Defences are excuses or extenuating circumstances (i.e. factors that make an accused person’s actions excusable or less blameworthy) – that is defences operate to either excuse an accused from liability or limit his liability. They can be partial or complete.
A complete defence operates to totally exculpate the accused from liability. While a partial defence does not entirely excuse from criminal liability – it goes either to reduce a charge to a lesser offence or to reduce punishment to a lesser sentence
IGNORANCE OR MISTAKE OF FACT AND IGNORANCE OR MISTAKE OF LAW
Ignorance or mistake of fact can excuse from criminal responsibility. However, ignorance or mistake of the law cannot excuse from criminal responsibility – or as we say, ignorance of the law is no excuse – ignorantia juris non excusat
This is governed by section 29 of Act 29. R v TOLSON
NYAMENEBA v THE REPUBLIC: The appellants who were members of a religious sect had been growing “herbs of life” for four years or more. They used the herbs publicly for invocation, at their worship, for food and medicine. Upon report being made to the police against the sect, the police investigated and found the herbs to be Indian hemp. The appellants argued that they did not know at all that the herbs were indian hemp. HELD: Ollennu JSC held that, While ignorance of the law is no defence, ignorance of fact is a complete defence. He concluded that, the appellants were honestly ignorant of the fact that the herbs in question are Indian hemp and as such, a plea of ignorance of fact which under section 29 (1) of Act 29 is a good defence.
FOLI VIII v THE REPUBLIC: the appellants were charged with causing harm to a corpse they had cremated without lawful authority. One of the appellants’ ground of defence was that it was an established and long-standing custom in their area that any person, such as the deceased, who had violated custom but was not purified before dying, should not be accorded a decent burial but should be cremated. HELD: It was held that The act of cremation cannot be justified just because it is supported by a custom which is contrary to the law
IGNORANCE OR MISTAKE OF FACT/IGNORANCE OR MISTAKE OF LA-SECTION 29
⦁ A person shall not be punished for an act which, by reason of ignorance or mistake of fact in good faith, that person believes to be lawful.
Exceptions to this rule according to mensa-bonsu is when the offence is one of strict liability as seen in R v Gibson, belief is not a reasonable one as seen in R v King, the mistake does not go to the root of the offence and the defendant was negligent Nyameneba v the state– the appellants were members of a religious sect who honestly believed that the substance they were using were known as herbs of life when it was indeed Indian hemp. The appellants had been openly using the ‘herbs of life’ and voluntarily showed it to the court.
R v Tolson– The appellant married in Sept 1880. In Dec 1881 her husband went missing. 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. She was afforded the defense of mistake as it was reasonable in the circumstances to believe that her husband was dead.
Exception in R v wheat &stocks-appellants had reasonably belief that divorce had been obtained and this was held to be no defense and so they were convicted.
R v Gibson– appellant in a drunken state sexually assaulted a minor. He was convicted because offense was that of strict liability
R v King= appellant did not have reasonable belief to believe that second marriage was invalid as he did not make inquiries
⦁ A person shall not, except as in this Act otherwise expressly provided, be exempt from liability to punishment for an act on the grounds of ignorance that the act is prohibited by law.
Foli VIII v the Republic-the appellants were charged with unlawfully cremating a corpse. The appellants defence was that they were acting in accordance to their custom as the deceased failed to perform some purification rites before she died. It was held that The act of cremation cannot be justified just because it is supported by a custom which is contrary to the law
CONSENT
Consent is a common law defence and it is not expressly stated as a general defence under Act 29. In whatever form it takes, consent must be voluntarily given – that is, freely given and the person giving the consent must be of full age and capacity. Retrospective consent will not do. Consent validly obtained and sanctioned by law excuses from criminal responsibility (It is a full defence).
Consent is governed by section 14 and 42 of ACT 29. Sec. 14 sets the specific rules on consent is void or negatived – while sec. 42 sets the limits to the giving of consent.
