KAMPALA INTERNATIONAL UNIVERSITY

SCHOOL OF LAW- DIL YEAR 1 SEM II

COURSE NAME: CRIMINAL LAW 11
COURSE CODE: DIL 2201

LECTURE NOTES

In criminal law II we look at the elements of each offence and these include following;
1. The definition of the offence which consists of the actus reus and mens rea
2. The gravity of the offence(felony or misdemeanor)
3. The punishment/sentence

This requirement rests on Article 28(12) of the constitution which provides that no person
is to be convicted of an offence unless it is defined and the penalty for it is set by law. Offences
are classified as; offences against the person, offences against the state, offences against
public tranquility, etc
And each one of them is defined and has a maximum penalty attached to it. Many criminal
offences are defined by the Penal code act where as others are set down in various other acts
e.g anti corruption act, traffic and road safety act

OFFENCES AGAINST THE PERSON:

Homicide:

The killing of any person by another is homicide. Note however, that not all homicides are
criminal.

Where the homicide is unlawful, the offence may be; murder, manslaughter, infanticide, or
causing death by dangerous/ reckless driving. In each of these cases, the charge is
sustainable where;

i) The deceased dies within a year and a day s. 198

ii) In the case of a child where it has completely proceeded in a living state from the
body of its mother. S.197

Murder s. 188
A person who out of malice aforethought causes the death of another by unlawful act or
omission is guilty of murder. The mens rea in the offence of murder in malice aforethought
while the actus reus is the act or omission from which death resulted.

Assignment ; What is Causing death? s. 196.

Lecture notes prepared by Mbabazi Cynthia R. Page 1

Malice aforethought

This is the mens rea for the offence of murder. s. 191

Malice aforethought is a premeditated intention to kill. It is the mental condition that

motivates one individual to take the life of another without just cause. It is a conscious and
deliberate intention to cause death to a person. It is a willful predetermination to cause the
death of another person. It is usually inferred from the circumstances surrounding the
unlawful act that caused the death. Therefore, the circumstances necessary to establish
malice aforethought as held in Bukenya & Ors v Uganda (1972)1 EALR 549 are;

i) An intention to cause the death of any person whether such is the one actually
killed or not.
ii) Knowledge that an act or omission will cause the death of a person.

Read: Uganda v Ochieng & Ors (1976) HCB 204

It therefore goes without saying that where an unlawful homicide/ killing occurs without
such predetermined intention, the offence charged should be the lesser one, manslaughter
but not murder.

Malice aforethought is established by proving a premeditated intention to kill. A person is

guilty of murder if he intends to bring about the death of a person and he actually causes it;
the death should occur within a year and a day. If forexample; A shoots B in the stomach
causing damage to his internal organs and B is hospitalized for one and a half years after
which he succumbs to kidney failure as a result of the injuries he sustained from A’s shooting,
A should not be charged with murder because the death did not occur within a year and a
day. However, if the death occurs within say 9 months, A should be charged with murder.

Types of malice

a) Express Malice
The term is used to describe the willful premeditated determination to bring about harm to
another. Express malice can be inferred from the accused’s own confession that he hated the
deceased. A person who is forced to kill has no malice aforethought.

b) Implied Malice
Generally malice is implied when death occurs during the prosecution of some unlawful
design. In the case of a step parent who kills their step child, malice can be inferred from the
hateful words spoken about the child or to the child accompanied with harsh treatment
afforded to the child which treatment results into the child’s death. Malice is implied where
ones actions indicate ill will or an intention to do harm or cause death.

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It is a general rule that when a man commits an act, unaccompanied by any circumstance
justifying its commission, the law presumes that he intended to produce the consequences
which have ensued. Read: R V Katunsi 13 EACA 154

Malice may be implied when;

a) there’s intent to do an unlawful act known to be harmful or dangerous.

b) Knowledge that death or grievous harm are likely to result. This can be illustrated by the
case of Mongola V R (1963) E.A where a seven old months baby was abandoned in the bush
where by even if it cried, it could not be heard.

c) Read:Constructive Malice

d) Transferred Malice

The doctrine of transferred malice applies where the mens rea of of one offence can be
transferred to another. Forexample; Ashoots at B intending to kill B but misses and hits and
kills C. transferred malice can operate so that the mens rea of A (intention to kill B) can be
transferred to the killing of C. A will be held liable for the murder of C despite the fact that he
did not actually intend to kill C.

In R v Saunders(1573)2 Plowd 473, the defendant gave his wife an apple which he had
poisoned with arsenic. He wanted to kill her so he could marry another. The wife wife took
a bite of the apple then gave it to their daughter. The daughter died. Court held that the
defendant was liable for the murder of his daughter although she was not the one he had
intended to kill. His intention to kill his wife was transferred to his daughter. See s. 191

However, transferred malice does not operate where the crime which occurred was different
from that intended.

Proof of malice aforethought:

Malice aforethought can be found in the nature of weapons used and the part of the party to
which such weapons are applied.

In Uganda V Sebagusi & Ors (1998) HCB 20, the deceased was hit on the head with a hoe
twice. The doctor’s evidence showed that the deceased’s head was cracked, thus internal
bleeding from which he died. It was held that the accused killed with malice aforethought.

Read: Uganda v Kassim Obura(1981) HCB 90, ,Uganda vs. Turwomwe (1978) HCB 182, Akol
Patrick & Ors v Uganda C.A Cr. App 60/2002, R v Vickers(1957)2 All E.R 741,Hyam V DPP, DPP
v Smith,

Read s. 194 diminishing responsibility.

Punishment for murder…………………..

