1. PART III: GENERAL DEFENCES
Justification and Excuses; Mental Incapacity; Infancy/Lack of Age; Insanity; Diminished Responsibility; Intoxication; Self defence; mistake; consent.
Lumbiwe Mwanza

2. INTENDED LEARNING OUTCOMES
By the end of this session, you should be aware of the general defences available to a defendant which can be relied upon to eliminate criminal liability for whatever offence charged
Know & understand the provisions AS are addressed in the PENAL CODE
Be able to cite examples of cases to illustrate the provisions.

3. DEFENCES
D might not be held liable for an offence committed with the necessary mens rea and actus reus if d has a valid defense
Justification – argument that an act is permitted under the law (self defence, neccessity)
Excuse – D is not to blame for causing harm (insanity, infancy etc)

4. INFANCY
section 14 of the PC

5. INSANITY

6. INSANITY CONT’D M’NAGHTEN [1843-60] ALL ER R 229 HOUSE OF LORDS:
disease of the mind
defect of reasoning
the defendant did not know what he was doing or that it was wrong

7. DISEASE OF THE MIND
Sulivan [1984] AC 156, HL – impairment of mental faculties of reason, memory and understanding
For mental impairment to be due to a disease, the immediate cause must be internal to D

8. DEFECT OF REASON
Clarke [1972] 1 ALL ER 219, CA – defect of reason is more than a momentary confusion or absent mindedness; a deprivation of reasoning power is required

9. IGNORANCE OF THE NATURE AND QUALITTY OF THE ACT OR THAT IT IS WRONG
D must prove that because of his defect of reason due to a disease of the mind either he did not know the nature and quality of his act and if he did, he didn’t know that it was wrong.
Assuming he knew what he was doing, did he know it was wrong? – Windle [1952] 2 QB 826, CCA

10. INSANITY CONT’D Look at: R V. Mona alias Nailosi (1938) 2 NRLR 17
R v. Alidia (1959) 1 R&N 221
R v Rivett (1950), 34 Cr.App.Rep. 87

11. Unfit to plead
S160 – 167 CPC
Malita Banda v. The People (1978) ZR 223 (SC) Supreme Court
Mwaba v The People (1974) Z.R. 187

12. DIMINISHED RESPONSIBILITY
PC 12A
Mitigating factor limited to murder cases
D was suffering from abnormality of the mind
Abnormality of the mind was due to a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury
Abnormality of the mind substantially impaired his mental responsibility for his act/omission

13. Abnormality of Mind
In order to establish Abnormality of Mind medical evidence is required ( R v. Byrne [1960] 3 ALL ER 1.
a state of mind so different from the ordinary Human beings that the reasonable man would term it abnormal.
Abnormality of mind could include depression, jealousy & other conditions which have the capacity of reducing the A’s will power to control actions.
What constitutes Abnormality of mind is not clear. Courts have offered certain definitions for example statement of Lord Packer, C.J. in R v Byrne (1960) could be considered as a reasonable definitive statement of what constitutes abnormality of mind…… ‘Abnormality of mind… means a state of mind so different from the ordinary Human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts & matters & the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will power to control his physical acts in accordance with the rational judgement.

14. SUBSTANTIAL IMPAIRMENT OF MENTAL RESPONSIBILITY
The abnormality of the mind caused a substantial impairment to D’s reasoning, understanding or control
Responsibility for his action is therefore reduced due
Byrne case – substantial impairment need not be total but it must be more than minimal

15. INTOXICATION
PC 13 (1) - Intoxication not generally a defense to a criminal charge – R v. Quick (1973) QB 910, CA
Can be voluntary or involuntary

16. But, intoxication can be relied upon as a defense when:
When intoxication can be said to have led to a disease of the mind (insanity test);
Davies (1881) 14 COX CC 563

17. Where the offence charged is one of Specific intent not basic intent
DPP v. Majewski [1977] AC 443 HL
Brady [2007] Crim LR 564 CA

18. INVOLUNTARY INTOXICATION
Where D is not responsible for his intoxication he has a valid defense for his actions
But defense only applicable to D that has not formed the necessary mens rea
Mulonda v The People [1978] SCZ
Kingston [1995] 2 AC 355 HL

19. SELF DEFENCE
Law permits people to protect themselves using force, if necessary , to prevent an immediate attack or its continuation.
S18 of the PC
3rd party protecting someone else from an attack?