CONSENT-SECTION 14
(a) a consent is void if the person giving the consent is under twelve years of age, or in the case of an act involving a sexual offence, sixteen years, or is, by reason of insanity or of immaturity, or of any other permanent or temporary incapability whether from intoxication
or any other cause, unable to understand the nature or consequences of the act to which the
consent is given
ILLUSTRATION
A induces a person in a state of incapacity from idiocy or intoxication, or a child under 12 yrs to consent to the hair of that person being cut off by A. The consent is void
⦁ a consent is void if it is obtained by means of deceit or of duress;
Consent is obtained by deceit or fraud if it would have been refused but for deceit or fraud – sec. 14(f)
Duress is an act done with force, harm, constraint, or threat, with intent to cause a person, against that person’s will, to do or abstain from doing an act
ILLUSTRATION
If a person induces a child to have sexual intercourse by threats of imprisonment, the consent is void
R v Williams-a choirmaster under the pretext of improving a girl’s voice had sex with her. It was held that the consent was obtained by deceit and so the consent was vitiated
R v Bolduc & Bird– 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. They were charged with indecent assault. Held: although her consent had been procured by fraud, it did not affect the nature and quality of the act, that is, the medical examination, to which she consented. Also that the second appellant’s act did not amount to indecent assault as he merely stood and looked on.
(c) a consent is void if it is obtained by or under the exercise of an official, a parental, or any other authority; and the authority which is exercised other-wise than in good faith for the purposes for which it is allowed by law, is for the purposes of this section, a power unduly exercised (Undue Influence);
Consent is obtained by the undue exercise of authority if it would have been refused but for the exercise of that authority – sec 14(f)
Re T– woman did not consent to blood transfusion under the influence of the mother because she was a Jehovah Witness. It was held that the hospital was right in giving her the blood transfusion as the refusal to give consent was because of the presence of the mother
Re Nichol– the husband of the school manager asked the victim, a 13 year old girl, to sit on his private part and she did. It was held that a person of authority taking indecent liberties although person does not resist he is still liable for assault. Here, consent was vitiated because it was under undue influence.
(d) a consent given on behalf of a person by the parent, guardian of that person, or any other person authorised by law to give or refuse consent on behalf of that person, is void if it is not given in good faith for the benefit of the person on whose behalf it is given;
Re A– refusal of consent to separate conjoined twins was brought to court and it was granted because such refusal was not for the benefit of the people involved.
(e) a consent does not have effect if it is given by reason of a fundamental mistake of fact;
(f) a consent is, for the purposes of this section, obtained by means of deceit or duress, or of the undue exercise of authority, or to have been given by reason of a mistake of fact, if it would have been refused but for the deceit, duress, exercise of authority, or mistake;
(g) the exercise of authority, for the purposes of this section, is not limited to the exercise of 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 a consent if that person did not know, and could not by the exercise of reasonable diligence have known, of the invalidity
DPP v Morgan– the appellants had sex with a friend’s wife. It was held that if such mistaken belief of consent was genuine and honest it would have been a defense. The jury did not believe their belief was genuine.
SECTION 42- USE OF FORCE IN CASE OF CONSENT
(a) the killing of a person cannot be justified on the ground of consent;
R v Cato-the appellant injected heroin and farmer died. It was held that consent was not a defense to manslaughter
R v Pike– the defendant convinced the deceased to take a drug so that he would be able to satisfy his sexual desire of having sex with her unconscious. She died and it was held that the consent obtained was not a defense.
(b) a wound or grievous harm cannot be justified on the grounds of consent, unless the consent is given, and the wound or harm is caused, in good faith, for the purposes or in the course of medical or surgical treatment;
R v Brown– the appellants achieved sexual gratification by performing sadomasochism to themselves. It was held that bodily harm was unlawful and so consent was not a defense.
R v Donovan– the girl consented to being beaten by the defendant in order to satisfy his sexual passion. It was held that it is an unlawful act to beat another person with such degree of violence that the infliction of bodily harm is a probable consequence, and when it is proved, consent is immaterial.
