These are made of crimes involving physical harm to the body of a person. They range from attempting to make unpermitted physical contact with a person, through the slightest of contacts, through contact of a sexual nature, up to extinguishing the life of a person.
HOMICIDE
This refers to the killing of a person and it may be lawful or unlawful. It is lawful if it is justifiable or excusable in law or if it is authorized by law. Justifiable killing arises where for instance, a police officer kills to prevent the commission of a crime. Authorized killing arises in the situation where an officer kills in the execution of a death sentence imposed by a court
Unlawful killing arises where it is actuated by an intention to kill or it is done recklessly or through gross negligence. Unlawful homicide are of two (2) types:
⦁ Murder, and
⦁ Manslaughter.
MURDER
Section 46 criminalizes murder and the offender is liable to suffer death. Murder is defined under section 47. In simple terms, murder is intentional killing through unlawful harm.
The elements of murder are the following:
⦁ There must be a death;
⦁ The death must be through harm;
⦁ The infliction of the harm must be unlawful;
⦁ The accused must have inflicted the harm; and
⦁ The harm must have been inflicted intentionally with the intention to kill.
The mens rea requirement here of intention is very important because it is the main element that distinguishes the offence of murder from most forms of the offence of manslaughter.
SERECHI v THE REPUBLIC: The appellant were employees of the Ashanti Goldfields LTD. In Obuasi. They were conveying firewood trucks on a locomotive train from Obuasi to a village. Some non-employees jumped unto the trucks as the train started moving, clearly to catch a free ride. The appellant allegedly approached the deceased, beat him up and consequently, pushed him out of the trucks as it gathered speed. He was ran over by the train and died as a result. The appellant was convicted of murder. HELD: there was sufficient evidence of an intention to cause death and the infliction of unlawful harm. The essential elements of the offence of murder are intent to caused death and the infliction of unlawful harm. Their appeal against a conviction of murder was dismissed. the essential ingredients of the offence of murder are the intent to cause death and the infliction of unlawful harm, and the one essential ingredient of manslaughter is causing death by unlawful harm. For a person to be convicted of murder, the prosecution must prove, beyond reasonable doubt, each of the essential ingredients of the offence of murder. Where the prosecution is only able to prove that the death was caused by an unlawful harm without proving the intent to cause death, the charge for murder fails.
The actus reus of murder – the infliction of unlawful harm resulting in death – on the face of it appears a simple requirement, but in practice it presents real evidential difficulties. This is especially so where the body of the victim is not found.
Unlawful Harm
Harm is defined by section 1 as bodily hurt, disease, or disorder, whether permanent or temporary. Unlawful harm is defined by Section 76 as harm which is caused intentionally or negligently, and without any lawful justification or excuse.
Intention to Cause Death
This is same as intent as encapsulated under Section 11. Motive is irrelevant here.
AWEDAM v THE REPUBLIC
The accused run the deceased done after the deceased had testified against his friend in a court. Prior to killing of the deceased, the accused had threatened to teach the deceased a lesson. The prosecuted in his case to the court argued that the accused had a motive for killing the deceased as such should be held liable for his death. Accused pleaded the defence of accident. Held: The law did not as a rule require proof of motive as an essential element in a crime. The intent to kill must therefore be discovered from the appellant’s acts and conduct during the events that took place at the time the deceased was knocked down. Consequently, when in the instant case of a murder charge, it became necessary to prove motive, it was obligatory on the trial judge in his summing-up to direct in substance that notwithstanding the proof of threats of death by the appellant on 2 February, the jury should be satisfied that the conduct of the appellant at the material time of the killing of the deceased on 4 February showed an intent to kill.
The mere fact that the killing was violent in nature does not mean the accused had the intention to kill. So it is not murder merely because the accused employed violent means in killing the victim. In all, there must be proof of intention to kill. BOAKYE v THE REPUBLIC, SERECHI: It was noted in Serechi, that in the particular circumstances of the case the learned judge should have directed the jury that under section 11(3) they should presume, from the nature of the harm, that the appellants intended that it should cause the death of the deceased, unless there was evidence from the appellants which showed that they believed that the said harm would not cause or contribute to cause his death. Since no such evidence was led by or for the appellants which could rebut that presumption, the proper direction the judge should have given is that the jury should presume intent to kill as a matter of law from the nature, manner and circumstances of the harm.