Lecture notes prepared by Mbabazi Cynthia R. Page 3

Manslaughter S.187

Causing the death of another by an unlawful act or omission arising from negligence whether
or not death was the intention of the accused.

Manslaughter is generally differentiated from murder by absence of malice aforethought.

Manslaughter is therefore a minor offence to murder. Manslaughter is a killing that happens
without premeditation, deliberation and malice.

(read and define : minor and cognate offences)

Generally where a homicide occurs with no intention on the part of the person who caused
it, such offence will be trated as manslaughter and not murder. Such scenarios include; killing
on provocation, self defence or accident. The scenarios above are treated as manslaughter
because they negate the mental element (mens rea) of murder which is malice aforethought.

Voluntary and involuntary manslaughter

Voluntary manslaughter consists of an intentional killing that is accompanied by additional

circumstances that mitigate but do jot excuse the killing. The most common type of voluntary
manslaughter occurs when a defendant is proked to commit the homicide.

Provocation (ss. 192, 193)

Provocation is some unlawful act or series of acts done (including words) which would cause
in any reasonable person and actually causes in the accused a sudden and temporary loss of
self control rendering the accused so subject to passion as to make him or her for the moment
not to master his own mind. R v Duffy (1949)1 All ER 932

It is not a total defence per se but merely operates to reduce the charge of murder to
manslaughter.

However in some cases, courts have argued that when dealing with people who have
abnormal mental disorders, such mental characteristics should be taken into account in
assessing the standard of control expected of a defendant. See R v Thornton(1996)1 WLR
1174.

Conditions under which it may be raised;

a) The deceased must have done a wrongful act to the accused or to his relative.
b) The act/ insult must have caused rage and deprived the accused of his power of self
control. The test applied by courts is what effect the conduct considered provocative
would have on an ordinary person.
In Bedder v DPP (1954) WLR 1, the accused who was sexually impotent tried
unsuccessfully to have sexual intercourse with a prostitute. She jeered at and kicked
him causing him to lose self control. He stabbed and killed her. On a charge of murder

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 he pleaded provocation and argued that the proper test to be applied was what the
reaction of a reasonable impotent man would be. However, the House of Lords upheld
the effect which the conduct of a prostitute would have on an ordinary person and
not an impotent person.
Provocation can not be considered if it is shown that the accused merely lost his
temper.
The test applied is an objective one and varies from one case to another depending
on the circumstances. In R v Davies(1975)1 QB 691, the defendant killed his wife
after seeing her lover walk towards her place place of work. It was held that this did
not amount to a provocative act that would cause a reasonable man to lose self
control.
Read: R v Ahluwalia (1993) Cr. App133,

c) It must be shown that the killing was done during the heat of passion. i.e in the shock
of the moment before the accused has had time to cool off. It should be
unpremeditated. The killing must occur in close proximity to the provocative insult.
In Okwang William V Uganda CACA 69/2002, the appellant had misunderstandings
with his wife(deceased) and she returned to her parent’s home. The deceased was
impregnanted by another man and the appellant got to know about it and when he
visited the deceased at her parent’s home, he found her conversing with the very man
who made her pregnant. A struggle ensued and in the process, the appellant picked
up a knife intending to stab the man but instead stabbed the deceased. She died from
the stab wounds and he was charged with murder. The appellant raised the defence
of provocation at his trial and the judge rejected it. That the accused already that the
deceased was pregnant by the very man he found her with and that there was ample
time for his passion to cool down from the time when he knew about her pregnancy
to the time of the assault. Court of Appeal dismissed the appeal.
Read: Ikuku alias Maina Nyaga V R (1965) EA 496
Sowedi Oasire V Uganda SCCA 28/1989
Yakoyadi Lakora V R 1960 EA 323

d) The retaliation should be proportional.

Read: www.e-lawresources.co.uk/Provocation.php

Note the difference between murder and voluntary manslaughter. In murder, the intention
to kill is premediated where as in voluntary manslaughter there is an unpremeditated
intention.

Self defence

The other example of voluntary manslaughter is self defence.

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NB. Refer to the Principles of self defence covered in Criminal law I.

See S. 15
Read handout

The kind of conduct that amounts to self defence is to be determined by principles of English
law. The essential elements of the defence were summarized in Uganda v Ojok (1992-
93)HCB 54;
a) There must be an attack on the accused.
b) The accused must as a result have believed on reasonable grounds that he was in
imminent danger of death/ grievous body harm.
c) The accused must have believed it necessary to use force to repel the attack made
on him.
d) The force used must be such force as the accused believed on reasonable grounds
to have been necessary to prevent the attack.
In determining the reasonableness of the force used, regard must be had to the particular
circumstances of each case.
Read handout

Involuntary manslaughter

It is the unlawful killing of another without intent. The absence of the intent element is the
essential difference between voluntary and involuntary manslaughter. Involuntary
manslaughter usually arises from improper use of reasonable care or skill or from omission
to perform a duty or from negligence which results in the death of another. For example
failure of a doctor to give reasonable care which results in the death of a patient. Another
example is where a person is killed as a result of reckless driving.

In such cases, the existence of the duty is essential because the law does not impose criminal
liability for a failure to act unless a specific duty is owed to the victim.

Manslaughter is also involuntary where one kills as a result attempt to commit another
unlawful act. For example armed robbery (refer to contructive malice)

Read ss. 199- 203

Further reading on manslaughter-

legal-dictionary.thefreedictionary.com/manslaughter

Cases:
R V thornton 1992)1 ALL ER 306
R V Larkin (1943)1 All e.r 217
R v Morhall (1995)3 All E.R 659.