(c) consent to the use of force for the purpose of medical or surgical treatment does not extend to an improper or a negligent treatment;
(d) consent to the use of force against a person for purposes of medical or surgical treatment, or otherwise for the benefit of that person may be given against the will of that person by the father or mother or guardian or a person acting as the guardian, if that person is under eighteen years of age, or by a person lawfully having the custody of that person if that person is insane or is a prisoner in a prison or reformatory, and, when so given, cannot be revoked by that person;
Re W(a minor)– an anorexic minor failed to give consent to her being transferred to a facility specialized in treating eating disorders. It was held that the consent of the court overrode her refusal of consent
(e) where a person is intoxicated or insensible, or is from a cause unable to give or withhold consent, force is justifiable which is used, in good faith and without negligence, for the purposes of medical or surgical treatment or otherwise for the benefit of that person, unless a person authorised by that person or by law to give or refuse consent dissents from the use of
that force;
(f) a party to a fight, whether lawful or unlawful, cannot justify, on the grounds of the consent of another party, force which that party uses with intent to cause harm to the other party;
R v Coney– the defendant was engaged in an unlawful fight. It was held that such consent was not a defense as the act itself was unlawful
(g) a person may revoke a consent which that party has given to the use of force against that person, and the consent when so revoked shall not have effect or justify force.
PROVOCATION
Devlin gave the classic definition of provocation in R v Duffy [1949] 1 All ER 932, as:…some act, or series of acts, done…which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused subject to passion as to make him or her for the moment not master of his mind.
The philosophy behind the defence is that a person who kills in a rage or fit of anger intended clearly to kill – however, the killing was the product of extreme anger in the face of an intolerable situation – thus, the killer was not a calculating cold-blooded murderer because he did not have time to reflect on his action – his was a crime of passion or a hot-blooded crime – so he should be excused to some degree
Thus, if a person kills another intentionally it is murder – however, if a person kills intentionally but as a result of provocation, the killer will not be held responsible for murder but for the lesser offence of manslaughter
Therefore, provocation is a partial defence – and it operates only in cases of homicide – that is, the defence of provocation can only be raised by an accused who is under a charge of a crime of homicide. Section 52(a) of Act 29
It is not every kind of provocation that will suffice. To be considered, it must be provocation of an extreme kind that causes the accused to lose his power of self-control. To be considered, the extreme provocation that causes the killer to lose his power of self-control, must be prescribed by law. Provocation is governed by section 53 of Act 29
PROVOCATION-SECTION 52A
A person who intentionally causes the death of another person by unlawful harm commits manslaughter, and not murder or attempted murder, if that person
(a) was deprived of the power of self-control by an extreme provocation given by the other
person as is mentioned in sections 53
SECTION 53- The following may amount to extreme provocation:
(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;
Mere words will not suffice
ODURO v THE REPUBLIC
R v ekpo– the accused received a wound in his eye and the deceased also received a wound by a machete and fell. The accused ran up to him an inflicted a fatal wound. It was held that he was provoked not only by the wound he received but also by the attack on them by deceased and his clan
ZINTEGE v THE REPUBLIC, KUO-DEN SOBTI v THE REPUBLIC
(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;
State v Ayi Grunshie– the accused was convicted for the murder of another whiles hunting. He claimed the deceased had shot him and spoken in a language unknown as such he retaliated. The trial judge in directing the jury held that the provocation should be in such a manner that there was a threat of loss of life or grievous wound so to compel the accused to loss his self-control. He appealed from his conviction
HELD: that the jury were not properly directed but rather the provocation must be of such kind or manner accompanied by words which would deprive an ordinary man of his self- control. The court held the act to amount to provocation.
(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
Kekey v republic-
State v kwadwo fori-mere confession would not amount to provocation
Agyemang v Republic– deceased danced adowa with appellant’s wife and later went indoors. Adultery was not committed in his view
R v tekyi– appellant found wife in circumstances which pointed strongly of her committing adultery. Held that adultery was not committed in his view and so provocation would not lie
(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.