An intention to kill may also be inferred from the nature of the instrument or weapon employed in the killing.
SENE v THE REPUBLIC: whilst the first appellant was engaged in an unlawful fist fight with the deceased the second appellant felled the deceased with a stone he threw at him and that the first appellant continued punching the deceased even when the deceased was on the ground. The deceased subsequently died from injuries he sustained in the fight. HELD: the one important factor which distinguished the case of murder from manslaughter was intention. The element of intent in a homicide resulting from a fight was determined by considering whether from the circumstances it could be said that the person who killed had the intention to cause death as distinct from a mere intention to fight. Such an intention might be inferred from the instrument or weapon used in the killing or the manner in which the harm which resulted was inflicted. It should not, as was in this case, simply be inferred from a consideration of who began the fight
Where a person does an act in good faith, for the purposes of medical or surgical treatment, an intent to cause death shall not be presumed from the fact that the act was or appeared likely to cause death. SECTION 67(1),
Because it is not all killings by unlawful harm is murder, it is incumbent on the trial judge to direct the jury also on manslaughter.
IDDRISU GONJA v THE STATE. AKOM v THE STATE: the accued killed his aunt by slicing her throat with a flick knife. He pleaded as his defence that he mistook her as the person who had attacked him. In directing the jury the trial judge non-directed by misdirection that if the unlawful harm lead to the death of the person then the accused is guilty of murder. Held: allowing the appeal. , not every unlawful act of an accused which results in death is murder, unless there is clear evidence which shows that the accused also intended death to result from the unlawful harm or the circumstances are such that a reasonable man would realise that his act might cause serious and fatal bodily hurt, and the degree of the probability or possibility of that type of harm resulting in death was apparent to him but he is indifferent or reckless as to the result. Where the harm, though unlawful, was not done negligently or intentionally but resulted in death at least it can be manslaughter only. Clear evidence that the death of the deceased resulted from the acts of the accused
MANSLAUGHTER
SECTION 50 states that manslaughter is a first degree felony and as such does not carry a death sentence. Section 296(1) of act 30 sentence ranges from life imprisonment to any lesser term.
Section 51 defines manslaughter as follows: A person who causes the death of another person by an unlawful harm commits manslaughter, but if the harm causing the death is caused by negligence that person has not committed manslaughter unless the negligence amount to a reckless disregard for human life. There are three types of manslaughter.
⦁ intentional unlawful killing reduced to manslaughter by extenuating circumstances or excuse – for instance, where a person, under extreme provocation, intentionally kills another
⦁ unintentional unlawful killing.
⦁ killing resulting from gross negligence – i.e. negligence that amounts to a reckless disregard for human life – otherwise known as involuntary manslaughter
Unlawful Intentional Killing Reduced to Manslaughter
This is seen under section 47. These circumstances as seen under SECTION 52 are as follows:
⦁ deprivation of the power of self-control by extreme provocation given by the deceased under section 52(a).
⦁ justifiable causing of excess harm resulting from such terror of immediate death or grievous harm as in fact deprived the accused of the power of self-control – that is – manslaughter as a result of excessive use of otherwise justified force under section 52(b).
The principle is that a person who is permitted to use force cannot exceed the bounds of such force without incurring liability – e.g. where a person under attack responds to that attack with more ferocity than the situation demands – except in the situation just described. KONTOR v THE REPUBLIC.
⦁ acting in the belief, in good faith and on reasonable grounds, that one is under a legal duty to cause death or to do the act under section 52(c).
⦁ killing in circumstances induced by the effects of childbirth or lactational psychosis – a woman, causing the death of her child of less than 12 months old, at a time when the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child under section 52(d)
The time limitation of 12 months is based on the presumption that within 12 months of delivery, any such psychosis would have manifested itself. R v CHIMA
Killing resulting from negligence that amounts to a reckless disregard for human life-
Involuntary Manslaughter
There are degrees of negligence thus, not every negligence which leads to the death of another would amount to manslaughter.