Lecture notes prepared by Mbabazi Cynthia R. Page 6

Circumstances under which homicide is justifiable
1. Death sentence
Where a proper officer of Government executed a person who has been condemned
to death by the courts of law, this execution must be done in a way authorized by law
in Uganda i.e by hanging.

2. Medical reasons for example where a doctor has to choose between saving the life of
a mother and unborn child.

3. Riot suppression
In the case of a rioting group that refuses to disperse, police are entitled to use
reasonable force and if any of the rioters in so doing gets injured or gets killed, such
a death would be justifiable.
4. Escaping prisoner s. 126 Prisons Act
A prison warder commits no offence in shooting and killing a prisoner who tries to
escape or who having escaped resists recapture.
5. Prevention of violent crime against a 3rd person/party
It is the duty of every citizen to prevent violent crimes being committed against a 3rd
party and where in the prevention of such crime, the offender loses his life, it is
justifiable.
6. Resisting arrest after committing crime
If a person resists arrest, he may be accidentally killed which killing would be
justifiable
7. Self defence.

Punishment for manslaughter…s. 190 PCA……………..

Make a write up on attempted murder, its ingredients and punishment(with case law) s. 204

Kidnapping with intent to murder s.243

Research: the ingredients of the offence, what does prosecution have to prove?, punishment

For guidance, make reference to; Wellard v R(1978)67 Cr. App, Kadir Matovu v Uganda CACA
8/2008, Uganda v Godfrey Tinkamanyire(1988-90) HCB 5 and other materials.

ASSAULTS
(ss. 235-8 PCA)

The expression assault includes battery. In Fagan v Metropolitan Police

Commissioner(1969)1 QB 439, James J said;
“an assault is any act which intentionally or possibly recklessly causes another person to
apprehend immediate and unlawful personal violence. Although assault is an independent

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crime, and is to be treated as such, for practical purposes today assault is generally
synonymous with the term battery and is a term used to mean the actual intended use of
unlawful force to another person without their consent.”

See also R v Williams 1983 Cr. App. 276, R v Burstow 1998 AC 147, 1997 4 AllER 225, R v
Ireland 1998 Cr.App, 1997 WLR 3 534

Forms of assault
1. Common assault: The act of causing the victim to apprehend an imminent application of
force upon her. Fagans case.
2. Battery which involves the unlawful application of force by the defendant upon the
victim.
3. Assault occasioning actual bodily harm.

Under common law, assault is the unlawful effort or attempt to apply to apply force or
violence against a person in an unfriendly manner. The effect of assault is creation of fear in
the mind of the victim.

It is any act by which someone intentionally or recklessly causes another person to

apprehend immediate and personal violence. Spoken words can amount to assault. R v
Ireland(1997) as can a silent phone call. Shaking a fist at someone Stephens v
Myers,showing a gun Lodgon V DPP (1976)
Assault defined in the case of Fagan V MPC(1969)1 QB 439.

The House of Lords defined it as:

“an assault is committed where the defendant intentionally or recklessly causes the victim
to apprehend immediate unlawful personal violence.”

Elements to be proved by prosecution for one to be convicted of assault

Actus reus
1. Apprehension of an intention to use force/ violence
The victim need not be put in fear but must be aware that they are about to be subjected to
violence. If the victim does not anticipate unlawful personal violence there’s no assault(R v
Lamb(1967)2 QB 981) .

Where the victim apprehends immediate unlawful personal violence an assault will be
committed even if there was no actual threat of violence. In Lodgon V DPP (1976), the
defendant pointed an imitation gun at a woman in jest. She was terrified. The defendant
then told her it wasn’t real. It was held that an assault had been committed as the victim had
apprehended immediate unlawful personal violence and the defendant was reckless as to
whether she would apprehend such violence.

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Fear: it must also be proved that the victim was made afraid, i.e fear must have been created
in the mind of the victim. No assault can be committed unless the threats are actually
perceived by the victim. There is no assault if a stone thrown by D flies past V’s head without
him noticing. If however D threatens V with an imitation firearm, this will indeed amount to
an assault unless V knows that the weapon cannot fire. Lodgin V DPP .

In the case of assault involving battery, the actus goes beyond mere threatening to include
actual use of force on the victim.

Can words amount to assault?

In R v Constanza(1997) Crim LR 576, the defendant mounted a hate campaign against an
ex work collegue over a period of 20 months. He sent over 800 threatening letters, would
follow her home, wrote offensive words on her front door etc. as a result, she suffered
clinical depression. On being charged the defendant contended that words alone could not
amount to assault. It was held that words can amount to assault.

2. Immediate
Threats of future violence will not amount to assault. There can be no assault if the its
obvious to the complainant that the defendant is unable to carry out his threat.
Smith v Chief Constable of Woking(1983) 76 Cr. App 234, holding of Kerr LJ.
3. Unlawful:
If the defendant has a lawful excuse to use force, the actions will not amount to assault.
This includes; reasonable punishment of a child, where the victim consents, where the
victim acts in self defence or prevention of crime.
4. Personal violence: the apprehended force must be on the person of victim himself and
not another.
5. Absence of consent: see s. 226 PCA. The accused must not have had the consent of the
victim prior to the assault. forexample where people a shooting a film that involves
violence, there can be no assault because they are presumed to have consented to the
use or threatened use of such violence.
In A.G of Nyasaland V Handerson, the accused was in high spirits picked up the
complainant and rolled him in a carpet and placed a chain around him, for fun. This kind
of play had been ongoing between the two regularly and the complainant enjoyed the
fun. It was held that this was no assault.
6. Anger: the gesture of the accused must have been done in anger. R v Rev. Father
John(1972) HCB 162
7. The complainant must not have provoked the assault, the assault must not have been in
self defence.

