There Are Several Defenses Available to an Accused at Trial

DEFENSES

There are several defenses available to an accused at trial.
Defenses operate in two ways: either to excuse one of wrong doing absolutely or to reduce liability
eg where one successfully raises the defence of diminished responsibility, one is found guilty of the reduced charge of manslaughter and where one successfully raises the defence of immature age/infancy one is absolved of wrong doing and therefore acquitted
Note that he who alleges must prove: when A raises a defence, the onus is on him to prove the defence on a balance of probabilities
Defenses are divided in 2 parts: but authors differ in the terms given to the 2 divisions. While some divide defenses into capacity (mental conditions) defenses and general ones, others divide them into specific and general defenses.
Specific ones are defenses which can be used in specific offences only such as provocation and diminished responsibility that can be raised only in murder offences
For this class, the defenses will be discussed in relation to the capacity and general ones

Capacity Defenses

Insanity (Section 12), non-insane automatism, diminished responsibility (Section 12A) intoxication (Section 13), mistake (Section 10)and infancy/immature age (Section 14)
The defence of provocation is a specific one and can fall in either group depending on how well one presents one's argument for placing where ever. For purposes of this class, it will be grouped under the general category.

Insanity

relevant in criminal law in 2 ways
(a) where A claims he was insane at the time of committing the offence and
(b) where A claims he is insane at the time of trial and therefore unfit to stand trial
For purposes of this class, only the first scenario is relevant as the second will be dealt with in fourth year or at ZIALE. But for those who are interested, they can check Section 160 of the Criminal Procedure Code
The defense/plea of insanity should not be confused with the medical term connoting "insanity"
The legal term insanity is based on the M’Naghten Rules which were formulated in the case of M’Naghten (1843) 3 St Tr NS 847
Brief facts being that Daniel M’Naghten, in an attempt to assassinate the prime minister, Sir Robert Peel instead succeeded in killing his private secretary. M’Naghten was found not guilty by reason of insanity on the grounds that he was suffering an insane delusion that the prime minister and his constituents were conspiring against him at the time of his act. The public was incensedat M’Naghten’s acquittal and this made the House of Lords ask a panel of judges to establish rules governing the defence of insanity. These rules are known as the M’Naghten rules.
The judges had the following to say:

Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime unless the contrary be proved and to establish a defence on the grounds of insanity, it must be proved that, at the time of committing the act, the 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 it was wrong.

The M'Naghten rules were incorporated in Section 11 & 12 of the Zambian Penal Code. The Penal Code provides

11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

12. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind, incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission. But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.

From the words of the M'Naghten rules and Section 12, it is clear that the following are the considerations to be taken when dealing with the defense of insanity:

(a)whether A was suffering from a disease of the mind

any condition which leads to the malfunctioning of the mind is a disease of the mind
however caution must be taken to exclude any external factors as causing disease of the mind eg drugs, concussion, alcohol because only defects in reasoning triggered by an internal condition will qualify as insanity
therefore courts look at the disease came about in order to determine whether the disease of mind was caused by internal factors
Kemp (1957) 2 QB 399 The defendant attacked his wife with a hammer, causing her grievous bodily harm. The medical evidence showed that D suffered from arterial-sclerosis, a condition which restricts the flow of blood to the brain, and this caused a temporary lapse of consciousness. D sought to raise the defence of automatism. Devlin J rejected this defence, ruling that it was one of insanity. He said the following which has become the test for determining disease of the mind

…The condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent... Hardening of the arteries is a disease which is capable of affecting the mind in such a way as to cause a defect, temporarily or permanently, of its reasoning, understanding and so on, and so is in my judgment a disease of the mind...within the meaning of the rules.

Look at Quick (1973) 3 ALL ER 347
The deceptively simple result of this test is that defects of reason are treated as, but as (simple) automatism if triggered by an external cause.
R v Sullivan [1983] 1 All ER 577. The defendant was charged with inflicting grievous bodily harm on P. At his trial he admitted inflicting grievous bodily harm on P, who was a friend, but asserted by way of a defence that he had done so while in the final stage of recovering from a minor epileptic seizure. The undisputed medical evidence at the trial was that the effect on the functioning of the brain of such a seizure was that the epileptic could have no memory of, and would not be conscious of, what he had done during the seizure. The trial judge ruled that the defence amounted to one of insanity, rather than a defence of automatism, and that if the jury accepted the defence they would be required to return the special verdict of not guilty by reason of insanity provided for in s 2(1)a of the Trial of Lunatics Act 1883, and that in consequence the judge would be required, by virtue of s 5(1)b of the Criminal Procedure (Insanity) Act 1964, to order the defendant to be detained in a special hospital. To avoid those consequences the defendant changed his plea to guilty of the lesser offence of assault occasioning actual bodily harm and was convicted of that offence. He was sentenced to probation under medical supervision. He appealed against the conviction on the ground that the judge’s ruling was erroneous in law and had deprived him of the opportunity of pleading the defence of automatism to the charge of inflicting grievous bodily harm which would have been likely to result in an acquittal.

