Army was given an order preventing them from embarking upon a parade
over fears that an opposition group would attack them. Thus, the appellants sought to quash this
order.
Held: (divisional court): If this disturbance of the peace was the natural consequence of the acts
of the appellants, they would be held liable, and the justices would have been right in binding
them over.
Order quashed.

SECTION 20

Hindering Burials
Hindering burial of dead body.
Section 285 of Act 29 states that a person who unlawfully hinders the burial of the dead body of a person, or without
lawful authority disinters, dissects, or harms the dead body of a person, or being under a duty to cause the dead body
of a person to be buried, fails to perform that duty. commits a misdemeanour.

FOLI VIII & ORS. V THE REPUBLIC [1968] GLR 768

 Cremation without permission from medical officer of health
amounts to causing harm to corpse

Unwholesome food

Selling unwholesome food

Section 286 of Act 29 provides that a person who sells, or prepares or offers for sale, as being tit for consumption as
food or drink, a thing which that person knows or has reason to believe that it is in a condition from putrefaction.
adulteration, or other cause, as to be likely to be noxious to health commits a misdemeanour.

Noxious Trade
(Amended by Act 554, section J 8; Schedule)
Carrying on of noxious trade, and other interference with
public rights

Section 287 of Act 29 provides as follows, “a person who, without lawful authority or excuse the proof of which lies
on that person,
(a) carries on a noxious, an offensive, or a noisy business at a place, or causes or permits a noxious or an offensive
matter to be collected or continue at a place. Or so keeps animals at a place, as to impair or endanger the health of
the public inhabiting or using the neighbourhood of that place, or as to cause material damage to the lands, crops,
cattle, or goods of the public. or as to cause material interruption to the public in their awful business or
occupations, or as to materially affect the value of their property; or

(b) so makes, keeps, or uses an explosive matter, or a collection of water, or any other dangerous or destructive
thing, or a building, an excavation, open pit, or any other structure, work, or place, or so keeps an animal or permits
it to be at large, as to cause danger of harm or damage to the persons or property of the public. or a well. spring, or
reservoir, so as to deprive the public of the benefit of it, or
(Affected by Act 572, Schedule 2)
(c) corrupts or fouls the water of any public well. tank, spring, reservoir, or place used or intended for supplying
water to man or for fish culture, commits a criminal offence and is liable to a fine not exceeding twenty-five penalty
units and for a continuance or repetition of that criminal offence. commits a misdemeanour.

Explanation as to carrying on of noxious trade

Section 288 of Act 29 states that as regards the nuisance of carrying on a noxious, offensive, or noisy business, at a
place, or of causing or permitting noxious or offer -ive matter to be collected or continue at a place, or of keeping
animals at a place as mentioned in this Chapter,
(a) "business" includes not only a trade, manufacture, work, business, or an occupation carried on for gain, but
also a continued or frequent repetition of an act or series of acts of any kind; and
(b) it is necessary, in order that a person may be punishable in respect of that nuisance, that the prejudice or danger
caused by it should extend to persons inhabiting or occupying, under separate tenancies, not less than three houses
or other tenements.

Explanation as to obstruction of public way

Section 289(1) of Act 29 states that a person shall not be convicted, within the meaning of this Chapter, of
obstructing the public use of a public way or work by reason only of that person being a party to a meeting or an
assembly assembled in, or on or near any public way or work. Unless the purposes of the assembly are or include
the obstruction of the public by force or threats or show of force.
Subsection (2) states that for the purposes of subsection (l), "Obstruction" of the public use of a public way or work
includes the making or using of a fetish or charm for the purpose of preventing a person from using that way or
work.

Drunken, Riotous and Disorderly Conduct

Habitual drunkenness
Section 290 of Act 29 provides that a person who. having been thrice convicted under an enactment for having been
drunk and behaving violently or indecently or in a disorderly manner is, within one year from the first conviction,
found drunk, in a public place, commits a misdemeanour.

Drunk or disorderly (amended by NLCD 398, paragraph 18)

Section 291(1) of Act 29 provides as follows, A person who is drunk, riotous, quarrelsome or disorderly in a place
licensed for the sale of intoxicating liquors or kept for public refreshment, resort or, entertainment, and fails to leave
that place on being requested to do so by the owner, manager, or occupier, or the agent or servant of that owner,
manager or by a police officer commits a misdemeanour.
Subsection (2) then states that a police officer shall on the demand of the owner, manager, occupier, agent or servant
assist in expelling the drunken, riotous, quarrelsome or disorderly person from that place.