Mens rea

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The mensrea is intention to cause the victim to apprehend immediate unlawful personal
violence or being reckless as to whether such apprehension is caused. MPC v Fagan(1969)1
Q.B 439. A policeman was directing the defendant to park his car. The defendant accidentally
drove onto the policeman’s foot, the policeman shouted at him to get off and he refused to
move. The defendant argued that at the time of the actus reus, the driving on to the foot he
lacked the mens rea as it was purely accidental. When he formed the mensrea he lacked the
actus as he did nothing. It held that the driving on to the foot and remaining there was part
of a continuing act.

It is an assault to pick a stone and throw it at somebody or to point a gun at someone else
even though it is unloaded. Mere words however can never amount to assault.
In R v Mbuthia s/o Kaguru 22 KLR 31, it was held that assault must be accompanied by an
act , indicating an intention to use immediate force against another person.

Assault occasioning actual bodily harm s. 236

Occasioning means “causing”. The act or conduct amounting to assault must have resulted
into some harm to the victim.

However, where the harm is not a direct result of the defendant’s assaulting act, the test to
be applied is that in R v Roberts 1971 Cr. App where a girl travelling in the defendant’s car
jumped out of the moving vehicle and sustained several injuries after the defendant tried to
make sexual advances towards her and even took off her jacket.

Stephen LJ said that the test for determining whether the defendant had “occasioned” the
injuries suffered by the girl as a result of her jumping out was this;

was the girl’s jumping the natural result of what the alleged assailant said and did , in the
sense that was it something that could reasonably have been foreseen as the consequences
of what he was saying or doing? Or so unexpected that that no reasonable man could been
expected to foresee it, if it was the later then it is only in a very remote and unreal sense a
consequence of his assault but occasioned voluntarily by the victim which breaks the chain
of causation between the assault and the harm or injury.

Ref; R v Savage 1992 1 AC699

DPP v Parmenter

Actual bodily harm

In Rex V Donovan, bodily harm was defined to include any hurt or injury calculated to
interfere with the health or comfort of the victim. Such hurt or injury need not be permanent
but must, no doubt be more than merely transient and trifling. See also R v Brown 1994 1 AC
212, R v Miller 1954 2 All ER 529 where Lynsekey J said that actual bodily harm includes any
hurt or injury calculated to interfere with the health or comfort of the victim.
What amounts to actual bodily harm?

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According to Archbold, actual bodily harm is capable of including psychiatric injury but does
not include mere emotion such as fear, distress or panic.

1. Cutting off ones hair against their will

In DPP v Smith 2006 2 Cr. App the defendant held down his girlfriend and cut off her pony
tail with kitchen scissors a few weeks before her 21st birthday. The magistrate acquitted him
on the ground that although there was undoubtedly an assault, it had not occasioned actual
bodily harm since there was no bruising or bleeding and no evidence of psychological or
psychiatric harm. On appeal to the divisional court Judge P said;

“….the hair is an attribute and part of the human body. It is intrinsic to each individual and to
the identity of each individual…. An individual’s hair is relevant to his or her anatomy, some
regard it as their crowning glory…even if medically and scientifically speaking, the hair above
the surface of the scalp is no more than dead tissue, it remains part of the body and is attached
to it. While it is so attached in my judgment it falls within the meaning of “bodily” in the phrase
“actual bodily harm”. It is concerned with the body of the individual victim.”

It has been accepted that actual bodily harm includes any hurt or injury that interferes with
the health or comfort of the victim, and which is more than transcient or trifling.

In DPP v Smith Judge P said “actual” as defined in the authorities means that the bodily harm
must not be so trivial or trifling as to be effectively without significance.

In DPP v Smith, Creswell J said that to hair is a vitally important part of a woman’s body and
that to damage an important physical aspect of a person’s bodily integrity must amount to
actual bodily harm, even if the element damaged is dead skin or tissue.

Other injuries that may be charged as assaults occasioning bodily harm are;

2. Loss or breaking of a tooth.

3. Temporary loss of consciousness
4. Extensive or multiple bruising
5. A displaced/ broken nose
6. Minor fractures of bones
7. A recognized psychiatric disorder

Mens rea
Generally, assaults are crimes of basic intent and where one intends or is reckless as to the
outcome of his actions, he will be deemed to have formed the necessary mensrea.
Indecent assault refers to an assault of a sexual nature (see s.147PCA)

Lawful assault

lawful assault is not a crime. It is acceptable under the following circumstances;

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 a) During surgical operation see s.224
b) During voluntary sexual intercourse
c) Lawful sport
d) When effecting Lawful arrest
e) Chastisement/punishment of children by parents

However the force used should not be excessive (see s. 225 PCA)

Punishment for assaults is …………………………………

GRIEVOUS BODILY HARM (ss. 216,219)

Grievous bodily harm is defined as any harm which seriously or permanently injures health
or which is likely to injure health or which extends to permanent disfigurement to any
external or internal organ of the body.

A person commits grievous harm if he inflicts harm that interferes with the health or comfort
of the complainant. If it does not, then its not grievous harm.

In Mohammed v R(1972)HCB 175, where the complainant lost one tooth, on the issue of
whether loss of a tooth amounted to grievous harm, the court held that since the loss caused
merely permanent disfigurement which was no danger to life it only amounted to actual
bodily harm.

Read: Livingstone v R(1972)E.A 196

Rajan v R(1958) E.A 448

OFFENCES AGAINST PROPERTY

THEFT S.254

It is defined as when a person fraudulently and without claim of right takes anything capable
of being stolen or fraudulently converts the use of …..

Elements of the offence

1. Taking(asportation)
This means carrying away or removing anything from the place which it occupies.
It does not necessarily mean that he took something completely to his possession to
constitute taking. The accused is deemed to have taken a thing if he moved it or
caused it to move.

