ELEMENT OF AN OFFENCE

1.0 INTRODUCTION

In the accusatorial criminal system applicable in Nigeria, the prosecution must perforce prove all the elements of an offence for which an accused person is standing trial. Every offence has two elements, that is to say, the physical element and the mental element, except strict liability offences which are complete upon the manifestation of the physical element only.
The physical element is the act or omission done or omitted while the mental element is the intent to commit or omit the crime.
The English common law regarded the physical element to mean the actus reus which is a Latin expression meaning guilty act and the mental element otherwise known as the mens rea to mean the guilty mind. While the physical element is manifested in the act complained of, the mental element requires the proof of knowledge and foresight on the part of the accused.

2.0 OBJECTIVES

At the end of this unit, you should be able to:

1. explain what constitutes the physical elements of an offense and its various manifestations
2. identify the different states of mind which constitute the mental element of an offense
3. determine when there is the concurrence of the physical and mental elements as well as exceptions which have been developed through cases.

3.0 MAIN CONTENT

3.1 The Physical Element

The physical element of an offence may manifest by way of a positive act because intent alone, however wicked and condemnable cannot amount to an offence. For example, if I slap a person in a manner not justified by law, I have committed the offence of criminal assault against that person and that slap against him is the physical element.
Also, if I move a bag to the slightest degree with the intention of permanently depriving the owner of the use of that bag, I have committed the offence of stealing against you and the movement of your bag to the slightest degree from its original position is the physical element or the actes reus of that offence. The physical element or the actus reus of an offence can manifest in words in respect of certain offences such as defamation, sedition, taking of unlawful oath and even conspiracy. These offences are committed by words of mouth. The physical element is constituted by words uttered by the accused person.

The physical element also known as the guilty act can also manifest by way of possession. It is immaterial that the accused has not begun to put that thing in his possession to any unlawful use. Section 148 (3) of the Criminal Code provides for unlawful possession of counterfeit coin or of a means of making them. Mere possession of the counterfeit coin is enough to constitute the physical element of that offence. It does not matter whether you have put the money to use by way of using it to buy. For more on this, see sections 150, 154 (2), 155 (1), S. 209 and 213 etc of the Criminal Code Act. Possession here may not be physical only; it can also be through the agency of another person in which case it will be constructive possession.


The physical element of an offence can also manifest by way of a passive state of affairs. If for example, a club or an association in which you have been a member is now banned by government, you are ordinarily supposed to stop forthwith your membership of such a club or
an association. But where you continue membership after the ban now becomes the physical element of that offence.


Also, the physical element of an offence can manifest by way of an omission. Omission is failing or omitting to do what that law has commanded you to do, the failure of which will ground criminal liability. The Criminal Code has criminalized such omissions to include duties imposed on peace officers (police officers) to suppress riot see S. 199 of the Criminal Code, duties imposed on members of the ship’s crew to obey order and duty placed on a family head to supply necessaries for a child under fourteen years of age.
One underlying condition which must be present for omission to constitute the actus reus in criminal law is that such duties criminalized as omissions must be geared towards avoiding risk of serious harm to the person where a special relationship exists between the parties. The mental element or the guilty act can also manifest by way of consequence. In some offences such as murder and manslaughter, it is the consequence (e.g. death) which results from the conduct of the accused person that constitutes the actus reus of such offences.

SELF ASSESSMENT EXERCISE 1

What are the various manifestations of the physical element?

3.2 The Mental Element

The introduction of mental element in crime may be attributable to ecclesiastics who regarded the conscience of men as prime importance. In their view, that which called for atonement was the evil intention or motive which prompted the harmful deed.
The mental element or the mens rea is a reference to the mental element which the prosecution must provide in any particular offence in order to secure a conviction.

It is not in every offence that a particular mental element must be proved. There are different species of variety of mental elements depending on how a particular offence is worded. That is to say, the mental element of an offence is derived not from elsewhere but from the way the offence is worded.
It is suitable to state that five basic concepts which may underline the particular conduct are worthy of mention.
These are

1.  Intention 
2. Recklessness 
3.  Negligence 
4.  Accident and 
5. Unconsciousness 
6. Intention 

This can only be derived from the circumstance of a particular offence. Intention here revolves around the issues of forseeability and desirability.