Penalty for harbouring thieves

Section 292 (l) of Act 29 provides that a person commits a misdemeanour who occupies or keeps a lodging-house,
public-house, or any other house or place where intoxicating liquors are sold, or a place of public entertainment or
public resort, and
(a) knowingly lodges or knowingly harbours thieves or reputed thieves, or prostitutes or knowingly permits or
knowingly suffers them to meet or assemble in it, or
(b) knowingly permits or allows drunkenness or any other disorderly conduct in it, or
(c) knowingly allows the deposit of property in it having reasonable cause for believing it to be stolen.
Subsection (2) of the same section states that a licence for the sale of an intoxicating liquor, or for keeping a place of
public entertainment or public resort, which has been granted to the occupier or keeper of those premises or place,
may be forfeited by the Court on the occupier's or keeper's first conviction of a criminal offence under subsection(
1).

Subsection (3) provides that on a second conviction for that criminal offence the licence shall be forfeited, and that
person is disqualified for a period of two years from receiving that licence.

Subsection (4) also states that where two convictions under this section have taken place within a period of three
years in respect of the same premises, whether the persons convicted were or were not the same, the Court shall
direct that for a period not exceeding one year from the date of the last of those convictions that type of licence as
aforesaid shall not be granted to a person in respect of those premises. (Amended by Act 554, section 18;
Schedule; affected by Act 572,
Schedule 2)

Subsection (5) also states that a licence granted in contravention of this section is void.

Subsection (6) provides that the holder of a licence who is brought before a Court in pursuance of this section, shall
produce the licence for examination; and, if the licence is forfeited, the holder shall deliver it up.

Subsection (7) states that a holder who willfully neglects to produce the licence as required under subsection (6) is,
in addition to any other penalty, liable to a fine not exceeding ten penalt units.

Drumming and Firing Guns

Using houses, in town for drumming

Section 293(1) of Act 29 provides that an occupier of a house, building, yard, or any other place situate in a town.
who, without a licence in writing from a district assembly permits persons to assemble and beat or play or dance in
it to a drum, gong, tom-tom, or any other similar instrument of music, commits a criminal offence and is liable to a
fine not exceeding five penalty units.

Its subsection (2) states as follows, a police officer may enter that house, building, yard, Or other place where those
persons have assembled, and warn them to depart and may seize and carry away the drums, gongs, tom-toms, Or
other instruments, which shall be forfeited. (Amended by Act 554, section 18; Schedule; affected by Act
572, Schedule 2)
Subsection (3) also provides that a person who, after being so warned, does not depart forthwith except the persons
actually dwelling in the house or building, commits a criminal offence and may be arrested, without warrant, by a
police officer or person acting in aid of the police officer and that person is liable to a fine not exceeding two
hundred and fifty penalty units. (Amended by Act 554, section 18; Schedule; affected by Act 572,
Schedule 2)

Drumming near Court during sitting

Section 294 of Act 29 provides as follows, a person who during the sitting of a Court. and after being warned by a
police officer or an officer of the Court to desist, beats or plays a drum, gong, tom-tom, or any other instrument, or
makes a loud noise of' any kind within a radius of three hundred yards from the place where the sitting is held,
commits a criminal offence and is liable to a fine not exceeding five penalty units.
(Amended by Act 554, s. 18; Schedule; affected by Act 572, Schedule 2)

Drumming with intent to challenge or insult

Section 295 of Act 29 states that a person who beats a drum with intent to challenge or provoke any other person to
commit a breach of the peace, or with intent to insult or annoy any other person, commits a criminal offence and is
liable to a fine not exceeding twenty-five penalty units.

