Law 288 - Criminal Law II Lecture 9 2023/2024 PDF

LAW 288- CRIMINAL LAW II LECTURE 9 OFFENCES AGAINST THE PERSON: ASSAULT, KIDNAPPING, ABDUCTION, CHILD STEALING & ABANDONMENT OF INFANT FACULTY OF LAW, KNUST 2023/2024 LECTURE OUTLINE Offences Against the Person : Assault, Kidnapping, Abduction &...

LAW 288- CRIMINAL LAW II LECTURE 9 OFFENCES AGAINST THE PERSON: ASSAULT, KIDNAPPING, ABDUCTION, CHILD STEALING & ABANDONMENT OF INFANT FACULTY OF LAW, KNUST 2023/2024 LECTURE OUTLINE Offences Against the Person : Assault, Kidnapping, Abduction & Child Stealing Abandonment of infant Conclusion  INTRODUCTION  This lecture discusses the offences of Assault, kidnapping, abduction and child stealing, which are offences against the person.  By the end of the lecture, it is expected that students will understand the nature of these offences, their essential elements and be able to tell their occurrence or otherwise in a given set of facts.  OFFENCES AGAINST THE PERSON This lecture discusses other offences against the person. These are: Assault Kidnapping, Abduction, Child Stealing, and Abandonment of Infant.  ASSAULT OUTLINE Introduction Assault Battery Assault Under Ghanaian Law (Act 29) Assault & Battery Assault without Battery Imprisonment Defence Conclusion  INTRODUCTION One of the primary functions of Criminal Law is the protection of persons from unlawful harm ranging from a simple assault to homicide. Assault is any threat of unlawful harm done to a victim without his consent. It can take different forms and may be as simple as brandishing a fist in a person’s face or as complicated as pointing a gun (even a toy gun) at someone; as long as the victim is put in a state of the fear of harm.  INTRODUCTION (cont.) Assault becomes battery where the accused person makes physical contact with the body of the victim without his (the latter’s) consent. Such contact does no need to lead to harm. Any forcible bodily contact will suffice. Whereas in the Law of Tort there is a distinction between assault and battery, there is no such distinction in Criminal Law. This lecture discusses that offence of assault, first generally as a Common Law offence and then particularly within the context of the Criminal and Other Offences Act, 1960 (Act 29)  ASSAULT Definition: Generally, the offence of assault is committed when a person intentionally or recklessly causes another person to apprehend the application of immediate unlawful violence to him. More simply described, an assault is a threatened battery.  ASSAULT (cont.) The mens rea of Assault: The required mental element for the commission of the offence of assault is intention i.e. the intention to cause the fear of harm or violence.  ASSAULT (cont.) The actus Reus of Assault: The actus reus of assault is committed where the accused causes another to apprehend the application of immediate unlawful force. There is no assault if the victim did not apprehend unlawful force perhaps because he was asleep because he had his back turned to the accused because he was blind  ASSAULT (cont.) Actus Reus of Assault (cont.) Where the victim is aware of the threat being made but knows that it will not be carried out, there can be no assault as there will be no apprehension of contact. Read Tumberville v Savage (1669) 1 Mod Rep 3  ASSAULT (cont.) Actus Reus of Assault (cont.) Pointing a loaded gun at a person would amount to an assault and the law is the same if the gun is not loaded unless the person at whom the gun is pointed knows or believes it to be unloaded. R v St George (1840) 9 C & P 483  ASSAULT (cont.) Actus Reus of Assault (cont.): There must be apprehension, not fear in terms of cowardice – it is irrelevant whether or not that the victim is courageous. The unlawful contact apprehended does not need to be violent in the sense that the word ‘violence’ is normally understood. “…[A]ny unlawful touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, rude, or aggressive …” - Faulkner v Talbot 3 All ER 468  ASSAULT (cont.) Elements of Assault – Immediacy - The victim must apprehend immediate violence for this offence to lie. Threat must be imminent but may not be instantaneous. In Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr App R 234 it was assault to stand outside the victims window and stare in – while she was dressed in nothing but a short pink night dress – with intent to frighten her and causing her to apprehend contact.  