20. SELF DEFENCE CONT’D Reasonable man test used
Elisha Malume Tembo v. The People (1980) ZR 209 Supreme Court

21. SELF DEFENCE CONT’D Force must be reasonable and necessary:
The necessity for any defensive action
The amount of responsive force that may be used
The duty to retreat – The law insists that X must demonstrate by actions that he or she does not want to fight (see The People v. Mudewa (1973) ZR 147 High Crt for Zambia)
The imminence of the threatened attack

22. SELF DEFENCE CONT’D
What about a case were the defendant thinks they are facing an unjustified risk but are in fact not?
Williams (Gladstone) (1983) 78 Cr App R276

23. MISTAKE S 7 PC – mistake of Law
S 10 – Mistake of fact – must relate to the actus reus
Mistake of fact prevents D from forming the necessary mens rea

24. Mistake cont’d R v. Tolson (1889) 23 QB 168
DPP v. Morgan (1975) 2 ALL ER 347 (HL)

25. CONSENT
D does not deny the actus reus but claims the consent of the victim justifies his consent
R v. Wilson [1996] 3 WLR 125
Consent is limited for unacceptable purposes

26. PART IV: PARTICIPATION IN A CRIME
Principal offenders
Secondary offenders

27. PARTICIPATION IN A CRIME
PC, Cap 87, S 21
one person joins another person in an unlawful enterprise to commit an offence
Each person involved in the commission of the act is regarded to have committed the offence

28. PARTIES TO A CRIME CONT’D
1. The Principal offender – an exception relating to innocent agent
2. Secondary parties:
Aids – before or the time of committing the offence
(look at NCB v. Gamble (1959) 1 QB 11)
Abets – at the time of committing the offence

29. Counsels – before commission of the crime - Att- Gen. v
Counsels – before commission of the crime - Att- Gen. v. Able (1984) 1 QB 795
Procures - causing the commission of the offence or bring about its commission.
*Need for a causal relationship between the secondary party’s acts & those of the principal (Blakeley v. DPP (1991) Crim. LR 763).

30. Mens rea of secondary parties?
Actus reus of secondary parties?
PC s 21, 22, 23
R v. Calhaem (1985) 1QB 808 – given assistance or encouragement to the principal offender
Look at –
DPP for Northern Ireland v. Lynch (1975) AC 653 HL
Clarkson (1971) 1 WLR 1402
Thambiah (1966) AC 37
NCB v. Gamble (1958) 3 ALL ER 203

31. Zambian Cases On Secondary Parties:
Alimon Njovu & Felix Njovu v. The People (1998) ZR 5 Supreme Court
Mwape v. the people (1976) ZR 160

32. Need for shared common intention a joint unlawful enterprise
Offenses committed outside the shared common Intention?
Davies v. DPP (1954) AC 378
Foresight of secondary party with regards to principal offender departure from agreed terms:
Chan Wingsiu (1985) AC 168
Winfred Sakala v. The People (1987) ZR 23 Supreme Court

33. Unforseen fundamentally different act – Powell and English (1997) AC 1
Accidental departure – parties are liable for the negative resultant consequence
Withdrawal from secondary party liabiliy – O’Flaherty (2004) EWCA Crim 526: a person must do enough to demonstrate that he is withdrawing from the joint enterprise – read:
Becerra (1975) 62 Crim LR R 212 –running away from the crime scene before completion of the purported offence is not enough
Rook (1993) 2 ALL ER 955 – not simply showing up on the day planned for the crime is not sufficient.

34. END OF LECTURE