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Chapter 10 GENERAL RULES OF CRIMINAL RESPONSIBILITY Knowledge of Criminal Law A public prosecutor cannot hope to be or ever become a public prosecutor worth the name if he/she has no idea about elements of common offences often tried in subordinate courts, such as rape, house-breaking or burglary, stealing, assaults, robbery, cheating, forgery, abusive language, to name but a few. Such a public prosecutor will not walk into the court room with any confidence and he is bound to find his task almost impossible. He will be groping in the dark throughout the trial, and the chances will be that he will be confused , will confuse the witnesses as well as the court. To call a spade a spade, a public prosecutor who does not know elements of simple offences is bound to make himself a fool in a court room. No one, of course, expects a public prosecutor, who, more often that not, a mere police officer, to know the intricacies of the law. But a public prosecutor must have some basic knowledge of elements or constituents of offences of common occurrence. Such knowledge is as much his tool as are his police files and exhibits. Complete ignorance on the part of a public prosecutor of simple principles of law cannot be tolerated by any judicial system that uses public prosecutors in the dispensation of criminal justice. General rules of criminal responsibility As a general rule, a person cannot be guilty of an offence unless he has done an act which the law prohibits or has omitted to do that which the law requires him to do, and that the act or omission was with a guilty mind or with mens rea. As they say in Latin, “Actus non facit reum, nisi mens sit rea”, which means: the act itself does not constitute guilt unless done with a guilty mind. In other words, as a general rule, the act done or omission made must be one which the law prohibits and it must have been done or omitted to be done with intent to cause the result. To state the principle differently, in order to prove that an accused person is guilty of an offence, you must prove that actus reus, that is, the act done and mens rea, that is, the guilty mind. As is usual with the conduct of human affairs, intention is not always capable of positive proof. It is often inferred from the conduct of a person and the circumstances in which he so conducted himself. If, for instance, a person pursues a line of active conduct which results in harm to some person or damage to some property, the question whether he intended that result will depend on whether he could have foreseen the consequences of his active conduct. To take a simple example, if a man were to throw a stone into a crowded restaurant and the stone causes some injury to some person in the restaurant, the intention to cause injury to some person will be inferred because injury to some person in the restaurant was a foreseeable consequence of the act of throwing a stone in the crowded restaurant. The principle that a man cannot be guilty of an offence unless the act or omission was with intent would appear to arise from the ethical principle that it is wrong to punish a man for a course of conduct which produces mischievous results which he neither intended nor could have foreseen. On the basis of that principle, we have several rules which are discussed below. Bona fide claim of right A person is not criminally responsible for an act or omission which was done or omitted to be done in the exercise of a bona fide claim of right and without an intention to defraud (see s. 9 PC). In the case Charles Makanyaga s/o Makobo v. Republic, (1967) HCD n. 271, the accused was convicted of stealing cattle and sheep from his uncle. On a prior occasion the accused had openly claimed a right to the cattle and sheep, and he openly took them in the afternoon in the presence of the complainant’s wife and another person. The High Court held that even if the accused had no right to the animals, it would be a defence that he had an honest belief, based upon reasonable grounds that he had a right. The conviction was quashed because the trial magistrate had failed to consider that issue...

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