1. It simply stated that a man intends a consequence of his action when he foresees that it may result in harm and desires that he should do so. Therefore, desire of consequence is the hallmark of intention no matter how vague or unconscious that desire may be. 
2. Thus if for example in the offence of burglary as contained in S. 411 of the Criminal Code, specific intents is to be proved by the prosecution, it must be strictly proved in accordance with the law. See for example the case of R. v. Steane (1974) KB 997. 
3. There is however a distinction between the common law rules and intention can be seen in S. 24 of the Criminal Code. At common law, there is the doctrine of transferred malice as is illustrated in the case of R. v. Latimer (1886)17 QB 359. In Nigeria and particularly under S. 24 of the Criminal Code, a person must act dependently on the exercise of his will (i.e. with intention) before he can be guilty of the offence charged.
4. Compare the above case of Latimer with another case to wit; R. v. Pemblition (1874) LR 2 in which the court said that the intent to harm a group of people cannot be transferred to the breaking of a window. a. Intention and Motive Distinguished 
5. Having seen what intention is all about, it is sound to state that motive is reason for the accused person’s conduct which has induced him to act unlawfully but which does not form part of the metal element of an offence. 
6. Intention therefore must be distinguished from motive, for, according to the third limb of S.24 of the Criminal Code, unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial as regards criminal responsibility. 
7. Motive may therefore take the form of love, fear, jealousy, anger, ambition, etc. Thus, if I kill my wealthy uncle in order to inherit his assets, the intention is manifested in the killing while the motive is the inheritance of uncle’s assets. 
8. But there are certain provisions of the Code in which motive is made the basis of criminal responsibility. See sections 10, 26, 316 (3) and 377 etc of the Criminal Code. 

ii. Recklessness Recklessness represents a situation where the accused person foresees the consequences of his conduct but decides nevertheless to risk it. In that premise, if the accused foresees a consequence which will arise from his conduct as a remote possibility, then he is not criminally liable but if he foresees it as certain to happen, the finding is that he desired the consequence and therefore intended and by extension will be criminally liable.
For a clearer understanding, read the case of R. v. Okoni (1938) 4 WACA 1 9 and R. v. Idiong (1950) 13 WACA 30.
iii. Negligence In negligence, it is said that the accused is blameworthy because a reasonable man (predicating on objective test) ought to have foreseen the possible consequence which will arise form his conduct. Thus negligence is a possible result of one’s conduct which makes him blameworthy.
Under the English law, the degree of negligence which attracts liability in a criminal offence is said to be higher than negligence that will attract liability in a civil matter. To this end, the case of Dabholkar v. R. (1948) AL 221 is illustrative.

In Nigeria within the regime of criminal law, there are degrees of negligence. For example, for a conviction to lie in the offence of manslaughter, the degree of negligence on the part of the accused must be gross or must be of a very high degree.
Thus, a person who drives fast and zigzags along the road in a built up area at night when pedestrians and other vehicles are about shows complete and criminal disregard for the life and safety of others and is guilty of gross negligence. (See R. v Adenuga) and Akerele v. R (1942). There are certain offences in which negligence is made the mental element. For this we refer you to sections 138, 173 (2), 186, 344 etc of the criminal code. Also see the case of Edu v. C. O. P (1952) 14 WACA 16.


It should be noted that section 24 CC does not apply to offences in which negligence is an element. The case of State v. Appoh (1970) is instructive. In that case section 24 cc did not apply because the accused conduct of punishing the victim near a river was a negligent act and the consequence of his game with the victim was foreseeable by a reasonable third party.
See also Opara v. The State (1998). In this case, the accused drove his lorry in a high way at 5.30 a.m. zigzag from right to left, in a manner dangerous to the public, collided with an on-coming pick up from the opposite direction. The pick up burst into flames killing two people on the spot. The accused was charged with manslaughter, causing death by dangerous driving. In his defence, the accused said he had crossed the road, and parked his lorry when the pick up van ran into his lorry and hit the vehicle.

The trial court rejected his defence and convicted him on all the three counts. Allowing his appeal, the Court of Appeal said that the degree of negligence required to support a charge of manslaughter must amount to gross or criminal negligence, utter recklessness in disregard for the lives and safety of the road users.

Furthermore, you should regard the distinction between negligence required to establish a case of causing death by dangerous driving and that for manslaughter. The degree of negligence required to establish a case of causing death by dangerous or reckless driving falls short of that required for conviction for manslaughter. To sustain a charge of manslaughter, the negligence should be such as showed a disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment (Abdullahi v. Sate (1985)). 

iv. Knowledge 

There are certain things in which the law requires that the accused person must have knowledge of a particular existing circumstance. In order to appreciate the enormity of the above mental condition, see the cases of R. v. Onuoha (1983) 3 WACA 88 and R. v. Obiase (1938) 4 WACA 16.

v. Voluntary Conduct An accused person can only be guilty of his voluntary conduct because he cannot be considered to be acting if his physical movement is unconscious or involuntary.
If a person does something in a state of mental blackout or his sleep, then in law, he is not acting and there is no criminal liability because of the involuntariness of his conduct.

