Basic Element of Crime
A crime for the purpose of analysis is divided into two element, namely, “actus reus” and “mens rea”. Before a man can be convicted of a crime it is usually for the prosecution to prove:
a) That a certain event or a certain state of affairs, which is forbidden by the criminal law, has been caused by his conduct.
b) That this conduct was accomplished by a prescribed state of mind-mens rea.
1. Actus Reus
Actus Reus is a Latin word. Actus simply means an act and reus is that prohibited by law. Therefore actus reus may be described as such result of human conduct as the law seeks to prevent. The word conduct here covers both acts and omissions. The Actus Reus includes all those elements in the definition of the crime other than the accused’s state of mind.
Proof of Actus Reus
Actus Reus must be proved; if there is no Actus Reus there can be no crime, since a person cannot be convicted solely because of the state of his mind. The mere intention to kill is not punishable as such; there must have been a killing.
Example:
i) Where A takes B’s property with intent to steal it but unknown to A, B has given his consent to its being taken.o
ii) D believes that he is appropriating P’s property he cannot in any circumstances be guilty of theft if the property belongs to no one. D has the mens rea but Actus Reus of the crime is missing/ lacking.
Actus Reus and will
If the Actus Reus includes an act, that act must be willed by the accused. If the man is unable to control the movement of his limbs it seems obvious that he should not be held criminally liable for that movement or any of its consequences.
“Actus reus” is a muscular contradiction a something more. A spasm is not an act. The contradiction of the muscular must be willed”
In the case of R. V. CHARLSON [1955] 1 ALL E.R. 859, the father invited his ten year old son to look out of the window at a rat in the river below, and when the boy did so, struck him on the head with a mallet and threw him out of the window, causing him grievous bodily harm. There was no evidence of provocation or motive. The father said he did not know why he hit the/his boy but remembered was being in his car. There was a history of ill health in the father’s family and according to medical evidence: he possibly has a cerebral tumor. A man from cerebral tumor is liable to an outburst of impulsive violence over him which he has no control. The accused was acquitted because he did not act on his own volition.
In the case of HILL V. BAXTER [1958] 1 ALL E.R 193,the respondent being a driver of motor vehicle on public road, drove across a road crossing in disregard of a halt sign, and his vehicle collided with another motor vehicle. A police constable arrived at the scene and found the respondent in a dazed condition and at the hospital to which he said:
“….I remember being in Preston Circus going to Withden, I don’t remember anything else until I was searching for my glasses. I don’t know what happened….”
The accused’s plea failed, for the evidence showed that the accused had driven a considerable distance along a busy street between the point where his memory was alleged to have failed and the point where the offence occurred.
Actus Reus as “State of Affairs”
A crime may be so defined that it can be committed although there is no act. There may also be no necessity for “willed muscular movement”. Instead it may be enough if a specified “state of affairs” is proved to exist. Under the Road Traffic Act, for example, there is or could be a rule that any person who, when in charge of a motor vehicle on a road or other places is unfit to drive through drink or drugs commits an offence. It is not taking charge of the vehicle or becoming unfit which is the offence, but simple being in charge or being unfit. Thus an offence may be committed by the accused being in particular place, or being in possession of something or being in charge of something.
It must be shown that the accused did not do an act or omitted to do an act but also certain circumstances resulted from that act or omission. E.g. A & B decided to shoot different persons; A kill, B misses therefore only A can be guilty of murder.
All offences include a number of ingredients, which must be present. Some offences may be only committed;
- By a particular class of person E.g. a repudiated thief.
- Against a person of particular age. E.g. Indecency with a child.
- Against a particular class of public servant. E.g. Assault on a constable.
- In respect of a property of a particular type. E.g. Theft of motor vehicle.
- Without the consent of the victim. E.g. Rape.
- There is a particular relationship between the accused and the victim. E.g. Incest.
- At a particular time. E.g. Burglary.
- In a particular place.