ASSAULT (cont.) Elements of Assault: (cont.) – Words alone can constitute an assault where the victim apprehends the possibility of an imminent force – R v Ireland and Burstow AC 147 Words may also negate what otherwise might be an assault. In Turberville v Savage (1669) the defendant placed his hands upon his sword and said: ‘if it were not assize time I would not take such language from you.’  BATTERY Definition: Battery is committed when a person intentionally or recklessly inflicts immediate unlawful violence/harm on another person.  BATTERY (cont.) Mens Rea of Battery – The mens rea of the offence of battery is intention and or recklessness. Actus Reus of Battery – Infliction of immediate unlawful violence on another person. Any application of force is sufficient. Harm or injury need not be caused.  BATTERY (cont.) Elements of Battery – Ordinary touching in the cause of daily life is not battery, the touching must be hostile. The application of force need not be direct. Striking ‘A’ and thereby causing injury to ‘B’ might amount to a battery to ‘B’, as in Haystead v Chief Constable of Derbyshire where the defendant punched ‘A’ who was holding a child in her arms. The child fell, hitting its head on the floor. The defendant was guilty of battery in respect of the child.  ASSAULT UNDER ACT 29 Section 84 of the Criminal and Other Offences Act, 1960 (Act 29) states ‘A person who unlawfully assaults any person is guilty of a misdemeanor’. Under section 85 (1) of Act 29 assault includes: assault and battery; assault without actual battery; and imprisonment  ASSAULT & BATTERY UNDER ACT 29 Section 86 (1) defines assault and battery under Ghanaian law. Essential elements – forcible touch; forcible touch by or caused by the accused; intention to cause harm, pain or fear or annoyance to another person; without the consent of the other person. ASSAULT & BATTERY UNDER ACT 29 (cont.) The definition of assault and battery in section 86 (1) of Act 29 is subject to the provisions of Section 86(2) of Act 29 which relate to the obtaining consent to forcible touch by deceit or where the victim is incapable of giving consent for reasons such as infancy, insanity or unconsciousness. The following slides illustrate section 86(2) of Act 29.  ILLUSTRATIONS Subsection (1) ‘A’ strikes ‘B’ or spits upon him, or causes a dog to bite him, or in any other manner causes him to fall or be thrown upon the ground. Here, if ‘A’s intention was to cause harm, pain, fear or annoyance to ‘B’ or to excite ‘B’s anger, ‘A’ is guilty of an assault and battery.  ILLUSTRATIONS (cont.) Subsection (1) ‘A’ puts his hand on ‘B’s shoulder in order to attract the attention of ‘B’, using no unnecessary force. ‘A’ is not guilty of an assault and battery. Subsection (2) ‘A’, under false pretence of surgical treatment, induces ‘B’ to consent to harm or pain. ‘A’ is guilty of an assault and battery.  ILLUSTRATIONS (cont.) Subsection (2) ‘A’ kicks ‘B’, who is insensible. ‘A’ is guilty of an assault and battery even though the kick be merely such that no pain will be felt by ‘B’ upon his recovery. Subsection (2) ‘A’ pushes ‘B’ so as to cause him to fall into water. ‘A’ is guilty of an assault and battery although the push is so slight as not of itself to be material. ASSAULT WITHOUT ACTUAL BATTERY – ACT 29 Section 87(1) of Act 29 defines assault without actual battery as follows: “A person makes an assault without actual battery on another person, if by an act apparently done in commencement of an assault and battery, the person puts the other person in fear of an instant assault and battery,” See Bruce-Konuah v The Republic GLR 611. Definition is subject to section 87(2) of Act 29. READ  ILLUSTRATIONS Section 87 (2)(a) ‘A’ points a pistol at ‘B’ in a manner that gives ‘B’ reasonable ground for apprehending that he will be immediately shot. Here ‘A’ is guilty of an assault, although ‘A’ does not intend to fire, and although the pistol is not loaded, and although, ‘A’ knows that it is not loaded. Section 87 (2)(b) ‘A’, at a distance of 10 yards from ‘B’, runs at ‘B’ with apparent intention of striking him and intending to put ‘B’ in fear of an immediate beating. Here ‘A’ is guilty of an assault, although he never comes within actual reach of ‘B’.  ILLUSTRATIONS Section 87 (2)(c) ‘A’, being near ‘B’, lifts a stick and threatens that he will at once strike ‘B’, unless ‘B’, will immediately apologise. Here ‘A’ has committed an assault.  