Nuisances and Obstructions

(Amended by Act 554, section 18; Schedule; affected by Act 572,
Schedule 2)

Throwing rubbish in street

Section 296 of Act 29 states categorically that a person commits a criminal offence and is liable to a fine not
exceeding ten penalty units who
(a) in a town places, causes or permits to be placed, a carrion, filth, dirt, refuse, or rubbish, or any other offensive or
otherwise unwholesome matter, on a street, yard, an enclosure, or open space, except at a place set apart by the local
authority or the health officer for that purpose; or
(b) in a town does an act which constitutes a nuisance in a public place or open space, or in a place which is an
appurtenance of or adjoins a dwelling-house; or
(c) willfully defaces a public lawful notice, or removes the notice from a place where it is lawfully affixed; or
(d) without the consent of the owner or occupier of it affixes or attempts to affix a placard, paper, or thing on a
building, wall, fence, pillar, or post, or writes on, soils, or marks the building, wall, fence, pillar, or post; or
(e) Repealed by Post and Telecommunications Corporation Decree, 1975 (NRCD 311).
(f) unlawfully releases cattle lawfully impounded, or pulls down, damages, or destroys the pound where cattle are
lawfully impounded: or
(g) in a town willfully or wantonly, and after being warned to desist, makes a loud or an unseemly noise in a manner
that causes annoyance or disturbance of a person; or
(h) in a town, without a licence in writing from the Minister or a local authority beats or plays a drum, gong,
tom-tom, or any other similar instrument of music between eight o'clock at night and six in the morning; or
(i) in a town throws or discharges a stone or any other missile in or into a public place; or ;;1
U) is drunk and is disorderly or behaves violently or indecently in a prison or Court or public place; or
(k) behaves irreverently or indecently in a church, chapel, mosque, or any other place appropriated for religious
worship: or
(I) disturbs or molests a minister of religion while celebrating a religious rite or office in a public place, or a person
assisting or attending at the celebration of that rite or office: or

MATTHEWS & ORS v R (1934-39) 30 COX CC 27

Facts: Appellants committed disturbance during a church service
because they alleged that the manner of conducting the service was
contrary to the rituals of the Church of England. They therefore
argued that they had not disturbed a 'divine service '.
Offences Against Public Order. Health and Morality 229
Held: The court held that the law was intended to protect clergymen from
disturbance in the performance of their duties and has no reference
to whether or not they perform them properly.

(m) behaves irreverently or indecently or insultingly at or near a funeral or in a near a public burial ground during
the burial of a body: or
(n) wantonly extinguishes the light of, or destroys or damages, a street lamp: or
(0) willfully obstructs or impedes or delays a person employed in the working of a telegraph, or in the delivery of a
telegram, in the execution of that duty; or
(p) by obstructing a public way, willfully prevents or hinders the free passage of any other person or of a vehicle; or
(amended by NLCD 398, paragraph J9(b)), also (amended by the Ghana Highway Authority
Decree, 1974 (NRCD 298) paragraph 51)
(q) without the consent of the local authority or the Ghana Highway Authority, places or leaves a thing in a public
way to the obstruction, danger, or annoyance of users of that public way; or
(r) being the occupier of any land or building situate in a town, does not clear and keep free from dirt, under-bush,
underwood, weeds, high grass, rubbish, rags, broken bottles, refuse, and an offensive matter filling up the holes with
stones, gravel or other like materials, the streets or roads, at the front, back, and sides of it, with the drains, gutters,
and channels on it; and, if the building is unoccupied, the owner shall for this purpose be deemed the occupier: but
where
there are two lots of land contiguous to a street, road, drain, gutter, or channel, and facing each other, the occupier of
each is responsible for keeping clean only the half of the street or road, and the drain, gutter, or channel nearest to
the occupier's lot; or
(s) in a town willfully or negligently causes or permits a vehicle, or a thing carried by the vehicle, or cattle, to
damage a drain, ditch, or trench, at the side of a street, or a bridge, or a part of it respectively: or (amended by
the Ghana Highway Authority Decree, 1974 (NRCD 298),paragraph 51)
(t) in a town, without the written consent of the local authority or the Ghana Highway Authority, willfully displaces
or takes up or damages the pavement, stones, or material of a public way, or attempts to change or obstruct an outer
course; or
(u) assembles with other persons in a public place, or in an open space near a public place. for an idle, a vicious, or
disorderly purpose, or otherwise than in the regular performance or in pursuance, of a lawful calling or object, to the
annoyance or obstruction of a passenger or person frequenting the public place or of a person living in the
neighbourhood of the public place or open space and does not move away when required by a constable; or
(v) suffers to be at large, unmuzzled, a ferocious dog of which that person is the owner or has the charge, or sets on
or urges a dog to attack or put in fear any other person or cattle; or

BULLEY-NEEQUAYE v THE STATE [1965] GLR 424

Knowledge by appellant of ferocity of her dogs is not an
essential element in the offence because the offence is one of strict
liability. All that should be proved are: (1) Appellant was owner or
in charge of dogs at the material date; (2) the dogs were ferocious;
and (3) the dogs were at large and unmuzzled.