In criminal law, we have, at least, two forms of negligence:
⦁ negligence simpliciter, which is the province of section 12, which provides:
A person causes an event negligently, where, without intending to cause the event, he causes it by a voluntary act, done without the skill and care that are reasonably necessary under the circumstances
⦁ negligence amounting to a reckless disregard for human life, which is the province of sec 51.
Thus, for negligent killing to amount to manslaughter, it must be of a higher degree than the sec 12 form of negligence. It must amount to a reckless disregard for human life. STATE v TSIBA
Reckless disregard for human life may be constituted in one of two ways:
⦁ gross inadvertence that causes injury; and
⦁ acts done by professionals without the necessary skill required under those particular circumstances.
And recklessness here is one of two denotations:
⦁ either doing an act which amounts to the taking of unjustified risk, i.e. you foresee there is risk of the consequence following but you unreasonably decide to take the risk, or
⦁ you engage in conduct which involves the taking of unjustified risk even though the actor does not know of the risk.
In order to inculpate the accused, the prosecution must show:
⦁ that even though the accused foresaw the consequence of his conduct as probable or likely, he pursued his conduct with the knowledge of the risks involved though without the desire that that consequence should ensue, and
⦁ that a reasonable man having foresight would not have taken the risks of such consequence.
The test is – what was the foreseeable consequence of the act and not what the actual result turned out to be. As such, conduct that appears harmless but which subsequently results in death, would not be held to be reckless merely because death has resulted therefrom. All in all, it must be negligence connoting a scant respect for the value of human life, and not merely carelessness. AKERELE v R, ADOMAKO v THE REPUBLIC
THE STATE v KWAKU NKYI: the accused was reported as being a good and well-behaved student nurse at the Central Hospital in Kumasi. He was called by a desperate parent to treat a sick child and he agreed to do so. He took with him a syringe and a drug, which he thought was mepacrine, but was in fact, arsenic (which was identical in colour to mepacrine). The accused injected the child with the arsenic. The child’s condition took a turn for the worse and he died not long after. The cause of death was established to be acute arsenic poisoning. HELD: Apaloo J held that, ‘the fact that the accused was negligent is plain enough but I cannot find on the evidence that such negligence was gross or amounts to a reckless disregard for human life. At least in one sense at any rate, the accused in responding to…the invitation and proceeding [to the house where the child was] with a view to attending to [him] showed anxious regard for human life. In my judgment, it would not be right to hold that the accused’s negligence amounts to a reckless disregard for human life simply because possibly out of inadvertence or want of care, he mistook the drug that he intended to administer to the sick child.’
MANSLAUGHTHER IN CASES OF CAR ACCIDENTS
In the case of manslaughter in connection with driving of an automobile, the driving must not only be reckless – it must be of a nature or manner so gross and outrageous as to demonstrate reckless and complete disregard for human life.
MAHAMA v THE STATE
The appellant ran over a child after his brakes and steering wheel failed him on the highway. At the time, he was not on a high speed. He was convicted for manslaughter. Held: The court per ollenu j.s.c. in allowing the appeal held as follows: for an accused person to be guilty of manslaughter in connection with the driving of a motor vehicle there must be evidence of acts of omissions which in law can amount to the high degree of recklessness which shows gross disregard for human life. The driving must not only be reckless, it must be of a nature or manner so gross and outrageous as to demonstrate reckless and complete disregard for human life.
ESSEL v THE STATE
the appellant, who was driving a five ton Bedford truck along the Accra-Winneba Road in the direction of Winneba did not slow down at a “T” junction where people were standing but maintained the same speed and attempted to overtake the vehicle in front, causing a collision and resulting in the death of a bystander. HELD: the appellant’s conduct amounted to a reckless disregard for human life since special care is called for at a “T” junction even when there are no by-standers. The evidence, including the appellant’s own version of the accident, amply supports the prosecution’s case of negligence amounting to a reckless disregard of human life
GENOCIDE
Genocide is governed by section 49A.