Held – Although the M’Naghten Rules, which stated what constituted insanity, were more apt to apply to a person whose mental faculties were malfunctioning, rather than to a person whose mental faculties were completely absent, when he committed an offence, the common law concept of insanity still applied in the absence of any statutory definition of insanity. Although extended in 1800 to include delusions while committing an offence, the common law concept of insanity still embraced acts carried out when there was a total lack of understanding and memory due to a morbid inherent condition of the brain. Accordingly, if epilepsy brought about a total lack of understanding and memory during the course of which an offence was committed, the special verdict provided for in s 2(1) of the 1883 Act was appropriate. It followed that the Judge’s ruling had been correct, and the appeal would accordingly be dismissed

(b) whether the disease of the mind gave rise to a defect of mind

the disease of mind suffered by A should lead to A having a defective mind
meaning that it is not enough to prove that A has a disease of the mind but also that the said disease has given rise to a defective mind
Section 12 of the Penal Code (last sentence)
Joseph Mutaba Tobo v The People (1991) S.J. (S.C.)

The appellant and some other people including the deceased were at a drinking party. They later left the party and on the way, some branched off to go to their villages leaving the deceased and the appellant to proceed to their own village. It was testified that the appellant was the last person to be seen in the company of the deceased. The following day, one of the villagers and the deceased's father interrogated the appellant on the whereabouts of the deceased whereupon the appellant then led them to an anthill where they found the deceased's half-naked body. The appellant did not offer any testimony in his defence but called a psychiatrist to prove the appellant's defence of insanity.

Held:

(i)That on the balance of probabilities the defence had proved that the appellant was suffering from a disease of the mind at the time of the commission of the offence.

(c) whether the A was not able to appreciate the wrongness of the particular act he was doing at the particular time

the defense is available only where it is proved that A at the time of committing the offence, A did not know/understand

(a) what he was doing or
(b) that he should not do what he was doing

Windle [1952] 2 QB 826, A, a husband who killed his suicidal wife at her request believing, in his mentally disordered state, that it was right to do so, was unable to raise the defence. When he was arrested, A had said to the police, ‘I suppose they will hang me for this’. In saying this, Asignaled his understanding that what he was doing was legally wrong.
Note that in proving insanity, the word of A is not sufficient and therefore there ought to be medical evidence to that effect.
See the case of Tony Manganda Kwiimbe v The People (1982) Z.R. 32 (S.C.)The applicant, a court clerk, was charged with theft by public servant involving K270.51; which money he received for purposes of paying the local court staff. However the staff were not paid and he failed to account for the money. He pleaded insanity and the magistrate made a special finding under s. 167 of the Criminal Procedure Code and remanded him in custody during the President's pleasure. He sought leave to appeal against the finding and the states filed a cross-appeal.

Held:

(i)The burden of proving insanity on a balance of probabilities lies upon the accused.

(ii)Sufficient medical or scientific evidence supporting the defence that the accused was mentally incapacitated is required to displace the presumption of mental capacity. The accused's bald word cannot suffice.

INTOXICATION Section 13

Intoxication impairs a person’s perception and judgment so he may fail to be aware of facts or to foresee results of his conduct.

An accused may plead the defence of intoxication to show that he lacked mens rea for the crime charged.
Intoxication can be by either

a)Alcohol

b)Drugs

General rule: Intoxication in itself not a defence
For one to successfully plead this defence, the following must be shown;

a)The accused did not know what he was doing or

b)That what he was doing was wrong

c)That the accused did not self induce his intoxication

d)The effect/level of intoxication was so higher that the accused was rendered insane, temporarily or otherwise

Intoxication is a defence to specify intent cases e.g murder, theft, robbery, burglary with intent to steal, causing girl bodily harm with intent theft,
- not available in cases of basic intent such as manslaughter, rape, malicious wounding kidnapping,
only in specific intent offences and these are offences where an accused forms intent to commit an offence

Tembo V The People (1972)

