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29 Dec

CRIMINAL LAW 1.12 GENERAL DEFENSES

GENERAL DEFENCES.

Criminal responsibility has been defined in Section 1 of the Criminal Code as the liability to punishment as for an offence.

The accused is presumed to be innocent and the prosecution had to prove his guilt beyond reasonable doubt. Section 36 1999 constitution,

Mandilas and Karaberis V  I.G.P;

Where it was held that generally, the onus of proof cannot be on the accused to show how the lorries were not stolen by him

Woolmington V  DPP

That it is better for ten guilty men to go unpunished than for an innocent man to suffer.

The burden may then shift in few circumstances to the accused where he pleads intoxication or insanity.

Chapter 5 of the Criminal Code provides for the various defences that may avail an accused.

 

 

  1. Bonafide claim of right. Section 23 this applies only to honest claim in respect of property, enforcement of debt Subjective test. The conduct and belief of the accused must have been reasonable. No illegal means should be used.

State V  Okolo: In this case, the accused used the services of soldiers to get money by force from someone that owed him. The court held that where there is a bonafide claim of right, if the plaintiff uses force and violence to claim the right, it can amount to illegality. As such, illegality in the procedure vitiated the defence. He was convicted for robbery.

Ejuren V  COP.

In IGP V  Emeozo: A man was awarded compensation by the elder’s council who heard an adultery suit he instituted. He later calimed for the money from the. The court held that even though such claim in law does not exist, so long as it is bonafide and an honest belief on the part of the claimant.

 

 

  1. Section 24, Chapter 5 of the Criminal Code the accused could not foresee and not even a reasonable man in the defendant’s shoes would have foreseen its occurrence nor was there an intention to commit the offence.

Valance V  R: In this case, the accused shot at a group of children and hit one. He claimed that the only wanted to scare the kids. It was held that it is a reasonable consequence of his act as such he was liable.

R V  martyr: In this case, the accused struck a blow at the deceased who bled to death as a result of haemorrhage of the brain. The court convicted him of manslaughter.

Umoru V  the state: In this case the accused slapped the deceased lawyer who died. The court held that the second arm of Section 24 of the Criminal Code shall apply and the accused was freed.

Maiyaki V  the state.

Timbu Kolian V  R: During an argument, the accused threw a light stick in the direction where his wife’s voice was coming from. He did not know that she was carrying their baby. The blow struck the baby on his head which led to death. He was exculpated on appeal.

Some acts of automatism may also be protected. In automatism, the onus is on the prosecution to prove and when discovered, he shall not be locked away, rather acquitted unlike the position in insanity. In Bratty V  A.G Northern Ireland: Lord denning made it clear that a person should take care to prevent the conduct which he claims as automatic. A person who is prone to seize knifes while he is sleep walking should take care that no knife is lying in his way or around before he goes to sleep. A man that is about to fall asleep while driving should stop. He also noted that any mental disorder that is manifested with violence and is prone to reoccur is a disease of the mind.

See also Cooper V  McKenna

 

 

 

  1. Section 25.

Must be honest and reasonable-R V  Gadam.

R V  Eriyanremu: the court held that the belief in witchcraft is unreasonable.

 

Mistake of fact (for example, arresting the wrong person with a warrant) is acceptable but mistake of the law is not a defense (because it is everyone’s business to find out what the law is) except otherwise stated. The liability should be to no greater extent were the mistaken facts to be true. An accused is also not accorded a defence for mistaken a girl’s age as regards rape. R V  Tollson, R V  Morgan

 

 

 

  1. Extra ordinary emergencies Section 26 of the Criminal Code: In such situations motive may be relevant. For example, where a driver swerves in other to avoid hitting a child and inevitably hits pedestrians. R V Section 49 penal code

 

  1. Section 28 of the Criminal Code. Burden of proof rests on the person alleging it. The court in the M’Naghten’s case and Section 27 of the Criminal Code held that everyone is presumed to be sane until the contrary is proved. That the accused did not understand the gravity of his act. Durham V US, it was held, that an accused is not responsible if his act is the product of a mental disease. Upon reading Section 28 of the Criminal Code, the following can be construed;
  • The accused must have been insane (must be a mental disease) as at the time of committing the offence. The fact that the accused is sane at the time if the trial is irrelevant) in

R V  Eriyamremu. It was held that the infirmity was induced by her default (worshiping juju).