In Nigeria, the law is well stated in section 24 of the criminal code and it provides that, except in negligent acts or omission, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an act or for an event which occurs by accident.
It is worthy to state that where the actor is completely unconscious of what he is doing, the physical element is said to be present but the mental element is lacking. 

vi. Strictly Liability Offences
It is not in all offences that the prosecution is required to prove both the physical and the mental elements. There are some offences in which the law requires the prosecution prove the physical element only. Where this happens it is said that those offences are strict liability offences. These therefore, are offences in which the enacting authority dispenses with the proof of the mental element. In strict liability offences a successful proof of the physical element is enough to secure a conviction against the accused person. See the case of R. v. Efana (1972) 8 NLR 81 and search the Criminal Code of bring out strict liability offences.

SELF ASSESSMENT EXERCISE 2

1.  Can we validly say that intention is the only concept of mental element? 
2.  Outline the various concepts relating to the mental element of an offence. 

3.3 The Concurrence of the Physical Element and the Mental

Element
The physical element must co-exist with the mental element and they must simultaneously or contemporaneously complement each other as a matter of law. This is an English Law concept and its import is yet to be firmly considered in Nigeria Law according to the learned authors of Okonkwo and Naish in their book Criminal Law in Nigeria.

It is another way of saying that both the actus reus and the mens rea of an offence correspond.
Exceptions It is important to state that exceptions have been developed through case law to the principle of concurrence of physical and mental elements. The first of such exceptions was developed by Lord Denning in the case of Attorney General for Northern Ireland v. Gallagher (1963) AL 349. In that case, the learned law Lord opined “Where a person whilst sane and sober forms an intention to kill and then prepares for it, knowing it to be a wrong thing to do, he cannot thereafter rely on self induced drunkenness as a defence to a charge of murder”.


In the above Case, the House of Lords allowed the appeal on the basis that if before the killing, the accused had discarded his intention to kill or reserved it and got drunk, it would have been a different matter, but when he forms the intention to kill and without any interruption proceeds to get drunk and carries out his intention, then his drunkenness is no defence, moreso it is dressed up as a defence on insanity. There was no evidence in the present case of any interruption. Lord Denning said that the wickedness of the accused person’s mind before he got drunk is enough to condemn him coupled with the act which he intended to do which he actually did.

The second of such exceptions is that if the actus reus is a continuing one, it is sufficient that the accused has mens rea during its continuance; mens rea gallops up to coincide with the actus reus.
The second exception, as highlighted above, can better be understood based on the decided case of Fagan v. Metropolitan Police Commissioner (1968) 3 ALL ER 442.
The third exception is that when the actus reus is part of a larger transaction, it is said to be sufficient if the accused possessed the intent during the transaction, though not at the moment the actus reus was accomplished.


The Indian case of Khandu (1890) ILR Bombay 196 and the Rhodesian case of Shorty (1950) SR 280 were ordinarily decided on the basis of the principle of the concurrence of the physical and mental elements and the accused persons were not found guilty as charged. But the case of the Thabo Meli v. R. i1954) 1 WLR took a different view. The Privy Council said that the actus reus which caused the death of the deceased by exposure is part of a larger transaction of an earlier intention to kill him with a strike. See similar cases such as State v. Maselina (1968) 2 SA 558 and R. v. Church (1961) 1QB 59.

SELF ASSESSMENT EXERCISE 3

1.  Discuss the principle of the concurrence of the physical and mental elements and the exceptions. 
2. What is the ratio for the court’s decision in the case of Khandu (1890) 1LR Bombay 196? 

4.0 CONCLUSION

Human behaviour in every society is regulated by a minimum code of conduct and in the case of any behaviour outside the scope of this minimum conduct, an offence is presumed to have been committed. In this unit, we demonstrated your understanding of the importance of the application of the general criterion of the elements of offence and how it is used in solving disputes about the unlawfulness of a particular act which complies with the definitional elements of crime and whether certain conducts falls within the scope of a generally recognized ground of justification with reference to crime.

5.0 SUMMARY

From the study conducted in this unit, it is suitable to state that Every offence except strict liability offence has two elements. Those two elements are known as the physical element and the mental element. That there are various ways by which the physical element of an offence can manifest. There are some concepts which underlie the mental element. The principle of concurrence emphasizes the fact of simultaneous occurrence of the physical and mental element. The principle of concurrence is not sacrosanct because of exceptions which have been developed over the years through case law.

6.0 TUTOR-MARKED ASSIGNMENT

“A” intending to kill “B” strikes him with a sharp knife and thinking that “B” is dead whereas he has not died, throws his body into Qua Iboe River and “B” is now dead due to exposure, what is the position of the law relating to the principle of concurrence