Actus Reus and Causation
When the definition of an actus reus requires the occurrence of certain consequences it is necessary to prove that it was the conduct of the accused, which caused those consequences to occur. In murder or manslaughter for example it is necessary to prove that the act of the accused caused death. If the death came about solely through some other cause then the crime is not committed, even though the other elements of the actus reus and mens rea are present.
An actus reus may also consist in failure to take action is required by the criminal law i.e. sometimes in criminal law an offence to include an act, attempt or omission punishable by law.
Omission in particular is not punishable unless there is law permitting it. However once it has been shown that a particular offence can be committed by omission it must be shown that the accused was in the circumstances under a duty to act. The common law rarely punished omissions. The usual illustration of the common law altitude is that of a group of people watching a child whom they could save down in a shallow pool. If they are in no specific relationship with the child, it is said that they commit no crime. If however one of them were parent or guardian of the child, this relationship would impose a duty to act, violation of which would be a breach of the criminal law.
“….A duty was imposed upon the prisoner under the circumstances to supply the deceased with sufficient food to maintain her life, and the death having been accelerated by the neglect of such duty; the prisoner was properly convicted of manslaughter….”
The common law seems never to have imposed a duty to act in protection of another’s property. The duty to protect another’s property arose only where there was some special relationship such as parent or guardian with that other, or where is under a duty to take care gratuitously.
For the purpose of criminal law it sometimes necessary to break down an act into the constituents of;
Conduct (which is the central feature of the crime)
Circumstances (the surrounding material)
E.g. section 13 of the Penal Code, abduction of girl under sixteen years-
Conduct, here the conduct, which is the central feature of the crime, is the physical act of taking away the girl.
The material circumstances are
- The absence of lawful authority (unlawful) or excuse (against the will)
- That the girl is unmarried and under sixteen.
- That she was in possession of the parents or guardian.
If any of these circumstances is missing/is not present, the crime is not committed. Thus if D was acting under the order of a competent court or if D was married, or seventeen or if she was not in the possession of any parent or guardian in none of these cases would there be an actus reus.
2. Men’s Rea
Knowledge of the wrongfulness of the act, state of mind, mental capability required in guilty and state of mind defined in the act, (actus reus), generally a blameworthy state of mind accompanying the forbidden acts expressed in the three different degrees (through no every offence require these three degrees) although as general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject matter and may be so framed as to make an act criminal whether there has been an intention to break the law or otherwise do wrong or not. Many minor statutory offences however are punishable irrespective of the existence of men’s rea.
Intention
According to section 10 of the Penal Code, a person is not criminally responsible for an act or omission which occurs independently of his will or accident. But where the intention to cause a particular result is expressly declared by the section creating an offence to be an essential act or omission is immaterial. When a man’s conduct has produced a consequence prohibited by the definition of the actus reus of the crime charged the most common question that is asked is whether he intended such consequence to occur?
An affirmative answer to that question is general justified if the accused had one of the two types of intention with regard to the prohibited consequence.
Direct intention, an act is said to be directly intended if the person aimed at achieving it and believed that he was likely to succeed.
Oblique intention, an act is said to have been intended obliquely when although was not aimed by the person it was foreseen by him as a probable or certain.
A man intends a consequence of his act when he foresees that it may result and desired that it should do so. If the consequence is desired it is immaterial that the chances of it resulting may be small.
Thus if A hoping to kill B were to shoot at him from a miles range, knowing that the chances to kill him were small, it would be intentional killing if the one came up.
Intention in statutory offences is frequently expressed as “intentional” or “with intent to” or “willfully”
Examples:
Section 196 of the Penal Code “…malice aforethought….”
Section 258(1) of the Penal Code “…fraudulently….”
Section 294 of the Penal Code “…with intent to ….”
Section 319 of the Penal Code “…willfully….”