R v Konkomba– Tordo Konkomba and Kwabina Basare went out hunting. Basare returned to the village to report that he had shot Tordo Konkomba in the bush during the hunt. The next day, Tordo’s father and uncle and some other people pounced on Basare and beat him to death. They claimed that by seeing their son and nephew wailing in agony, they were provoked to kill Basare. HELD: According to Ollennu JSC, [sec 53(d)] can apply only where the assault and battery were committed “in the view or presence of” the [accused]. There is no evidence that the appellants (or either of them) witnessed the act of the shooting of Tordo Konkomba, or were anywhere within the precincts where Tordo was shot, so that they could have seen it done. Seeing the unfortunate Tordo in agony some time after he had been shot cannot relate back to the moment of shooting.
R v rose– provocation lies as assault on mother was committed in his view
EXCLUSION OF BENEFIT OF PROVOCATION-SECTION 54
Despite proof on behalf of the accused person of a matter of extreme provocation, the criminal offence shall not be reduced to manslaughter if it appear
(a) that the accused person was not in fact deprived of the power of self-control by the provocation; or
ATTA v THE REPUBLIC: the appellant caught his wife and his brother having sex. Later on he discussed the issue with the wife as to why she went in for his brother. He was not satisfied with his wife’s explanation, so he invited her to the latrine and slashed her to death with a cutlass.
He then returned to his room, took his gun and proceeded to his brother’s shop. He had a short discussion with the brother and shot him to death.
HELD: It was held that at the time he killed his wife and brother, he was not in a state of passion as to make him no longer master of his mind. And that in the circumstances, he was not deprived of the power of self-control.
Donkor v The Republic: the appellant killed the deceased out of fear that she would report him to the chief and the community for stealing her farm fruits. He argued that he was provoked by the shouts of the deceased. HELD: The defence of provocation was not available to a person causing the death of another if the person had, prior to the provocation evinced the intention to kill.
(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
ILLUSTRATION
A, who has long been seeking an occasion to fight in a deadly manner with B, kills B. here, if the jury think that A engineered a situation of being in B’s way for the purpose of taking an opportunity which might occur to fight with B, the criminal offence of A is not reduced to manslaughter by reason of the blow which A received from B.
Boateng v republic– after refusal by police to release family members after their arrest after a fight between the two factions over a piece of land, accused met deceased and a fight issued. Accused pulled out a dagger and stabbed the deceased. HELD: It was held that the accused was armed and intended to cause harm with the dagger in a fight he anticipated with the deceased
Appianing v republic-.
(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
Boakye v republic– whilst the first appellant was engaged in an unlawful fist fight with the deceased the second appellant felled the deceased with a stone he threw at him and that the first appellant continued punching the deceased even when the deceased was on the ground. The deceased subsequently died from injuries he sustained in the fight. HELD: at the time the appellant struck the deceased with the knife, the appellant was not in any mortal danger of losing his life. Furthermore, he had had enough reasonable time to cool down. His action could therefore not constitute self-defence under section 31 nor provocation under section 52 of the Criminal Code, 1960 (Act 29), respectively
R v duffy– after fight with husband, accused went away to change clothes and later hit the husband with a hatchet and a hammer. HELD: provocation will not lie because time has elapsed.
in Konkomba, it was held that the killing could not be reduced to manslaughter on the ground of provocation because such a time had elapsed between the assault complained of and the their killing of the alleged provocateur that an ordinary person would have recovered his self-control.
(d) that the accused person acted in a manner, in respect of the instrument or means used or of the cruel or other manner in which it was used, in which an ordinary person would not, under the circumstances, have been likely to act.
ILLUSTRATION
A receives a slight blow from a weaker man, B, and he beats and kicks B to death. A’s criminal offence is not reduced to manslaughter
R v lesbini– the accused went to a shooting gallery to practice. The deceased made a jocular quip (racist comment) at him and so he ran after her and shot her. It was submitted that his mental balance was impaired and therefore the effect of the taunting words on him should be considered as sufficient provocation. Held: the principles applicable to the defence of provocation were wide enough and ought not to be extended.
