Brief facts Patra 12 years old, Paula 8 years old and Hudson 18 years old were standing by the

side of the flyover road on Kampala Northern By-Pass. Patra decided to pull a concrete slab and waited for a public service bus and threw the concrete slab on the bus when Hudson shouted Go on, throw it. And as a result, the concrete slab killed the driver and severely injured several other passengers. Issues raised Whether Patra, Paula and Hudson are criminal liable for murder and causing grievous bodily harm? Law applicable The 1995 Uganda Constitution The Penal code Act Cap.120 The Children Act Cap.56 Case law

Resolving the issues a)Whether Patra, Paula and Hudson are criminal liable for murder and causing grievous bodily harm? Patra The general rule is that a man is not criminal responsible for an act of his conduct unless it is proved that he did the act voluntarily. Therefore, it is important to note that for criminal liability to be established, two elements must be proved and these are, Mens rea and Actus reus. Mens rea is an intention to do an act, which is forbidden under the law. And the Mens rea for is an intention to kill. And according to Section 191 of the Penal Code Act1, malice aforethought is deemed to exist where there is an intention to cause the death of another person. The House of the Lords in R v Maloney2 held that nothing less than an intention to kill or cause grievous bodily harm would constitute malice aforethought. Actus reus is the act or omission forbidden by a particular criminal law. In R v Ward3, the judge had directed the jury that if when the prisoner did the act he must as a reasonable man have contemplated that death or grievous bodily harm was likely to result, he was guilty of murder.

Therefore, applying the law cited above to the facts, it is clear that Patra had the mens rea or the intention by waiting for the bus and also her act of throwing the concrete slab amounted to malice aforethought which becomes the actus reus for murder. It is therefore, provided under Section 188 of the Penal code Act that, any person who of malice aforethought causes the death of another person by unlawful act commits murder. The punishment for murder is death sentence according to section 189 of the Penal Code Act. Under Section 219 of the Penal Code Act (Supra), any person who unlawfully does grievous harm to another commits a felony and is liable to imprisonment for seven years. Conclusion It has already been resolved from above that Patras intention of waiting for the public bus amounted to mens rea and her act of throwing the concrete slab on the bus amounted to actus reus, and thus becomes a principal in the first degree and is therefore, liable for both murder and causing grievous bodily harm. Paula As the general rule states that a man is not criminal responsible for an act unless it is proved that he did the act with voluntarily and with a blameworthy state of mind, therefore Paula will not be liable for any crime. This is simply because she did not participate in any criminal act but she will just be an innocent agent. This can be witnessed in the case of Kanyoro Kamau v R4. In that case, the appellant was jointly charged with one N of murdering her husband. The main evidence against her was that of her mother who testified that she saw the appellant striking the deceased with panga on the head. The mother didnt report the crime to the police. The trial judge found the mother to be substantially a witness of truth. It was held that a passive attitude while a crime is being committed or following the commission of the crime will not ordinarily make a person a principal offender.

1 2

Cap.120 [1985] AC 905 3 [1956] 1 Q.B 351 4 (1965) EA 501

According to Section 88 of Children Act5, provides that the minimum age of criminal responsibility shall be 12 years and therefore, Paula being 8 years old is not responsible for any crime even if she had participated. There is also a rebuttable presumption of law that a child under the age of 12 is not responsible for any crime, unless it is proved that at the time of committing the crime, he or she had the capacity to know that he ought not to do it for example, in the case of R v F.c (a juvenile) 6 a boy, aged 10 years found a wrist watch at a swimming bath and took it home. His mother told him to take it back to the bath. Instead of doing this, the boy cut off the wrist strap, put the watch in a box and took it to a shop to sell it. The boy told the shopkeeper that he had been given the watch as a present, but that he had two watches already, he wanted to sell it. When the shopkeeper demanded a note to authenticate this story, the accused juvenile got a friend of his aged 14 years to forge one, and on the strength of the forged note, the watch worth about 8 was sold for 1. Because of the untruth told by the accused juvenile, as well as the deceit practiced by him, Robinson J had a little difficulty in finding that the boy had a capacity to know that what he was doing was wrong, and he was found guilty of theft by finding. In conclusion, citing the above case, this was not the case for Paul. She didnt show any sign of involvement in committing the crime, and thus, she becomes an innocent agent. Hudson Hudson is criminal liable for the crime committed by Patra because she incited Patra to do the act by shouting Go on, throw it. The mere incitement of another to commit an indictable offence is a common law misdemeanor, whether the incitement is successful in persuading the other to commit, of attempt to commit the offence or not. If the offence incited is actually committed, then the inciter becomes an accessory before the fact to the felony. And an accessory before the fact is one who before the commission of the crime, advices, encourages and or knowingly gives assistance to one or more of the principals. As in the case if an accessory before the fact, it must be proved that the incitor intended that as a result of his or her persuasion, the incitee will bring about the crime.
5 6

