Introduction
In previous post we have already seen that the law always demands an Actus Reus as necessary ingredients of a criminal liability. As we have seen the reason for the requirement is that the danger perceived in the mental attitude of one criminal inclined its truly as dangerous as it might appear. In most cases that which comprises the criminal act is part and parcel of the criminal harm accomplished. Thus the murder is the man who kills, the thief the man who steals.
Parties to Offenders in England
I. An accessory Before the Fact
This is the person who is absent at the time of the commission of the offence but yet procure, cancel, command or abet another person to commit the offence. To be an accessory before the fact.
Ø He must have known the particular deed contemplated.
Ø He must approve it.
Ø His approval was expressed in some form, which operated to encourage the principal to perform the deed.
Ø The above three elements came into existence before the time when the offence was being committed.
If the offence is committed in the different manner prescribed by the accessory before the fact, it doesn’t excuse him from liability. E.g. A hires B to poison C but B instead kills C by shooting. A is still liable as an accessory before the fact to C’s murder.
Where the principal makes mistake in performance of the act, accessory before the fact will not be excursed. E.g. Bmistakenly kills C’ brother instead of C, A will still be liable.
II. Principal Offenders In The First Degree
This is the actual offender, a person who executes a criminal act. It is stipulated that no man can be a principal offender unless he be present, but there are situation where he will not be present. E.g. in case of willful poisoning whereby he lay or infuses a poison with intent to poison any person and the person intended or any other person take it in his absence. Another situation is where the principal uses the hand of an innocent agent. E.g. a man who uses a child in committing an offence, a man who uses his dog to assault his enemy, a doctor who poisons and kills a patient by using an innocent nurse. It is possible to have more than one principal offender in the first degree especially where there is joint or common participation in the actual doing of the prohibited act.
III. Principal Offenders In The Second Degree
This includes aiders and abettors. E.g. a man who offers his motorcycle or vehicle to facilitate robbery. A man who aids a thief by keeping watch outside the house where theft is taking place. To render a person liable, the aid or assistance must be intentional.
IV. Accessory After The Fact.
This is the person who knows that a crime has been committed but subsequently shelter or aid the offender in such a way as to enable him to evade justice. Accessory after the fact includes also person who rescue a person from being arrested. It includes a person who intentionally and voluntarily shelters another person who is in his custody, who has committed a crime from being apprehended or to enable escape. It must be shown that active assistance was given before a person is convicted as an accessory after the fact. Mere sympathy is not enough.
Parties To Offences In Tanzania
The law relating to parties of offence in Tanzania is not the same as that of England. In Tanzania there is no distinction between accessory before the fact and the principle offenders in the first degree and second degree. In Tanzania there are only two categories of parties to offences:
Principal offenders and accessory after the fact
I. Principal offenders
According to section 22 of the Penal Code, if the offence is committed each of the following persons may be deemed to have taken the act or make the omission.
Ø A person who actually does the act or makes the omission.
Ø A person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
Ø A person who aids or abets another person in committing the offence.
Ø A person who counsels or procures any other person to commit the offence
Illustration of section 22 TPC.
Suppose A persuades B to murder
C knowing to the plot gives B a gun
D who is also knows of the plan, drives B to X house.
Whilst D keeps watch outside B shoots and Kills X.
From the above illustration
A falls u/s 22(d) TPC
B falls under section 22(a) TPC
C and D fall under section 22(b) or (c) TPC
From the above, it is quite possible that a person may be convicted with an offence although he did not perform the actus reus, which constitutes the offence.
Further more, we find that a person who participate in the commission of an offence under section 22(d) TPC he may either be charged with the commission of an offence or with counseling or procuring its commission. When a person is convicted for counseling or procuring the commission of an offence, he will face the same consequences as if he had been convicted for committing the offence. If the person procures another person to do or omit to do any act, and that person does such act or make such omission, then the person who so procures, will be responsible as if he had done it or made the omission himself.
When two or more persons are jointly charged with the offence and it is impossible to ascertain which particular one committed the offence, the all of them must be acquitted, unless there be established on the part of the accused person common intention to commit the offence charged. Mere presence at the scene of crime is not itself an offence as in the case of DAMIANO PETRO AND JACKSON ABRAHAM V. R, [1980] T.L.R 260, the issue was whether the presence of the second appellant at the scene of the crime, and on flight with the principal and advise the principal to discard the weapon were sufficient to constitute him an aider or abettor. According to the evidence given before the court is that the first accused was seen with a knife, which was used to murder the deceased. The second accused was seen in the company of the first accused. When spotted, the second accused and first accused throw the knife away. As pointed above are these acts sufficient evidence of aiding and abetting by the second accused?