(w) after public notice given by a person having authority in that behalf directing dogs or other animals to be
confined on account of suspicion of rabies, suffers any dog or an animal specified in the notice to be at large
during the time mentioned in that notice; or
(x) being called upon by an officer of a local authority, constable, or the Ghana Highway Authority or a constable, to
give aid for extinguishing or staying the progress of a fire, refuses or neglects to give that aid of which that person is
capable; or (Amended byAct 554, section 16)
(y) willfully and indecently exposes the body of that person in a public place or in the public view, or exposes the
body of that person in a place with intent to insult any person: or

EVANS v EWELS [1972] AIIER22

Where a person is charged with willfully, openly, lewdly and
obscenely exposing his person with intent to insult any female,
"person" means "penis" and not any other part of his body

(z) in a town for which there is a public slaughter-house appointed by or under an enactment, slaughters cattle or
dresses the carcass for human consumption within the limits of which the slaughter-house is appointed, except in
that slaughter-house, unless by the licence of the district assembly.

Rubbish found in front of premises

Section 297(1) of Act 29 Where a criminal offence punishable under paragraph (a) of section 296 is committed and
the offender has not been identified or discovered, the fact of a carrion or a substance mentioned in that subsection
being found in front of any premises is prima facie evidence of its having been placed there by the occupier of the
premises.
Subsection (2) states that a person found committing a criminal offence punishable under paragraphs (a) to (0), of
section 296 may be taken into custody without warrant by a peace officer, or a health officer, or by the owner or
occupier of the property on which or with respect to which the criminal offence is committed, or by the servant or
any other person authorized by the owner or occupier, and may be
(b) abets an unlawful fight. or uses or applies to any other person who is in that public place or within' sight or
hearing of it, a violent or abusive term of reproach, or detained until delivered into the custody of a constable, who
shall take that person, as soon as conveniently may be, before the Chairman ofa Tribunal or a Justice.
,
Subsection (3) also provides that a prosecution for a criminal offence under section 296 shall be commenced within
one year from the time when the criminal offence was committed:

IRELAND v THE REPUBLIC [1975] 2 GLR 16

A formal complaint to the Police does not constitute
commencement of prosecution.

Subsection (4) states that a dog in respect of which a criminal offence punishable under paragraph (u) or (v) of
section 296 has been committed may be destroyed by order of the Court. (Amended by Act 554, section 18;
Schedule; affected by Act 572, Schedule 2)

Disturbing the peace in a public place

Section 298 of Act 29 states that a person commits a criminal offence and is liable to a fine not exceeding ten
penalty units who in a public place, or in a place within sight or hearing of persons who are that place,
(a) disturbs the peace by fighting or quarrelling with any other person, or by making a loud or unseemly noise: or
(c) sings a profane, an indecent, or obscene song, or
(d) exposes defamatory or insulting writing or object, or with the intention of annoying or irritating any other
person, sings a scurrilous or an abusive song or words, whether a particular person is addressed or not. or does an
act which is riotous. indecent. disorderly. insulting behaviour. to the obstruction or annoyance of a passenger or
person in the public place.

BOSUO v TIIE REPUBLIC [1975] 1 GLR379

In this case, the court had this to say, “The gravamen of the offence is the disturbance of peace
in a
public place. The section sets out a number of acts, each of which
when done in a public place and within sight of or to the hearing of
 other persons, is capable of constituting the offence. However, each
of those acts do not constitute a separate and distinct offence. The
section creates one offence and not multiple offences.”

REPUBLIC v NANA OKYERE DARKWA 11 [1992-931 GBH.

1631, CA
Facts: The Respondent had been slapped twice by the co-accused with
whom he had had a previous altercation. Although the respondent did
not make any effort to retaliate, he was charged together with his
assailant with dog acts tending to a breach of the peace.
The High Court allowed his appeal but the prosecution
appealed to the Court of Appeal.
Held: The court dismissed the appeal that
the evidence did not support the charge as the respondent had made
no effort to retaliate when he was subjected to the unprovoked.