IMPRISONMENT UNDER ACT 29 Section 88(1) of Act 29 provides: “A person imprisons another person if, intentionally and without the other person’s consent, that person detains the other person in a particular place, of whatever extent or character and whether enclosed or not, or compels the other person to move to or be carried in a particular direction.”  IMPRISONMENT UNDER ACT 29 Assault by imprisonment simply means that the freedom of movement of the person imprisoned is restricted. See Asante v The Republic 2GLR 177  DEFENCE Consent by victim is a defence in assault and battery. That notwithstanding: consent obtained by deceit is no consent. Section 86 (2) (a) consent of the victim to an assault will inure to the benefit of the perpetrator if it is transient and trifling. the accused will be held liable for assault, in spite of consent, if the assault caused or is likely to cause bodily harm. Section 86 (2) (b) and 42(a) of Act 29. Defence of consent is applicable to contact sports which does not pose any danger.  DEFENCE (cont.) In Comfort & Anor v The Republic 2GLR 1, Osei-Hwere J (as he then was) stated: “By section 86 (1) of the Criminal Code, 1960 (Act 29), a person commits an assault and battery when, essentially, there does not exist the other person’s consent. Consent, therefore, generally negatives any offence of assault. I say “generally” because I concede that the victim’s consent cannot be a defence for an assault if the blows inflicted are, likely to cause bodily harm. "Bodily harm," of course, includes, any hurt or injury calculated to interfere with the health or comfort of the victim and, although it need not be permanent, it must be more than merely transient and trifling.” KIDNAPPING  KIDNAPPING  Section 89 of Act 29 creates the offence of kidnapping. Section 90 defines the offence.  A person commits the offence of kidnapping when that person:  unlawfully imprisons another person and takes that person out of the jurisdiction of the court without the consent of the victim; or  unlawfully imprisons another person within the jurisdiction of the court but does so in a manner that prevents that other person from applying to a court for his/her release or in a manner that prevents the victim or other entitled persons from knowing the place of the victim’s confinement.  KIDNAPPING (cont.)  There is an element of intention in the offence of kidnapping which differentiates it from other offences that may involve the detention of a person.  To establish the offence of kidnapping, it must be proved that there is an intention to prevent the victim and other person from applying to a court for the release of the victim or from knowing the place of the victim’s confinement.  Cases  R v D (1984) 3 WLR 186  R v Reid (1972) 2 ALL ER 1350  PUNISHMENT  The offence of kidnapping is a second degree felony, punishment for which is provided in section 296 (2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).  It is punishable by a term of imprisonment not exceeding ten (10) years. ABDUCTION, CHILD STEALING, ABANDONMENT OF INFANT  ABDUCTION  Section 91 creates the offence of abduction while section 92 defines the offence.  The offence involves:  unlawfully taking a child under 18 years from the lawful possession, care or charge of a person, OR  detaining and preventing the child from returning to the person who has lawful possession, care or charge of the child,  This is done with the intention to:  deprive the person entitled to the possession or control of the child, OR  cause the child to be carnally known or unnaturally carnally known.  ▪ Knowledge of the fact that a child was in the possession, control, care, or charge of some other person is essential to ABDUCTION establishing the offence of abduction. (S. 92 (3)). (cont.) ▪ READ Denyo v The State (1966) GLR 474 on age of a victim of abduction.  CHILD STEALING  Section 93 creates the offence of stealing of a child below fourteen (14) years.  Section 94 defines the offence as unlawfully taking or detaining child under 14 years with the intent to:  deprive the child of the possession or control to which any person is entitled OR  steal anything on or about the body of the child, OR  cause harm to the child.  