Sabbah v the republic– deceased went to accused farm for palmwine and accused decapitated him
Donkor v republic– accused was caught by deceased stealing and claims to have been provocated by her insults and her hitting him with palm branch
R v bedder– an impotent youth visited a prostitute in a bid to establish his virility. He failed in the proof, and the prostitute taunted him. Whereupon he killed. His appeal against conviction was dismissed that it did not constitute provocation.
Larti v republic– accused inflicted several cutlass wounds on deceased after a fight and being cooled down by mother. HELD: The court held that the defence of provocation would be denied him because of the manner in which the killing was done.
(2) For the purposes of subsection (1), “an ordinary person” means an ordinary person of the community to which the accused belongs.
Practice note 1962 2 Glr 181 S.C.: In directing the jury on the issue of provocation it is necessary to consider the community to which the accused belongs.
(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. Boakye v republic–
(4) Subsection (3) applies if it appears that the accused person intended or prepared to use those means before the accused person had received a blow or hurt in the fight that might be a sufficient provocation to use means of that kind
Boateng v republic– after refusal by police to release family members after their arrest after a fight between the two factions over a piece of land, accused met deceased and a fight issued. Accused pulled out a dagger and stabbed the deceased. HELD: It was held that the accused was armed and intended to cause harm with the dagger in a fight he anticipated with the deceased
SECTION 55-MISTAKE AS TO MATTER OF PROVOCATION
A lawful blow, arrest or any other violence may be a provocation, despite its lawfulness, if the accused person neither believed, nor, at the time of the act, had reasonable means of knowing or had reasonable ground for supposing that it was lawful.
SECTION 56-MISTAKE AS TO PERSON GIVING PROVOCATION
Where a sufficient provocation is given to the accused person by one person, and the accused person kills another person under the belief, on reasonable grounds, that the provocation was given by that other person, the provocation is admissible for reducing the criminal offence to manslaughter in the same manner as if it had been given by the person killed; but, it is not a provocation to kill a different person.
R v EKPO: In a tribal attack the accused was wounded by an arrow. He turned not knowing who shot at him and killed the deceased. HELD: The court held that since the whole group offered the provocation it would support the defense of the appellant and no doubt he committed the act while in the throes of passion.
KALIBU v THE REPUBLIC: the appellant were in a fight with an opposing clan. Several members of both groups were injured and one died. The appellant was convicted for his murder. HELD: The court held that the defence of provocation would avail to them since the deceased was one of those offering the provocation.
INSANITY
This is governed by Section 27 of Act 29. There are two forms of this defence; insanity simplicitor and insane delusions.
Insanity (section 27(a))
Special verdict in respect of an insane person
Where a person is accused of a criminal offence, the special verdict provided by the Criminal and other Offences (Procedure) Act, 1960 (Act 30) in the case of insanity is only applicable
⦁ if that person was prevented, by reason of idiocy, imbecility, or a mental derangement or\ disease affecting the mind, from knowing the nature or consequences of the act in respect of which that person is accused
In this instance the accused is by reason of insanity not compos mentis unable to comprehend the nature or the consequence of the act constituting the crime. This is known as the M’naghten rule.
In all cases a man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved to their satisfaction and that to established the defence of insanity it must be proved that at the time of the crime the accused was laboring from a defect of reason from a disease of the mind and as such did not know the quality of the act and its nature or he did know the act but did not know it was wrong. Regina v Windle
INSANE DELUSIONS (Section 27(b))
The section provides that if that person did the act in respect of which that person is accused under the influence of an insane delusion of a nature that renders that person, in the opinion of the jury or of the Court, an unfit subject for punishment in respect of that act.
Insane delusion has been explained to cover situations the accused lives in a world of his own which cannot be shaken by any fact, as such if he is punished he would be unable to comprehend why he is being punished.