The prosecution’s case was that the deceased and his friend Mr. Ngoma entered a tavern called Magoye at 19:15 pm on 13th June, 1971. They bought a mug beer after which the deceased left Mr. Ngoma and went in the direction of the toilet. The accused came up to Mr. Ngoma and took the mug of beer from him and went away with it. Mr Ngoma waited for the accused at the door of the tavern and when the latter returned asked him for 10 ngwee to buy another mug of beer. The accused said he did not have any money. When the deceased came back he asked Mr. Ngoma to explain what had happened. He then demanded for 10 ngwee from the accused and the accused gave the same response given to Mr. Ngoma. Mr Ngoma testified that this conversation lasted 15 minutes and that he later heard the sound of a knife being opened, a blow was struck and the deceased was stabbed.

The accused admitted fighting with the deceased but claimed there were 2 people he fought with and that when the police found him, he was lying unconscious. He appealed against his conviction by the trial court which disregarded his defence of intoxication. On appeal his conviction was confirmed.

Held:

A Court is not called upon to consider intoxication for the purpose of S13 (4) of PC unless there is evidence of intoxication fit to be left to the jury
Evidence of drinking even heavy drinking, is not sufficient in itself, nor is evidence that an accused was under the influence of drink in the sense that his co-ordination or reflexes were affected. To constitute evidence fit to be left to the jury, there must be evidence that an accused capacities may have been affected to the extent that he may not have been able to form the necessary intent.

Timothy Mulonda v The People (1978) ZR 351

Kalaluka Musole v The People (1963-1964)

Infancy/Immature Age

14. (1) A person under the age of eight years is not criminally responsible for any act or omission.

A child who is below the age of 8 cannot be prosecuted for any offence in Zambia.

(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

Generally, a child who is above 8 but below 12 cannot be liable for any criminal offence unless it is provedthat at the time of offending (acting or omitting) the child had capacityto know that he ought not do or omit
When faced with facts relating to a child under this bracket, look at for words tending to show the capacity of the childbeing spoken of.

(3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.

A male child who is below 12 is not liable for sexual offences involving carnal knowledge
Carnal knowledge is basically a legal term for sexual intercourse which involves penetration.
When faced with facts, be careful on what sexual offence the facts reveal. Not all sexual offences involve sexual intercourse.

General Defenses

Duress (Section 16), necessity, ignorance of the law (Section 7), mistake of fact (10), marital coercion, superior orders, defense of self/property(Section 17), pleas in bar (section 20) and provocation(Section 205)

PROVOCATION Section 206

Devlin J in the case of Duffy (1949) I ALL ER 932 defined provocation as some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable, and actually causes in the accused a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him/her for the moment not master of his/her mind.

Only available to the charge of murder whether as a principal or accessory
If the defence succeeds, one is convicted of a lesser charge of manslaughter
Section 206 of the Penal Code defines 'provocation' and provides for circumstances when one can benefit from the defence
For this defence to be availed, the following must be shown:

The deceased said or did something to provoke the accused and this must be done in the presence of the accused and should be:

be an insult or act done
to the accused or to any person who is his relation as defined by section 206 (1) ( in his presence)
note the relationships covered by section 206;

the accused suffered loss of self-control

-the loss of self control must be sudden and temporal

-the accused had no opportunity/time to cool off

Esther Mwiimbe V The People (1986) ZR 15.

The accused killed her husband by pouring hot oil on him. During trial, she claimed accumulative provocation, that her husband had been abusive throughout their marriage.

Held: evidence of cumulative provocation in the absence of immediate provocation cannot suffice to establish the three vital elements i.e act of provocation, loss of self-control and appropriate retaliation.

MVULA v THE PEOPLE (1990 - 1992) Z.R. 54 (S.C.)

One Sunday morning the appellant had had an altercation with his ex-wife, B, during which he threatened that he was planning to do something to her family and she would never forget it. The appellant, a soldier, had then reported for duty at his barracks, although he was off duty that day. There he obtained an automatic rifle after which he left the base. That night he visited B and members of her family. He demanded that he be killed. B's sister asked him if he was mad. The appellant then left, returned and left again. On returning once more the appellant took the rifle with him and proceeded to fire at B and her family. B's sister and mother were killed and B and another person seriously wounded. The appellant was found guilty of murder and attempted murder in the High Court and sentenced to death. On appeal it was contended on behalf of the appellant that he was acting under provocation and that he was entitled to the benefit of an amendment to the Penal Code, introduced after the offences were committed, permitting the reduction of a murder charge to manslaughter where diminished responsibility was present.