It must be a disease of the mind rather than that of the body- ulubeka V  the state, where the accused killed his father and pleaded insanity alleging that at the time of committing the offence he had stomach upset. The court held that it must be a disease of the mind rather than that of the body.

  • The disease made him unable to understand or control his actions or know that he ought not to do an act or make an omission. He could also not have prevented himself from committing the crime.

 

Where the plea succeeds he shall be found; “Not guilty by reason of insanity”. He shall be kept in safe custody pending the decision of a governor or president. The governor shall then decide whether he should be kept over in an asylum, or other home for mentally depraved persons. The detention is entirely at the discretion of the governor. Echem V  R.

 

  1. Intoxication: Section 29 of the Criminal Code. Section 29 (5) defines it as a state of mind induced by narcotics and drugs. Generally, intoxication is not a defence to a criminal charge. But involuntary intoxication (where another maliciously causes one’s intoxication without his consent… and he did not know what he was doing or that it was wrong) may constitute a defence and voluntary intoxication (if he did not know what he was doing or that it was wrong at the time of committing the act or omission) may have a mitigating effect on criminal liability- similar explanation was given by Ogundare JSC in Ahmed V The State.

In R V  Owarey,

The accused was drunk. He searched out his enemy, loaded a gun and shot the deceased. It was held that the accused formed the intention to kill despite the fact that he was intoxicated.

 

In Kofi Mensah V  R,

The accused went with a gun to the mushroom farm, he was so drunk that he said all he could remember was seeing his wife and later spotting her lying in the pool of her blood. After an attempt at suicide, he later submitted. The court substituted his conviction for manslaughter. Intoxication may not be required in crimes of strict liability for example, D.U.I. See the Road Traffic Act, The Breathalyzer Legislation.

 

 

  1. Immaturity due to non-age. Section 30 of the Criminal Code as well as Section 50 of the Penal code a child below 7 years cannot be guilty of an offence. One below 12 is presumed not to be responsible. Unless it can be rebutted that child could discern the consequence of his act. This does not apply to rape cases because a child below 12 is presumed to be incapable of having carnal knowledge. At the age of 12, he is responsible. Children are tried in juvenile courts and are corrected, rehabilitated or taken to juvenile homes when found guilty. See the Children and Young Persons law.

The law of lagos state states that the age of criminal responsibility is 10. As such a person under the age of 10 cannot be criminally responsible.

 

 

 

 

  1. Self-defense. Section 32(3) of the Criminal Code and 286 of the Criminal Code provides that if the assault is of such a nature as to cause reasonable apprehension of death or grievous bodily harm. Section 33(2) of the 1999 constitution. In defending or aiding in self defece;
    • The assault must have been unprovoked. Except there has been retreat as far as possible.
    • Reasonable and proportionate force as necessary used in retaliation.
    • Applied during the assault not after it has ceased.
    • Would not avail anyone that is easily excited. Nworie Nwali V The State, Musa V  The State.

As regards defence of property;

In R V  Ebi,

he accused shot at a crowd of rioters that were disturbing his peace and throwing stones at his newly finished house. The court held that he was entitled to plead defence of property.

In state V  agbo, the defence of another availed a father who killed those that killed his son with a machete in his presence.

 

  1. Compulsion: occurs where a person commits a crime in order to save himself from a threatened act. The threat must be that of grievous bodily harm or death. It does not however extend to a situation where the man commits a crime of murder or an act that is likely to cause grievous bodily harm. A wife of a Christian marriage is not responsible for an act which she is compelled to commit by her husband and in his presence. Section
  2. Provocation: Section 286 of the Criminal Code. Limits murder to manslaughter.

10, Execution of the law. For example, judicial officers, are not liable for acts or omission committed in the execution of their judicial duties. The hangman, and so on.

Isochukwu

Quite eccentric really

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