SUICIDE
Suicide, is self-murder – that is, a person deliberately putting an end to his/her own existence. The state punish persons who attempt suicide but are unsuccessful because no man has the power to destroy life – not even one’s own life
The focus of the offence of suicide are
⦁ the one who unsuccessfully attempts to kill himself (attemptor of suicide), and
⦁ the one who lends assistance to another in that other’s unsuccessful or successful attempt to kill himself (abettor of suicide)
It is governed by Section 57 of Act 29
R v CROFT
two persons entered into pact to commit suicide. Both of them attempted suicide on one day but one changed his mind and left the scene to seek help. In his absence his partner succeeded in killing herself. Held: that he was an abettor wince his acts made him an accessory before the fact to suicide.
Mcshane v. R.
The appellant inherited from a grandma properties in which the mother had a life interest in the property. The mother was sick and the appellant arranged for the mother to commit suicide. The attempt failed and she was convicted for attempting and procuring and counseling other to commit suicide. Held: the offence did not require that the suicide should have been committed in the pursuance of the abetment. Appeal dismissed.
CHILD AS AN OBJECT OF HOMICIDE
The offences of murder and manslaughter can only be committed in respect of a person. A person is one that has been fully brought forth and not living within the body of another. In respect of a child victim, the accused cannot be held for murder or manslaughter if the child is not a person – thT is a child in the womb of her mother.
According to William Blackstone, to kill a child in its mother’s womb, is now no murder, but a great misprision: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder in such as administered or gave them.
The question then is – at what point exactly does a fetus become a person as to render its killing murder or manslaughter and not abortion? Section 66(1) of Act 29 answers this. This means that even if the child is vagitus uterinus – crying in the uterus or vagitus vaginalis – crying with its head still in the vagina, it cannot be the object of homicide – because it is still in the body of the mother hence not a person.
However, by section 66(2), the child becomes a person when it is completely brought forth alive from the body of the mother even if –
⦁ the child has not breathed, or
⦁ its blood circulation has not commenced and is still dependent on the mother’s blood circulation, or
⦁ it is still attached to the mother by the umbilical cord
The next question is: at what point should the harm be caused to render the killing of the child murder or manslaughter? In other words, should the accused, to be liable, cause the harm to the child before or after the child is born? By section 66(3), the accused may be liable for murder or manslaughter whether the harm was caused to the child before or after it was brought forth alive
The law does not concern itself with when the harm was inflicted – rather, the concern is the time of death. Thus, if you cause unlawful harm to a child before it is born, you will be guilty of murder or manslaughter, as the case may be, if the child dies after it is born. ATTORNEY GENERAL’S REFERENCE (NO. 3 OF 1994), R v WEST
Section 60. Causing harm to child at birth
A person who intentionally and unlawfully causes harm to a living child during the time of its birth commits a second degree felony.
61. Explanation as to causing harm to child at birth
⦁ 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.
⦁ The time of birth includes the whole period from the commencement of labour until the time when the child so becomes a person that it may be murder or manslaughter to cause its death.
ABORTION OR MISCARRIAGE
In medical science abortion is a term used to describe the event of the expelling of the developing ovum before the twelfth week of pregnancy; and miscarriage applies to a situation where the expulsion takes place between the twelfth and twenty-eighth week of pregnancy.
In Ghana, abortion or miscarriage is the premature expulsion or removal of conception from the uterus or womb before the period of gestation is completed. SECTION 58(4).
UNLAWFUL ABORTION
A person who intentionally and unlawfully causes abortion or miscarriage commits a second degree felony. Section 58(3). The law does not make the actual abortion alone a crime – the crime also consists in an act done with intent to procure or cause an abortion.
The offence covers two cases or situations
⦁ first, where a pregnant woman uses any means with intent to procure her own miscarriage – sec 58(1)(a) – the actus reus here consists in 1) administering a drug, poison, noxious substance or instrument or any other means on oneself, or 2) consenting to the administration by another of a drug, poison, noxious substance or instrument or any other means on oneself.
the mens rea consists in the doing of any of the prohibited acts with the intent to cause a premature expulsion of a fetus from the womb.
⦁ the second situation is where anyone else unlawfully uses means, with intent to procure an abortion or miscarriage – sec 58(1)(b)
inducing a woman to cause an abortion is an offence,
inducing a woman to consent to causing an abortion is an offence,
abetting a woman to cause an abortion is an offence,
attempting to cause abortion is an offence – OBENG v THE REPUBLIC,
supplying or procuring any item or implement or drug knowing that it is intended to be used to cause abortion is an offence.