R v Djomoh (1960) GLR 193 CHILD STEALING (cont.) For the purposes of proving the offence of child stealing, it is not necessary to prove that the child had been taken from the possession, care of charge of any person as long as it is shown that some person other than the accused person was entitled to the control or possession of the child. (Section 94 (2)) SPECIAL PROVISIONS ON ABDUCTION & CHILD STEALING  Section 95 makes some special provisions regarding the offences of abduction and child stealing thus:  It is not necessary to prove lack of consent on the part of the child taken or detained. It is sufficient if the child is persuaded, aided or encouraged to depart from or not return to the possession, control or care of an entitled person. (Section 95 (1) (a), R v Robins (1844) 1 Car & K 456)  The offences of abduction and child stealing may be committed even for temporary periods. (Section 95 (1) (b), R v Timmins (1858-61) 8 COX CC 401) SPECIAL PROVISIONS ON ABDUCTION & CHILD STEALING  Unless a person (A) obtains consent from the person entitled to give consent (B) and the consent is obtained for the purpose for which the person (A) takes or detains the child, such taking and detention will be unlawful. (Section 95 (1) (c))  For example, a person may obtain the consent of a parent to detain a child in school for lessons but if the purpose for the detention turns out to be for sexual exploitation, the detention is unlawful.  Per section 95 (d), persons having temporary possession, care or charge of a child for a special purpose, such as attendant, employer, school master, or in any other capacity can also be liable for the offences of abduction or child stealing if they engage in acts consistent with the offences of abduction and child stealing but which they not entitled to engage in as part of the special purpose. (Section 95 (1) (d)) SPECIAL PROVISIONS ON ABDUCTION & CHILD STEALING  Under section 95 (1) (e), a person shall not be held liable for the offences of abduction and child stealing if that person’s action was done in the bona fide belief of being entitled by law as a parent or guardian, or by virtue of any other legal right, take or detain the child for the purposes of taking or detention. (NB. Take note of the purpose of the taking or detention.)  This provision applies notwithstanding the provisions regarding mistake of law in Part One of Act 29.  According to section 95 (2), the exemption under section 95 (1) (e) does not apply in cases of  mistaking the age of the child abducted or stolen,  taking or detaining a child for immoral purposes.  R v Prince (1874-77) 13 COX CC 138  ABANDONMENT OF INFANT  Section 96 creates the offence of abandonment of infant.  The offence is committed where a person who is bound by law or by virtue of an agreement or employment to keep charge of or maintain a child under 5 years abandons the child by leaving the child at a hospital, at the house of any other person or in any other manner.  R v White (1871-74) 12 COX CC 83  PUNISHMENT  The offences of abduction and abandonment of infant are misdemeanours punishable by a term of imprisonment not exceeding three (3) years. (Section 296 (4) of Act 30).  The offence of child stealing is a second degree felony, the punishment for which is a term of imprisonment not exceeding ten (10) years. (Section 296 (2) of Act 30).  CONCLUSION ▪ This lecture has involved the discussion of offences against the person. It discussed the offences of Assault, kidnapping, abduction, child stealing and abandonment of infant. These conclude the lectures for the semester.  END OF LECTURE 9 ESSENTIAL READING Statutes The Criminal and Other Offences Act, 1960 (Act 29) as amended by Criminal Offences Amendment Act, 2003 (Act 646) The Criminal and Other Offences Procedure Act, 1960 (Act 30) Books Adjei DD, Contemporary Criminal Law in Ghana (3rd edn, G-Pak Ltd 2021) 353 – 356; 375 – 388. Baker D, Glanville William: Textbook of Criminal Law (4th ed, Sweet & Maxwell 2015) 433 – 437. Ofori Amankwah EH, Outline of Criminal Law Lectures (Revised ed, 2wenty 3hird Solution 2012), 124-129, 179-189. Cases All cases referred to during the lecture  ACKNOWLEDGEMENT The Criminal Law Teaching Team acknowledges the foundational work of Justice Dr. Richmond Osei-Hwere in the preparation of this lecture slides. The team also acknowledges the immense contribution of Mrs. Delali A. Gawu to the research and preparation of this lecture slides. Stephen Ofori |[email protected] Faculty of Law, KNUST, 2023/2024