Things capable of being stolen s. 253

a) Inanimate things- these include animals
b) Movable/ mobility
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 A thing must be movable in order to be capable of being stolen. This is because of the
element of taking or asportation. The definition is limited to tangible things and not
intangible things. It follows that immovable things such as shares, patents,
copyrights, etc are not things capable of being stolen.

c) Owned by a person
Abandoned property is not covered by the offence as it is not owned by anyone.

Read: R v Tailor (1911) 1 K.B 674

2. Converting:
In the case of Yorkshire Railway Co. V Mechico (1919) K.B 601 as dealing with goods
in a manner inconsistent with the right manner of the true owner or denying the
owner’s right or asserting a right which is inconsistent with the owner’s right.
However, for conversion to amount to stealing it must be one of fraudulent intent.

Ahmed s/o Mohammed V R (1957) E.A 386

The appellant an advocate received a cheque from a debtor to be paid to his client. He
instead endorsed it in a garage to reduce his own indebtedness. It was held that he
had received the cheque for and account of his client and was therefore guilty of theft
although the cheque had been made payable to his order.
3. Fraud:
There must be an element of fraud in order to constitute theft. That’s to say, if a man
picks up a thing merely to ascertain what it is. This is merely inquisitive taking which
is not theft. Or if one takes something under a mistaken belief that It is his own; then
he can raise the defence of honest claim.
Read: R v Hall(1848).

In order to establish fraud, the intent of the person at the time of conversion has to
conversion;
a) If the intent is to permanently deprive the owner of the thing; it must not be
merely to deprive the owner temporarily e.g if B takes A’s shirt intending to wear
it to a dance and return it afterwords, B is not guilty of theft unless it can be proved
that later he changed his mind to have the shirt for good .
Read: R v William (1953) All E. R 106. In R v Erasomi (1971)2 All E.R. 945, a
woman placed her bag on the floor in a cinema. The accused who sat behind her
took it and searched it for money which he had intended to steal. There was no
money. He placed it back, his conviction for theft was quashed because he did not
intend to permanently deprive the owner of the bag.
b) An intent to permanently deprive any person who has a special interest in the
property. This provision is there to cater for the rights of someone who may not
be an owner but has special interest in the property. E.g a charge on the lien.

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 (what is a lien)

c) An intent to use a thing as a pledge or security. E.g where A takes B’s goods and
pledges them or gives them to another person as security for a loan, this amounts
to theft.

BURGLARY AND HOUSE BREAKING s.295

House breaking is defined as breaking or entering into any building used as human dwelling
with the intention to commit a felony or after having commited such felony(or having had
the intention to commit it) breaks out of the building.

The ingredients of the two offences are the same only that burglary is committed at night
while house breaking is committed during the day. The term night is defined under s. 2(q) to
mean between 6.30 pm and 6.30am.

In the case of burglary, both the house breaking and entry must be done at night. If the
breaking is during the day and the entry at night or vice versa, the offence is not burglary.

Ingredients

1. Breaking:

This is an essential element for both offences. If a man leaves the door of his dwelling
place open and a thief enters through the same open door the offence is neither
burglary nor house breaking because the element of breaking is lacking.

Actual breaking happens when person breaks any part whether external or internal
of a building or opens by unlocking, pushing, pulling, lifting or any other means
whatsoever any door, window, shutter, cellar, flap or any other thing intended to
close or cover an opening in a building or any opening joining/giving passage from
one part of a building to another.

There is breaking under the following circumstances;

a) Where one opens a door with a master key.

b) Lifts a latch
c) Pushes open a closed window
d) Where one who is lawfully in a house such as a servant or guest opens the closed
door to an outsider.

There is no breaking If the window or door is partly closed .

Read: R v Boyle(1954)2 Q.B 292

2. Entry

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 This happens as soon as any part of the accused’s body or any part of the instruments
used by him is in the building.
3. Intention to commit a felony
This is the mens rea. It may be murder, arson, robbery, rape.etc if A honestly believes
that B’s house is on fire and breaks open the front door in order to put out the fire and
on entering discovers that there’s actually no fire and he ends up stealing, he is not
guilty of burglary or house breaking unless he breaks out through another part of the
building (see s. 295 (1)(b)) Otherwise, he will be guilty of theft.
The intention considered is that at the time of entry/ breaking.

Punishment and nature of the offence

Burglary- felony, 10 years,

House breaking- ………………………………….

ROBBERY
ss. 285-7PCA (see Penal Code amendment act 8 of 2006 wc amended s. 286)
This is theft of property that is accompanied by the use violence or threats to use violence
on any person or other property in order to retain or obtain what is being stolen.

Ingredients

1. Use of violence/force
The force should be employed immediately before or immediately after the time of
stealing.
In Njuguna v R (1965 or 6) EALR 583, the accused having burglared a house and
stolen there from was discovered without a chase at a distance of 5oo yards away
where he then resisted the complainant with violence. It was held that the offence
committed was not robbery but burglary and theft because the element of using force
immediately was lacking.

It therefore goes without saying that the offence is not committed where the
complainant is absent.
Also it should be noted that the violence used mustn’t necessary be on the owner of
the property but also on anybody. For example where the robber holds a gun to the
complainant’s child and threatens to shoot them if the property is not handed over.
The violence is seen in the nature of the weapon used and the injury caused to any
person.