If a person is charged under a section requiring a specific intention such intention must be proved. In the case of BRAZILA V. R. (1969) H.C.D. No. 309, the accused was a messenger employed by the Bukoba District Council, was in charge of prisoners held at Primary Court. He let two prisoners out of their cells and ordered them to wash their clothes while he went for a work. The prisoners escaped. The accused was charged under section 117(1) of the Penal Code, which applies to “…any person who aids a prisoner in escaping or attempting to escape from lawful custody…
“…It was held that the word ‘aid’ imports an element of positive assistance and or an intention of helping the prisoners to escape. The evidence only showed that the accused was extremely negligent and careless…”
In many cases of contempt of court, the High Court of Tanzania has demanded something higher than mere negligence or recklessness to secure a conviction. In the case of GODSON V. R (1972) H.C.D No. 36, the appellant was summarily convicted of contempt of court for failing to turn up in answer to summons to give evidence c/s 114(1) of the Penal Code. He claimed that he was in the toilet at the material time. The court held that:
“…It is to be presumed that an offence under section 114 of the Penal Code requires mens rea. The appellant’s explanation negates any such mens rea or intentional disrespect…”
In the case of D.M.PATEL V. R.(1969) H.C.D No. 60, the accused that was participating in a court case called out to one of his witness “Wewe shahidi kaa huku” while the court was in session. He was charged with and convicted of contempt of court under section 114(1) (a) of the Penal Code. On the ground that he spoke without the court’s permission, although the accused pleaded that he did not realize that such permission was required. The court held that:
“…The conviction was improper, and intentional disrespect was an essential ingredient of the offence. The court pointed to the fact that the section in question after listing an array of different forms of contempt, ended by including ‘and other acts of intentional disrespect’ i.e. section 114(1)(i), which implies that other acts listed where also intentional…”
Motive
A person’s motive in his reason for acting as he did. According to section 10 of the Penal Code motive is immaterial when a person is charged in criminal case. This section refers to the motive, which induced a person to do something prohibited by the law or to omit to do something, which he was duty bound to do.
However under the same section i.e. section 10 of the Penal Code where it is expressly declared in a fewer cases it is possible for a person to commit a crime but with good motive. But in criminal law generally speaking motive should not affect liability. Therefore if a person causes an actus reus with the requisite mens rea he is guilty of the crime inspite of his good motive. A man who kills his incapacitated and suffering wife out of motive of compassion is just as guilty of murder as the man who kills for revenge.
In R.V. WINDLE [1952] 2QB 826, the appellant was married to a woman 10 years his senior, she was certified insane, and led him a most horrible and wretched existence. She
was always threatening to commit suicide. As a result of living with her, he too suffered from a form of communicated insanity as “folice a deux” . he gave her 100 aspirin tablets from which she died. At the time he did so he knew that it was against the law, but he believed that what he was doing was right and that, in view of his wife’s condition it was something which should be done and which he ought to do.
In R. V. SENIOR (1899) 1 QB 283, the accused was charged with the manslaughter of his infant child of which he had the custody. He belonged to a j who objected on religious grounds to calling on medical aid, and to the use of medicine, and he had deliberately abstained from providing medical aid and medicine which were necessary for the child, though he knew it to be dangerous ill, but in other respect he had done all he could in his best interests of the child.
“…It was held that the accused has willfully neglected the child in a manner likely to cause injury to its health and having thereby caused or accelerated its death, he was rightly convicted of manslaughter. His religious motive could not help him…”
In evidence motive is a relevant factor. Therefore if the prosecution can prove motive for X murdering Y, the existence of that motive makes it more likely that it is X who committed the actus reus. Motive is also relevant in determining the type of punishment to be given or in assessing the sentence. A person who had a good motive will normally be punished leniently.
Recklessness
Intention cannot exist without foresight but foresight can exist without intention. A man may foresee the possible consequences of his conduct and yet not desire them to occur. Nonetheless if the persist on his course he knowingly runs the risk of bringing about the unwished result. In recklessness a man takes unjustified risk. In some other words the accused had some actual awareness of the risk he was taking although he didn’t desire the consequences. Under chapter XXII of the Penal Code the degree of mens rea required is that of recklessness.