“…The court declined to accept this as sufficient. The court said mere presence at the scene of crime is not sufficient/enough to constitute a person an aider and abettor: the person must also participate in the crime to some extent…”
To constitute an aider or abettor some active steps must be taken by words or actions with the intention to instigate the principal (s). it is not criminal offence to standby, a mere passive spectator of a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably expected to prevent and had power to do so or at least to express his dissent, might under some circumstances afford cogent evidence upon which a court would be justified in finding that the willful encourage and so aided and abetted the person to commit the offence.
In the case of JACKSON MWAKATOKA AND TWO OTHERS V. R [1990] T.L.R 17, the three appellants were convicted for murder. In a trial for murder caused during a fight at night, the trial judge found the appellants were guilty of murder on the evidence that the first appellant was identified as being present when the second and third appellant attacked the deceased on the fateful night and thus participated in the murder under the doctrine of common intention.
“…mere presence of the first appellant at the scene of the crime was not sufficient to invoke the doctrine of common intention and implicate him to the murder…”
If it is established that the accused participated in the commission of an offence, the court will convict all of them for committing the offence. In the case of GEORGE WALTER AND TWO OTHERS V. R [1980] T.L.R. 313, the appellants were convicted: two of them for forgery and the third attempting to obtain money by false pretences. The first and second accuseds were both employed by Oyster Bay Hotel, the former was a storekeeper and the later as a cook. The third accused was a fishmonger who used to supply the hotel with a fish. On the material day. The General Manager (GM) of the hotel while looking out of the window of his room in the hotel, notice that the accused were taking a long time in weighing a basket of lobsters brought by the third accused. The weighing was taking place outside the store, which was visible from his point of observation. He went to the spot to investigate and found that the weighing of the lobsters shown in the scare was 811/2 KGS whereas a receipt voucher written and signed by the second accused gave the weight off the lobsters as 25KGS. The lobsters were weighed again in his presence and that of his wife and it was confirmed that they weighed only 181/2 KGS. By the time the lobsters were weighed again the third accused had already taken the receipt voucher to the cashier and was told to come for payment on the morrow.
The magistrate convicted the first and second accused of the first count i.e. forgery and acquitted them of the second count i.e. attempting to obtain money by false pretences and acquitted him of the first count. On appeal:
“…The High Court found that the first and second accused were also guilty of the second count, given the fact that they conspired with the third accused to rob their employer, and possibly instigated the offence. From the fact given during the trial, it is possible that all three accused were deliberately trying to defraud the hotel, and as such the magistrate should have convicted them all on both counts as charged…”
Thus as provided by section 22 PC, where conspiracy to defraud is proved, all parties concerned should be convicted.
II. Common Intention By Joint Offenders
According to section 23 PC for persons to be charged as joint offenders:
Ø There must be two or more persons.
Ø They have to form a common intention to prosecute an unlawful purpose.
Ø Such unlawful purpose must be committed.
Ø Such commission must be a probable consequence of the prosecution of their unlawful purpose.
To fulfill the requirements of this section, it is not necessary that there should be an agreement among the parties prior to the commission of the offence. In the case of MATHIAS MHENYI AND ANOTHER V. R. [1980] T.L.R. 290, the appellants were convicted of murder. The first appellant enlisted the second appellant in assaulting the deceased with whom he suspected of having an affair with his former concubine. On the material date the second appellant held the deceased’s hand to prevent the deceased from fleeing and from defending himself against the assault. On appeal to the court of Appeal:
“…The court found the second appellant principle offender in that he was an active participant in the vicious assault of the deceased. By holding the deceased’s hand not only made it impossible for the deceased to flee from his assailant but also to ensure that the first appellant in carrying out his evil deed would not meet no resistance from his victim…”
Thus where a person is killed in the prosecution of a common unlawful purpose and the death was a probable consequence of that common purpose, each party to the killing is guilty of murder. In the case MSENGI MKUMBO V. R. (1955) E.A.C.A 500,the two appellants went to a maize shamba to break and remove maize cobs. They were armed with sticks. The deceased surprised them. The second appellant threw a stick not very heavy one to the deceased and thereby caused his death. Both appellants were convicted of murder. On appeal against the conviction the court held that:
“…The two accused being in the shamba with intent to commit the felony of theft, they both being armed with sticks showed that they were prepared to offer violence in pursuit of their common intention and as death resulted from the act of one of them, the element of malice aforethought necessary to constitute murder has been established [S. 200(1) PC]…”
In another case of MUGHUIRA BWAYA AND ANOTHER V. R (1943) 10 E.A.C.A. 105, nine appellants formed a common intention during famine for burgling a house and carried out this plan. During burglary one of the appellants who alone was armed, speared and killed the owner of the burgled house. The appellants denied any intention of murder. They were convicted of murder. On appeal against conviction;