The offence under sec 58(1)(b)(i) is committed where the effort has been made for that purpose even if the mother is not pregnant – that is – it is immaterial that the woman is not in fact pregnant R v TITLEY.
The drug or noxious substance administered to cause the abortion or miscarriage need not be poisonous – it can be any matter that is ingested or administered for the prohibited purpose R v HOLLIS.
Lawful Abortion
For abortion to be lawful, the law specifies who may commit it, the circumstances under which it may be committed and the location where it may be committed.
Thus, by section 58(2) abortion is lawful if the person committing it is a registered medical practitioner specializing in gyneacology or any other registered medical practitioner in a Government Hospital or a registered private hospital or clinic, or in a place approved by the Minister under an L.I. under any of the following circumstances:
⦁ where the pregnancy is the result of a crime – section 58(2)(a) – the caveat here is that it must be requested by the victim or her next of kin or the person in loco parentis – read together with section 42(d), this provision suggests that a girl under 18 may be forced to undergo an abortion if her parents so desire
⦁ where the continuance of the pregnancy would result in injury to the pregnant woman or would involve risk to her life – section 58(2)(b) – the consideration here, as Glanville Williams puts it, appears to be this: the woman is a developed human being, sensitive to pain and anxiety. She is established in the affections of her family, and upon her the welfare of other children and of a husband may depend. Thus, it is far more important to consider her life and health than that of a fetus, representing only a child-to-be, which has not been fully formed, cannot feel pain, cannot live outside the womb, and has not entered the human community – the caveat here is that the woman must consent to it, or if she lacks the capacity to consent, her guardian or next of kin must consent to the abortion –
⦁ where there is a substantial risk that if the child were born, it may suffer from, or later develop, a serious physical abnormality or disease – sec 58(2)(c) – is this not suggestive of eugenics, i.e. that abortion may lead to the betterment of man’s genetic inheritance? Or is it a consideration for the parents of the would be abnormal child so they would not be blighted by having to rear a grossly defective or deformed child? Or is it a consideration of the tax payer’s money that would be spent on it in special health care and educational institutions? It should be noted that the mere carrying of undesirable genes by the would be child will not suffice – the abnormality or disease must be a serious one
⦁ it should also be noted that any act which is done in good faith and without negligence, for the purposes of medical or surgical treatment of a pregnant woman is justifiable, although it causes or is intended to cause abortion or miscarriage, or premature delivery, or the death of the child – section 67(2)
The question arises as to whether the lawful abortion should be carried out entirely by the registered medical practitioner from start to finish or whether a nurse could carry out the process under the instructions of the registered medical practitioner. This was the subject of dispute in Royal College of Nursing of United Kingdom v. Dep’t of Health & Social Security.
CONCEALMENT OF BODY OF CHILD AT BIRTH
It is an offence for any person to conceal the body of a child who has been brought forth, whether such child was born alive or stillborn, with the intent to conceal the fact of its birth, existence, or death, or the manner or cause of its death. SECTION 62(1). This is not a strict liability offence.
The mens rea is the intention to conceal the fact of birth, existence, or death, or the manner or cause of the death.
By sec 62(2) the offence does not apply to:
⦁ a child of less than 6 moths growth before its birth – This means that one may only be guilty of the offence if the child was more than six months old in the mother’s womb before its birth;
⦁ the case of intent to conceal the birth, existence or death of the child, or the manner or cause of its death, from a particular person – as the illustration goes – a woman conceals from her father or mother the body of her child. She has not committed a concealment of birth unless she intended to conceal it from persons generally – There must be an intention to conceal the birth, existence, or death of a child from the whole world, other than the persons who abetted or consented to the concealment – so it must be shown that there was an intention to conceal the body from persons generally, except persons who abetted or consented to the concealment – as the illustration goes – a woman conceals the body of her child from all persons except a nurse who helped in the concealment. The woman committed a concealment of birth although she did not conceal it from her accomplice.
Section 62 must be read in light with Section 63. DONKOR v THE REPUBLIC