2. Theft

Lecture notes prepared by Mbabazi Cynthia R. Page 15

 There must be property stolen. Where the supposed robber is intercepted before he
takes the property and flees without the property, the offence committed is
attempted robbery.( ref. s. 254 on theft)

Punishment and nature of offence;

Felony, 10years
Read:
Opoya v Uganda(1967) EA 752
Kigoye v Uganda(1970) EA 402

RECEIVING OR RETAINING STOLEN PROPERTY s. 314 PCA

It is provided that any person who receives or retains any chattle, money, valuable security,
or other property knowing or having reason to believe the same to have been feloniously
stolen/ or obtained is guilty of the offence.

(the mens rea is knowledge that the property was stolen)

Ingredients

1. Receiving:
To prove receiving, it is sufficient to show that the accused person has either alone or
jointly with some other person had the thing in his possession or has aided in
concealing it or disposing of it. Even mere assisting in disposing with actual
possession of it is not receiving.

The receiving must be dishonest i.e the receiver must have the knowledge that the
property he receives is stolen and he must have the intention to appropriate to his
own use and deprive it
from the true owner. E.g receiving stolen goods with the view of handing them to the
police or true owner is not an offence.
Read: R v Matthews91951)1 All E.R 137
2. Retaining
A person does this when the property comes into his possession without his
knowledge that it was stolen but afterwords he comes to know that it was stolen and
he still retains it.
3. Knowledge that the property had been stolen
A person commits the offence when he receives the property knowing or having
reasonable belief that it had been stolen. For example if the person attempts to sell
the property below the market price, this may be imputed to him as guilt I.e that he
knew that the property he received has been stolen.

4. Proof that the property was stolen.

Lecture notes prepared by Mbabazi Cynthia R. Page 16

 Under s. 314(3)it is a prerequisite for the prosecution to prove that the property was
infact stolen before a conviction or receiving and retaining stolen property can
succeed. It must be proved that the property received had been previously stolen and
obtained by an act constituting a felony or that it had been unlawfully taken.
Read: R v Valenky(1892)2 K.B 597
R v King(1958)2 All E.R 662

Punishment and nature of offence:-

14years imprisonment, felony

Handout-Specific and basic intent crimes

OFFENCES AGAINST MORALITY

RAPE s. 123

It means having unlawful sexual intercourse with a woman/ girl against her will or consent.
This offence is only committed against females by males. This means that a woman cannot
be said to rape another woman.

The term “unlawful” is deliberately inserted to rule out forceful sexual intercourse between
married couples because such sexual intercourse is presumed to be lawful since it has the
backing of law. It follows therefore that a man cannot be said to rape his wife since she is
deemed to have consented to sexual intercourse by virtues of their marriage.

Elements of rape

1. Unlawful Carnal knowledge/ penetration

To prove rape it is necessary to prove carnal knowledge (penetration of the penis into the
vagina)

Ejaculation does not mean penetration. There is no need for emission of semen to be proved.
In R v Salim (1970) HCB 38, a woman was asleep at night when she was suddenly awaked
by finding somebody on top of her. When the man run away, she discovered that there was
seminal fluid over her vagina. It was held that ejaculation without penetration is not rape
but indecent assault.

It is important to note that even partial penetration is sufficient to prove rape, in that even
when the hymen is not raptured the man can convicted of rape.

2. Lack of consent
Consent must be absent at the time of intercourse and where it is present it must have been
obtained willingly and not by use of the threats, force, coercion intimidation,
misrepresentation or impersonation.

Lecture notes prepared by Mbabazi Cynthia R. Page 17

Impersonation happens when somebody pretends to be someone else for example where a
man pretends to be the woman’s husband.

Consent obtained by misrepresentation is not real consent either. This happens where
deceitful tricks are employed. In R v Williams (1923)1 K.B 340, a singing master persuaded
his pupil that sexual intercourse could improve her singing voice and she consented to sexual
intercourse with him. It was held that there was no consent.

Rape may also be found when a person has sex with someone deemed legally incapable of
consenting due to mental illness, impairment, or intoxication. A sleeping woman is not capable
of consenting and there is also no consent where a medical doctor/ witchdoctor has sexual
intercourse with his patient/ client pretending to be treating her.

The punishment for rape is death and it is a felony. S. 124

Where one of the elements/ ingredients is lacking the offence charged will be attempted rape
or indecent assault.

Read:
1. Nakholi v R 1967EA 337
2. Chila & Anor v R 1957 EA 722
3. Hamisi v R 1972 EA 367
4. Abasi Kibazo v U 1969 EA 507

Guiding question: What is the legal position where a woman consents at first and later
withdraws her consent? Will the offence have been committed?

DEFILEMENT
Defilement is provided for under s.129 of the PCA as amended. The offence is committed
when any person performs a sexual act with another person who is below the age of eighteen years.
The term sexual act is defined in s.129 (6) to mean;
i) Penetration of the vagina, mouth or anus however slight of any person by a sexual
organ.
ii) The unlawful use of any object or organ by a person on another person.

It is important to note that with the advent of homosexuality, sodomy and other forms of
sexual practices (e.g oral sex) in Uganda, the definition for defilement was modified to cater
for any person (whether a girl or boy below 18), and any sexual practice hence the reference
to penetration of the anus or mouth.

In addition to that, it caters for all forms of sexual acts like, oral sex, sodomy, etc.

It should be noted that in cases of defilement, the fact the victim consented to the sexual
relations is immaterial. In R v Goviati (1972), the appellant who made arrangements to
have sex with a girl under 14 years in exchange for payment raised the defence that the girl

Lecture notes prepared by Mbabazi Cynthia R. Page 18

had fully consented and cooperated. It was held that the consent of the complainant was
immaterial/ irrelevant to the charge of defilement.

In Uganda v Mulindwa 1975 HCB 206, it was held that where the accused did not know
that the girl was under 14 years/ under age, he could not be exonerated, this is merely a
mitigating factor.