“…The court said that even though one member of a party i.e. the first appellant was armed, the enterprise of burglary was unlawful and resistance by the owner was a probable consequence and the overcoming of such resistance by violence if necessary by burglars would probably be resorted to, were sufficient factor to bring all the accused within the doctrine of common intention…”
In SHENE KIMBOKA V. R. (1968) H.C.D. No. 52,the five accused were convicted on two counts of robbery and malicious damage to property. A taxi driver had taken a passenger to a certain hamlet, where he waited while the passenger went to his house for money to pay the fare. When the passenger returned, a group of persons, including the five accused, had gathered about the car. They questioned the driver and the passenger, indicating that they suspected them of being thieves. Dissatisfied, they set upon the pair, during the struggle, the two men were injured and property and money were stolen from them. It is not clear that any of the five accused stole any of the valuables. The court held that;
“…Clearly, the accused participated in the assault. Conviction entered accordingly, However, although the accused “shared a common intention to prosecute an unlawful purpose, namely, the beating of so-called thieves,” it is not clear that they themselves committed any robbery…”
In another case of JUMANNE SALUM PAZI V. R. [1981] T.L.R 246, the appellant was jointly charged with another persons, the first accused with unlawful possession of government trophy. On the day in question he was travelling to DSM. He then directed the bus to the appellant’s home to pick some bags of rise, from there to be transported to DSM. On arriving at the appellant’s home he informed the appellant, whose one leg was lame, that he has brought the bus. Then he (the first accused) and the turn boys loaded three bags of rise on the bus and just as they were leaving the appellant asked the first accused to pay Tshs 5 loading charges to the turn boys. At some point on the way, the bus was stopped and upon inspecting the three bags were found to contain not only ricebutals elephant tasks-thirteen in all. On being asked, the first accused claimed that the three bags belonged to the appellant who requested him to convey them to DSM. In his defense the appellant denied charge. The issue here is whether there was joint possession of the tasks by the accused persons: on this issue the court found that;
- The first accused led the bus to the appellant’s home and dully informed him that he had brought the bus. This goes to suggest that the appellant had an interest in the matter i.e. if the first accused merely brought the bus there to collect his own property, that is, three bags, then why should he find it necessary to inform the appellant that he had brought the bus?
- After the bus had arrived at the appellant’s home, the appellant had a conversation with the turn boys of the bus after which the turn boys proceeded to load the three bags on the bus. This shows that the appellant was a person who had an interest in the bus coming to his home and taking away the bags. Because if the bus merely came to collect the property of the first accused, why should he (the appellant) go to talk to the turn boys on his business which didn’t concern him.
- After the bags were loaded on the bus and the bus was leaving, the appellant asked the first accused to pay Tshs. 5 to the turn boys as loading charges. If the appellant had no interest in the whole business and had nothing to do with the bags, then why should he take the trouble and pain of seeking to ensure that the turn boy was accordingly paid for the services he rendered in loading those bags on the bus?
“…From the above observations, the court came to the conclusion that the appellant had an interest in the bags in question and took part in making arrangement to transport them to DSM, as such he was a joint possessor of the bags. The appellant as a joint possessor, he was a principal to the commission of the offence…”
It is always that common intention is formed from the outset. It may be formed at the spur of the moment. This is common in the cases of thief beating or drives in cases where pedestrian has been knocked down. In TABULAYENKA KIRYA V. R (1943) 10 E.A.C.A. 51, it was said that, to constitute common intention to prosecute an unlawful purpose within the meaning of section 22 UPC (section 2i3 TPC) e.g. to beat a so called thief there being no suggestion that the violence used was necessary to effect the chief’s arrest, it is not necessary that there should have been any concerted agreement between the accused prior to the attack of the so called thief. Their common intention may be inferred from their presence, their actions and the omission of any of then to dissociate himself from the assault.
We can see therefore that, when a person is jointly charged with another, he can only excuse himself from criminal responsibility of the offence if he has either;
Ø Disassociate himself from such common purpose e.g. by taking steps to prevent it or reporting the matter to the authority concerned, or
Ø If it can be shown that the offence committed was not a probable consequence to the one intended.
NB, It is not sufficient for joint responsibility for an offence under section 23PC that the offence actually committed was likely to occur as a result of the several persons acting together, but the existence of a common intention being the sole test of joint responsibility it must be proved what the common intention was and that the common act for which the accused were to be made responsible was acted upon in furtherance of that common intention.
III. Counseling Another to Commit an Offence
A counselor is a person who advices, encourages or persuades another person to commit an offence. According to section 24 PC for the offence of counseling to be committed:
Ø A person must counsel another person to commit an offence.
Ø The offence has to be committed by the person to whom counseling was given.