Negligence
A man is negligent with respect to consequences of his act when he does not foresee the possibility of the occurrence of those consequences at all when he ought as a reasonable man to foresee it. E.g. A driver who drives a motor vehicle with defective tires without minding to check the condition of his tires is negligent. In manslaughter cases it is sufficient to prove that the accused was negligent or reckless. In the case of R. V. CHEPE KALANGALI 1973 L.R.T N.77, the accused failed to take care of the deceased child who was in his custody, and who was suffering from cold. The resultant exposure to cold hastened the death of the deceased:
“…Mnzava J (as then he was) found the accused guilty of manslaughter within the meaning of section 203 of the Penal Code. He observed that for a person to be guilty of manslaughter by negligence, it must be proved that he had a duty to take care, that he failed to discharge that duty thereby causing the death of the deceased
Sometimes the borderline between negligence and recklessness is obscure and in a number of offences; e.g. the Road Traffic Act, one may find both words used in the alternative e.g. section 50 says;
“…Any person who uses parks or stands a motor vehicle or trailer on any road carelessly or without any reasonable consideration for any other person using the road shall be guilty of the offence…”
Again the whole of chapter XXIII of the Penal Code is devoted to offences of criminal recklessness and negligence.
Mens Rea and Voluntariness
Since it is said that mens rea includes those acts willed by the accused, any involuntary muscular movement will not contain mens rea. Involuntary acts would protect a man who suffers a epileptic fit while driving causing death or sleepwalking and other unconscious state. Section 10 0f the Penal Code.
In the case of BRATT V. A.G. FOR NOTHERN IRELAND [1963] A.C. 386, Lord Denning at page 409 said
“…No act is punishable if it is done involuntary, and involuntary act in this context…means an act done by the muscles without any control by the mind such as spasm, a reflex action or a convulsion or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking….”
In ANTHONY MHIKWA V. R. (1968) H.C.D NO. 460, the accused was convicted of contempt of court c/s 114(1)(a) of the Penal Code on the grounds that he had shown disrespect to the court by laughing and making peculiar noises in the court of the trial in which he was involved. On appeal he explained that a fly had flown into his nose, causing him to snort and sneeze. The High Court accepted the explanation and quashed the conviction. The reason given was lack of mens rea because the accused’s reaction was instinctive and subjective to conscious control.
Strict Liability
In strict liability cases the accused is held guilty on the strength of the actus reus only without proof of mens rea. Offences of strict liability are also known as offences of absolute prohibition. It is not easy to recognize offences of strict liability one cannot also predict with confidence whether the court will rule the particular statute imposes strict liability. This has led sense criminal law writers to argue that crimes of strict liability are the creation of the courts rather than parliament. Read Smith and Hogan, Criminal Law, London, Butterwoths, 1965 at page 56.
In JOSEPH HARKWORTH V. R. (1970) H.C.D. No. 27, the accused were Englishmen, they crossed the Songwe Valley from Malawi to Tanzania and walked to Kyela and reported at the police station. They were arrested and charged with unlawfully entering into Tanganyika. The particulars alleged that they entered into Tanganyika by way of Songwe River, which was not an official port of entry. During the trial the first appellant said “I realize my mistake now, I entered unlawfully into Tanzania, I was misled by the customs officials in Malawi to come this way.” The second appellant said “ I admit this offence I did not follow the official ports of entry to Tanzania.” They were convicted.
On appeal the defense council submitted that the trial magistrate should not have entered a plea of guilty since mens rea was an essential pre-requisite for the commission of the offence. In deciding the appeal the judge has this to say:
Ø Regarding the intention of the legislature,
“…I would hold that at the present time, the regulation of entry into Tanzania through proper ports is the subject which the legislature did intend to control rigorously…”
Ø Regarding the problem of proving mens rea;
“…In this type of case…it would be extremely difficult to prove in most instances that the person charged did intend to break the regulation…”
Ø Regarding the gravity of the harm (not the offence) likely to be caused to the public;
“…I am well aware that the security of this country along its southern border is a matter of concern…”
As the result the appeal was dismissed. It has to be noted that the act of the accused person must be willed. It must also appear that he was responsible for the act, which brought this about, i.e. muscular movement was willed. For this reason it has been suggested that the liability is strict and not absolute.
What is the justification for this rule?