When an insane delusions is pleaded the state of mind at the time of the incident is what is material but not what is afterwards. R v MOSHIE
In relation to insane delusion, the courts are not concerned with the irresistibility to act but rather if the accused was unconscious of acting. That is there is no requirement that the mental delusions should lead to an incapacity to control conduct. It is sufficient if the accused acted while in a state of mind induced by a disease in which a false belief is held that cannot be shaken by facts. ABUGRI FRAFRA @ PINI FRAFRA v THE REPUBLIC
AKPAWEY v. THE STATE
FACTS: The appellant killed two children under the delusion that they and their father had through juju means tried killing him. In his statement to the police he admitted killing the children, however in a subsequent statement he denied killing the children. At trial he persisted that the children were alive.
HELD: In allowing the appeal and entering a special verdict ollenu J. held that the test should be to the effect that the delusion is of such a nature that the accused is unfit to be punished. He held that the accused was unfit to be punished from the facts.
Manu v. THE REP
FACTS: the accused killed two persons whom he claimed to be animals. The trial judge did not properly direct the jury as to the law on insane delusions.
Insane delusions as a state of mind can be either temporary or permanent. Appellant’s remembrance of events prior to the death of the deceased does not necessarily negative the defence of the insane delusions. The appellant at the time of killing was experiencing an insane delusion thus; a special verdict would be given.
AUTOMATISM
The psychiatric condition of automatism occurs when a person acts without his or her cognitive faculties, in much the same manner as an automaton. Here the person does the act unconscious of the fact that he did the act. E.g. kills another whiles sleep walking. The absence of the cognition during the act has been argued to have negate the voluntary requirement of the actus reus. Others argue that the absence of the cognitive factor implies the mind did not accompany the act thus negating mens rea.
Automatism is not expressely stated in the code but the court has held in Dogo Dagarti v The Republic that the defence of automatism holds and it would be treated as a disease of the mind.
Case: Bratty v A-G for Northern Ireland.
Facts: the accused strangled a girl whiles driving in a car. He claimed that he did not know what he had done because he had no recollection of anything except that he had experienced a temporary blackout, during which he must have strangled the girl. He was convicted for murder.
Held: the defence of automatism would not avail to an accused if he alleges the act to be due to a disease which affects the mind therefore rendering him insane and if the said insanity plea is rejected by the courts. Lord denning held that if a man is unconscious of his acts due to his inability to control is actions the defence of automatism would not avail. If he is unconscious due to drunkenness the defence would not avail. the appeal was dismissed since the plea was unconsciousness due to a disease of the mind.
Case: Reg v. Burgess
Facts: the appellant attacked a friend with whom he was spending an evening, while the friend was asleep. he hit her on the head with a bottle then a video recorder and then attempted to strangle her. He claimed that he was sleep walking at the time and pleaded automatism. held: That such cases of automatism came within the rules of M’naghten on insanity because any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. The appellant here suffered from a disease of the mind due to internal factors such as depression.
Other cases on insanity
Collins alias Derby v. The Republic
Facts: the appellant was convicted of murder although there was evidence of insanity. Held: that the failure to consider appellant’s history of schizophrenia prejudiced him unduly. The requisite state of mind is at the time of the offence was committed and not at a subsequent date. Special verdict substituted.
Williams v. The republic
Facts: the accused set fire to her husband who died as a result of injuries sustained therefrom. She pleaded insanity.
Held: the state of mind, apart from the evidence of history is often discovered by contemporaneous acts and behavior of the accused, viz a viz, conduct immediately before, at the time or immediately thereafter. The evidence did not show sufficient state of mental derangement for the defence to succeed.
Helegah v the State plea of amnesia
Facts; the appellant killed the wife after he was acquainted with the information that she was about leaving him for another man. A day after the killing he gave evidence recounting the incident. At trial he pleaded insanity because he did not recall the event.