Ø It is immaterial whether the offence committed was the same or a different one as that counseled.
Ø It is immaterial also whether the offence was committed in the same manner as counseled for or not.
Ø The offence committed must be a probable consequence of carrying out the counsel.
Illustration
A counsels B to steal X’s motorcycle. B instead of stealing it set it on fire. The fact of setting it on fire is not a probable consequence of the counseling.
If B afraid of stealing the motorcycle himself employs Cto steal it, it will not be a defense to Athat he intended B to do the act himself. If B breaks X’s house to get the motorcycle, both B and C will be responsible for the burglary since burglary was a probable consequence of the act of stealing the motorcycle.
In the case of R. V. BIGULI s/o LWEMARA (1947) 14 E.A.C.A. 115, the second appellant was charged with counseling the first appellant to set fire to the deceased’s house, deceased died in the fire. The second appellant adviced the first accused to burn the house of the deceased because he possessed the knowledge that it was the deceased’s wife who was responsible for the death by witchcraft of some of the first appellant’s children.
On appeal against the conviction for murder it was argued that the trial judge misdirected himself when he held that the evidence established that the second appellant had given the first appellant advice to destroy deceased’s life.
“…The court held that, there was no evidence that the counseling of the first appellant went further than an injunction to burn the deceased’s house…”
Whether the mere injunction to commit arson not necessary at night places the second appellant in position where he can rightly be convicted for murder.
Under section 24 PC where a person counsels another to commit an offence, the offence actual committed must be a probable consequences of carrying out the counsel. In this case it could not be reasonably held that loss of human life is a probable consequence of arson parse. Everything will depend upon the circumstances in which the crime is committed. In this case the first appellant committed the crime at night and without warning the deceased and others who were sleeping in the hut, but there is no evidence that those were the circumstances in which the second appellant counseled the first appellant to commit the crime.
Where the person counsels another person to commit an offence it is immaterial whether the offence committed in the same way as counseled or not.
In the case of CHOITRAM V. R. (1952) 26 K.L.R 93, the accused had made a statement to the police that he had handled a diamond necklace to an agent in Mombasa with instruction to have the diamonds removed from it by a jeweler and to bring the diamonds to him, which had been done.
Accused counseled the agent to confirm that the statement which was false. The agent made two statements to the police.
1) That he had never received a necklace from the accused.
2) That he had taken the accused to a jeweler whose assistant had removed the diamonds and handed them to the accused. The accused was convicted of counseling another person to give false statement to the police.
“…On appeal against the conviction, the court said that where the offence, which has been advised, is committed and the mode of committing the offence differs as in this case but slightly from the mode advised by the appellant, he cannot in law be excused from liability for it…”
VI. Accessory After The Fact.
Section 387 PC defines accessory after the fact as a person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment. Before a person can be convicted of an accessory after the fact the prosecution must prove the following;
Ø The person has committed an offence.
Ø Another person knew or believed that the first person had committed it, even though he may not know the actual identity of the first person.
Ø That the second person did an act with intent to impede the apprehension or prosecution of the first person and
Ø The act was done without lawful authority or reasonable excuse.
In the case of ANDREA NICODEMO V. R. (1969) H.C.D No. 25, the two accused were charged with theft. There was evidence that the first accused had stolen a bicycle and had taken it to the house of the second accused. The second accused kept it for several days and assisted the first accused in removing the saddle. The bicycle was then recovered by the police. The trial magistrate found that the second accused knew that the bicycle had been stolen and convicted him of being an accessory after the fact c/s 387, Penal Code.
“…The court on appeal held that: To be convicted as an accessory after the fact an accused not only must know or have reason to know about the offence but must take steps for the purpose of enabling the offender to escape punishment. There was no evidence that the second accused took such steps. Conviction of first accused affirmed; conviction of second accused quashed…”
A person may be an accessory after the fact if for example to murder he offers shelter to the murderer with the intention of enabling him to escape punishment. Similarly if a person aids an offender to escape or if he aids an offender by way of destroying incriminating evidence. Persons who help hide the body of a person knowing that person to have been murdered are accessories after the fact to the murder, whereas a natural and probable consequence of their acts it must be likely that the authorities would trace the murderer and the result of that might be that he would escape punishment.
But where a person buries a dead body in fear of his own safety he cannot be convicted as an accessory after the fact to the murder or manslaughter.
A wife cannot be an accessory after the fact for receiving or assisting her husband who is guilty in order to enable him to escape punishment. Furthermore, the wife cannot be an accessory after the fact for receiving and assisting another person who is guilty of an offence in presence of her husband and for which her husband is involved. Likewise the husband cannot be accessory after the fact for receiving and assisting his wife in order to enable her escape punishment.