In cases of defilement of a girl, proof of rapture of the victim’s hymen is unnecessary

therefore non-rapture of the hymen of a defilement victim was no proof that there was no
penetration. A sexual act on a girl in defilement cases is deemed complete upon proof of
penetration therefore the slightest penetration possible suffices to constitute the offence of
defilement.

In Habyarimana Ronald Vs Uganda Cr. Appeal No. 68 of 1998 the court held that the
finding of semen all over the victim’s vagina was sufficient. In the instant case, the medical
evidence revealed that the victim’s vulva was inflamed and that sperms were found in the
victim’s vagina though her hymen was not raptured.

Read:

- Uganda v Byamunda 1974 HCB 279,

- Kibaale v Uganda (1999)1EA 198.
- Nfutimukiza v Uganda (1999)1 EA 220.
- Patrick Akol Vs Uganda, Cr. Appeal No. 23 of 1992 SC
- Christopher Byamugisha Vs Uganda [1976] HCB 317;
- Gerald Gwayamadde Vs Uganda [1970] HCB 156.

Read s. 2(3) of the amendment that provides for aggravated defilement.

INDECENT ASSAULTS S . 128 PCA

READ
Hamisi v R 1972 EA 367
Uganda v Venansio Bamuta (1979) HCB 4

ADULTERY S.154PCA
The offence is committed when a married man or woman has sexual intercourse with
somebody other than their wife or husband.

The only ingredient is sexual intercourse. Sexual intercourse and carnal knowledge are
synonymous.

In Alai v Uganda(1967) EA 596, it was held that the term “wife” refers to a wife acquired
through any of the marriages recognized Uganda and is not limited to a wife acquired
through a monogamous marriage.

Lecture notes prepared by Mbabazi Cynthia R. Page 19

CORRUPTION, ABUSE OF OFFICE AND RELATED OFFENCES
FORGERY; c/s 342 & 347 PCA
It is the making of a false document with intent to deceive or defraud. The specific intention
to defraud or deceive must be proved.

(identify the actus reus and mensrea)

Proof of falsity is by handwriting experts. In Kazinda’s case (Uganda v Kazinda HC 138/2012)

it was held that In a case of forgery, the Prosecution must prove the following,

1. That the document is forged /false

2. That it was made with intent to deceive or to defraud.
3. That it was done by the accused.

To forge a document means to make or alter or deal with the document so that the whole or part
of it;
(a) Purports to be what, or of an effect that, in fact it is not
(b)Purports to be made, altered or dealt with by authority of a person who did not make, alter
or deal with or by or for some person who does not , in fact exist or
(c)Purports to be made altered or dealt with by authority of a person who did not give that
authority.
(d)Otherwise purports to be made, altered or dealt with in circumstances in which it was not
made, altered or dealt with.
For a writing to be false, it had to be a writing of a party other than the party that makes it and it
must indicate attempted deception or similarity.

ln Baiganamu Vs Uganda (1973) EA 26 where the Court held that a forged document must tell a
lie about itself. (read case)

Meaning of intention to defraud

In Uganda V Teddy Seezi Cheeye, it was held that to defraud is to deceive by deceit and to deceive
is to induce a man or woman to believe that a thing is true which is false. Shortly put, to deceive is
by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action. R.V
WINES [1953] 2 ALL E.R. 1497

Intent to defraud here means the intention to practice fraud on another person as long as that
person shall be prejudiced by the fraud.

The intention to defraud is established even where there is no intention to cause pecuniary or
economic loss, Welham Vs DPP (1961) AC 103

In R Vs Potter and Another (1958) 2 ALL ER 51 William Potter put on a piece of document a
signature which represented that of his brother.

Lecture notes prepared by Mbabazi Cynthia R. Page 20

It was a standard document usually filed when seeking a driving certificate. The question that arose
was whether the document was false since it bore a forged signature. Paul J asked himself and wrote;
“When William Potter put that signature on the document, was that document then a genuine
one or a false document? I hold that it was a false document because it was falsely filled in. It
was falsely filled in because William Porter knew he had no right to fill it in, he knew that in
filling it in the name of A F Potter, he was doing something to deceive, and he knew that he
did that with intent that his brother could defraud.
I hold therefore that it is a forgery because it was the making of a false document.”

The above quotation seems to say that the answer lies in the intent of the person forging. He must
intend to defraud or deceive and it must be a signature which is not his.

Proof of intention to defraud:

Intention to defraud is mostly proved by circumstancial evidence. for example in Kazinda z case
The fact that after the forgeries the accused took the documents home and jealously guarded them
is indicative of their importance to him. He must have intended to deceive or defraud people.

It was immaterial whether the documents were put to use or not. What was important was whether
they were deceitful or capable of defrauding anyone.

Read :Mbande Vs Republic (1971) EA 553.

OFFENCES UNDER THE ANTI-CORRUPTION ACT 2009

ABUSE OF OFFICE c/s 11(1) e(2)

It was held in the case of Kazinda that abuse of office is committed when the office holder
acts (or fails to act in a way that constitutes a breach of the duties of that office and that to
prove abuse of office the prosecution must prove;

1. That the accused was an employee of a public body

2. That the accused performed the arbitrary act
3. That this act was in abuse of his authority.
4. That the arbitrary act was prejudicial to the interests of his employer.

Lord Mansfield in R Vs Bembridge (1783) 3 Dong K.B 32 referred to a public officer as one
having an office of trust, concerning the public, especially if attended with profit by
whomever and in whatever way the officer is appointed.