Held; that the plea of amnesia does not constitute insanity. Insanity can be shown to exist if there is a hereditary of any such in the family. Marital jealousy has never been classified as a symptom of insanity.
INTOXICATION
A person who imbibes a mind altering substance and whose mental state is thereby impaired is said to be intoxicated. This could be as a result if intake of alcohol or any drug of the effect prescribed by a doctor. Generally, speaking intoxication is no defence for a criminal charge. This is provided in section 28(1). R v OWAREY
Every man is presumed sober until he proves otherwise. There are two kinds of intoxication, voluntarily intoxication and involuntary intoxication. Moreover, the accused must prove that by virtue of the intoxication, he was unable to tell the nature and consequence of his actions.
Voluntary Intoxication
This is governed by Section 28(2b) of Act 29.
Under this kind of intoxication the accused must show that he was extremely intoxicated so as to be unable to comprehend the nature and consequences of his action. In this case a verdict of insanity is entered. KETSIAWAH v THE STATE, ATTORNEY GENERAL FOR NORTHERN IRELAND v GALLAGHER, CHUTWA v R
INVOLUNTARY INTOXICATION
This is governed by section 28(2)(a) of Act 29
R v. Kingston
Facts: the accused person had been invited to the flat of another. He was given refreshment laced with a drug and was then filmed having homosexual intercourse with a minor, for the purposes of blackmail. He prosecuted for the offence and although he pleaded intoxication by the act of a third person he was convicted at trial due to the failure of the judge to properly direct the jury. He appealed.
Held; allowing the appeal. That there was sufficient evidence of involuntary intoxication for the jury to have been directed thereon and that a failure to do so this had rendered the conviction unsafe such that it could not be allowed to stand
Reg v. Allen
Facts: The defendant was charged with buggery and indecent assault on a woman. He sought to raise a defence of involuntary drunkenness. He had consumed several pints of beer and was offered further alcohol of a type which he had not taken before but was described to him as homemade wine
Held: the mere ignorance of the strength of the drink that a person voluntarily takes does not make his consequent intoxication involuntary.
The effects of the plea of intoxication in 28(2) (a) and(b)are found in:
Section 28(3)
(3) Where the defence under subsection (2) is established, then
(a) in a case falling under paragraph (a), the accused person shall be discharged, and
(b) in a case falling under paragraph (b), the special verdict provided for by the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) in the case of insanity shall apply.
Section 28(4)
Intoxication shall be taken into account for the purpose of determining whether the person charged had formed an intention, specific or otherwise, in the absence of which the person charged would not be guilty of the criminal offence
Look at the Gallagher case.
R v. Hardie
Facts; the appellant was in a relationship with a woman. Upon a breakdown of the relationship he took some pills of valium a sedative. Thereafter, he set on fire the bedroom in which the victim was with the child. At trial he pleaded intoxication, the trial rejected the plea on the grounds that it was irrelevant in determining whether the requisite mens rea had been formed. He appeals
Held: the direction was wrong because the effect of valium as an intoxicant was relevant in determining whether the appellant had formed the necessary mens rea for the offence. The appellant was acquitted as he was had no knowledge of the nature and consequence of his act due to intoxication.
QUEEN v. O’ Connor
Facts: the accused stabbed a police officer stealing from the officers car. He was charged with murder and acquitted upon the successful plea of intoxication. the crown appealed the court held that by stabbing the man as a result of intoxication and it was not his voluntary act.
DPP v. BEARD
FACTS: The respondent had killed a 13nyear old girl whom he was raping by placing his hand on the mouth and his thumb against her throat to stop her from calling for help. She died of suffocation. His plea of intoxication was not allowed by jury. He was sentenced to death. The court of criminal appeals quashed the conviction, substituted a verdict of manslaughter and sentenced him to 22 years. The crown appealed.
Held: Lord Birkenhead: where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that was incapable of forming the intent required, he could not be convicted of a crime which was committed only if the intent was proved. The drunkenness can negative the commission of a crime.