Cap.59 2N.R.L.R. 185

This can be witnessed in the case of Invicta Plastics ltd v Clare7, where the defendant had advertised a device with a photograph showing a view of a speed restriction sign, implying that it could be used to detect radar traps. It was not an offence to own one of these devices, but it was an offence to operate one without a license. In confirming the companys conviction for inciting readers of the adverts to commit breaches of the wireless telegraphic act 1949, the division court held that the mens rea involved not only an intention to incite, but also an intention that the incite should act upon the incitement. Therefore, according to the penal code section 21 (1), when a person incites any other person to commit an offence punishable with death, whether or not any offence is committed in consequences of the incitement, and no express provision is made by this code or any other law for the punishment of that incitement, he or she is liable to imprisonment for 10 years and thus, Hudson is liable to serve that sentence. b) Whether Mango and Sema are liable for any offence? The likely for Mango and Sema is theft and theft according to section 254 of the penal code is defined as a person who fraudulently and without claim of right takes anything capable of being stolen or fraudulently converts to the use of any person other than the special owner there of anything capable of being stolen, is said to steal that thing. Below are the ingredients of theft. i) Fraudulently and ii) Without claim of right iii) Takes iv) Anything capable of being stolen For theft to be proved, the prosecution must prove that the accused person had the intension to deprive the owner of the thing permanently or deal with it in a manner that it cant be returned in the condition it was in before it was taken. In the case of R v Williams8, a husband ran a shop and the wife was post mistress at a post office next to the shop. Because the shop was in financial difficulty, the wife without the knowledge of the man got money from the till and used it for the shop business. The defense was that the couple thought they would repay the money.

7 8

[1976] RTR 251 [1953] 1 QB 660

It was held that an intention to repay at a later date is not a defense. It is theft to use another persons money at once without authority even if there is an intension to return later. In conclusion therefore, Mango and Sema are liable to theft and will serve imprisonment not exceeding 10 years as provided in the penal code. C) Whether the police officers are liable in relation to the whole incident. The police officers are liable for neglect of duty. And negligent of duty according to Section 114 (1) of the penal code is when a person who, being employed in a public body or company in which the government has shares, neglects to perform any duty which he or she is required to perform by virtue of such employment, commits an offence and is liable on conviction to imprisonment for a term not exceeding 5 years. The police officers can also liable for false imprisonment. False imprisonment is a restraint on the liberty of the person without lawful cause, either by confinement in prison, stocks, house, or even by forcibly detaining the party in the streets, against his will. This can be evidenced in the case of Solomon Avone v Ali9. In this case, the plaintiff was arrested for 41 days as a result of which he suffered humiliation. The plaintiff was arrested on a mare suspicion that he had been a member of the former state research bureau. The government had not passed any law making it an offence to have been a member or been suspected of the same. Defendant admitted liability and asked court to assess damages. The court held, inter alia, that: i) Mere suspicion of being a member of the former stated research bureau was not a ground for lawful detention. ii) This was a case where exemplary damages ought to be awarded, as there was no acceptable excuse at all for the arrest. Therefore, in conclusion, citing the above case, the police are liable for both neglect of duty and false imprisonment of Mr. Kato.

[1978] HCB 42