Ø The good sense of the court is to put pressure upon the thoughtless and inefficient to their whole duty in the interest of public health, safety and moral. If mens rea were to be proved in every offence some guilty defendant would escape simply because of lack of evidence.
Vicarious Liability
As the general rule law does not regard the master as having any criminal liability for the acts of his servant. Whatever may be his liability in civil, tort or contract unless he has himself actually authorized or aided and abetted him.
Exceptions to this general rule:
Ø At common law the proprietor of a newspaper may be liable criminally for libels published by his servants in conducting his newspaper even though he had not authorized their publication.
Ø In case of public nuisance, it is possible for the master to be vicarious liable for the acts of his servants.
Vicarious liability is mainly restricted to cover cases of negligent masters. E.g. Section 54 of General Interpretation of Laws and General Clause Act, 1972 Cap. 1.
“…Where any offence under any Act is committed by a person as an agent or employee then the principal or employer shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves to the satisfaction of the court that he had knowledge, and could not by the exercise of reasonable diligence have had knowledge of the commission of the offence…”
The reason advanced for holding a master liable is that a statute would be rendered ineffective and the will of the parliament thereby defeated if he were not held so.
The case of HAMAD ABDALLAH V. R [1964] EA 270, shows the situation where the master was held vicarious liable for the acts of his servant after delegating to him the performance of certain duties cast on him through the license. The fact were that, the owner and holder of a license for a public services vehicle was convicted of failing to comply with a special condition of his road service license c/s 23(3) and 26 of the Transporting Licensing Ordinance Cap. 373.
“…On appeal it was argued that he was not on the vehicle when the offence was committed or that he was a part thereto or even knew of it. The court said that section 26(1) creates an absolute liability, and it was no defence that the appellant was not a party to even aware of the breach of the special condition…”
Corporate Liability
This is a situation whereby a company is held criminal liable for the acts/offences committed by its employees. When we look at the General Interpretation of Laws Clause Act, the definition of a person include includes “any body of persons whether corporate or uncorporated”-S. 3. Section 53 provides that:
“…Where any offence under any Act is committed by a body of corporate then, unless a contrary intention appears, as well as the body corporate, any person who, at the time of the commission of the offence was concerned as the director or an office with the management of the affairs of such corporate body shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly, unless he proves to the satisfaction of the court that he had no knowledge and could not be the exercise of reasonable diligence have had knowledge of the commission of the offence…”
Although the corporation has a legal personality, it has no physical existence and as such cannot form intention of any kind except though its directors or servants. As each directors or a servant is also a legal person quite distinct from the corporation, it follows that a corporation’s legal liabilities are all a sense of vicarious.
However, since the people acting in the company’s business are considered to be company, the courts treat the company personally not vicarious liable. The acts of these officers within the scope of their employment are the company’s acts and the company is held liable not for the acts of its servant but for what are deemed to be its own acts.
Limitations on Liability of Corporation
Ø It is the acts of the responsible officers of the corporation only, like the managers, or members of the board of directors, which will be considered as the acts of corporation itself. Wrongful acts and omissions by the subordinate staffs of a company would not in ordinary circumstances be sufficient to fix criminal responsibility on a company.
Ø A corporation can only be convicted of offences, which are punishable by fine, because there is no other way by which a corporation can be punished. There are offences which it is inconceivable that an official of a corporation can claim to have committed within the scope of his employment e.g. murder, sexual offences, etc.
Collective Liability
This is another form of vicarious liability since like vicarious liability; it is possible for a person to be punished without having performed the actus reus. In Tanzania the best example is found under the Collective Punishment Ordinance, 1921 Cap 74. Under section 2 the president may impose fines on all or any village, area, district or member of any tribe, sub-tribe or community if, after inquiry he is satisfied.
Ø That they or any of them have colluded with or harbour or failed to take all possible means to prevent the escape of any criminal.
Ø That they have suppressed or combined to suppress evidence in any criminal case.
Ø That stolen property having been traced to within the limit of any village, area, or district they have failed or neglected to restore the property or to trace it beyond the limits of such village, area or district.
NB: The power to impose collective punishment is vested on the president only and not the courts.