He is therefore, “A public office holder who discharges any duty in the discharge of which the
public are interested, more clearly so if he is paid out of fund provided by the public”

According to R Vs Whitaker (1914) KB 1283 an arbitrary act is,“ an action, decision or rule
not seeming to be based on reason, system, or plan and at times seems unfair or breaks the law”.

It is therefore an action or decision that is based on personal will or discretion without

regard to rules or standards. It is a decision that may be made outside the existing law.

Lecture notes prepared by Mbabazi Cynthia R. Page 21

The arbitrary act or omission must be done willfully that is deliberately doing something
which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong
or not.
Cases:
- Uganda v Mugisha Gregory High Court Criminal Case No.150 of 2010 (Anti
Corruption Division)
- Uganda v Eng Bagonza High Court (Anti Corruption Div) Criminal Session Case No. 9
of 2009
- UGANDA v JOHN KASHAKA MUHANGUZI & Ors Cr. session 47 of 2012(H.C)

CAUSING FINANCIAL LOSS s. 20

The ingredients of the offence of Causing Financial Loss c/s to Section 20(1) were laid down
in the cases of Alex Oboth v Uganda Criminal Appeal No. 88 of 2011 where it was held
that to constitute the offence of Causing Financial Loss the following ingredients must be
proved beyond reasonable doubt:

1. That the accused was employed by the Government, a Bank or Credit institution, an
insurance company or a public body at the material time
2. That the accused did any act or omitted to do an act knowing or having reason to believe
that such act or omission would cause financial loss
3. That the Bank or Financial Institution suffered loss
4. That it is the accused who so caused the loss

Cases:
Kassim Mpanga v Uganda Criminal Appeal No. 30 of 1994 (SCU)
Uganda v Walubi High Court Criminal case No. 30 of 2011
`
EMBEZZLEMENT S. 19

The offence of embezzlement is committed where a person being a Director, Officer or

Employee of a Company steals any chattel / money or valuable security, to which he or she
has access by virtue of his or her office. Prosecution must prove the following ingredients;

(a) that there was a Company.

(b) accused was a Director, Official or Employee of that Company.
(c) that he had access to the Company’s property
(d) and that accessibility enabled him to steal money belonging to the Company.

OFFENCES AGAINST THE STATE

It is presumed that criminal law has an objective to ensure that there is stability in the
country. Offences against the state are geared towards protecting the arms of government.

Lecture notes prepared by Mbabazi Cynthia R. Page 22

s. 4 of the Penal Code defines the jurisdiction of the courts in Uganda to extend to every place
within Uganda. It creates an exception with regard to treason, annoying the president,
concealment of treason, terrorism which are offences against the state.

TREASON s. 25 PCA

What is treason?
It is a crime that involves betrayal of one’s country especially by attempting to kill the
sovereign or overthrow the government or deliberately acting to aid its enemies.

Types of treason

The following acts constitute the offence of treason.

- levying war against the country.
- causing or attempting to cause the death of the president.
- ploting to overturn the government.

- aiding or abbeting any of the above acts.

What is an overt act?

Cases
1. Ug. v Yassin Hamisi & Moses Ali HCCS 4 of 1992
2. Gabula Bright Africa V Uganda HCCS 170 of 1991.
3. Ug. V Mike muwonge & Ors HCCS 31/1988
4. Uganda v Hofini & Ors HCCS 7/1992

Punishment for treason- death.

CONCEALMENT OF TREASON/ MISPRISON OF TREASON S. 25 PCA

The offence relates to concealment of acts of treason i.eknowing that one intends to commit
treason and one does not report promptly to the authorities.

In Mataka & Ors V R (1971) EA 495 the Court of Appeal noted that the offence of misprision
is committed when someone who knows that another person is about to commit treason
doesn’t report the matter promptly.

It must be seen that there are two essential factors;

i) the accused person must have had knowledge and not mere suspicion or belief.
ii) Knowledge must be on an intention to execute treasonable acts. Knowledge of that
other person considering or simply discussing possible treasonable action is not
enough.

Punishment- Imprisonment for life.

Lecture notes prepared by Mbabazi Cynthia R. Page 23

TERRORISM S. ….. Anti terrorism Act

In s. 26(6), Terrorism is defined as the use of violence or threats with intent to achieve or
promote political ends in an unlawful manner and involves the use of threats or violence
calculated to put the public in such fear as may cause discontent against the Government.

Ingredients

1. Any unlawful act done to cause discontent against the government.

2. The act must involve violence or threats
3. This act must be calculated/ intended to achieve or promote political ends by making
unpopular. This is the mens rea.

OFFENCES UNDER THE TRAFFIC AND ROAD SAFETY ACT 1998

Note that some offences under the act are offences of strict liability/ statutory offences.

Assignment: With relevant authorities discuss statutory offences and the standard of proof
in such offences. ref. Warner V Metropolitan Police Commissioner (1968)2 All ER 356

Read ss 107-112 and identify the ingredients for each offence and which of the offences are
those of strict liability.

a. Causing bodily injury or death by dangerous driving s. 108(1)

identify the ingredients – Seidi V R 1969 EA 280, Kamau s/o Muga V R 1963 EA 172
b. Driving under the influence of drink or drugs s.111
c. Use of a motor vehicle which is not in good working orders. s.107(1)

OFFENCES AGAINST PUBLIC TRANQUILLITY

UNLAWFUL SOCIETY, ASSEMBLY, RIOT

READ : SS . 56-67 PCA

Read:
1. Chande v Republic 1961 EA 581
2. R v Odinga & Ors 1959 EA 1969 624
3. R v Issa Ndarama & ors 1958 EA 294
4. Wise v Dunning (1902)1 KB 267

Lecture notes prepared by Mbabazi Cynthia R. Page 24