Difference between revisions of "Zimbabwe Criminal Code"

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The fact that a person has a complete or partial defence in relation to conduct which is an essential element of a particular crime shall not prevent that person from being charged with and convicted of any other crime of which that conduct is not an essential element.
 
The fact that a person has a complete or partial defence in relation to conduct which is an essential element of a particular crime shall not prevent that person from being charged with and convicted of any other crime of which that conduct is not an essential element.
  
Division A: Defence Relating to Voluntary Conduct
+
'''Division A: Defence Relating to Voluntary Conduct'''
PART II
+
 
AUTOMATISM
+
'''PART II'''
216 Involuntary conduct
+
 
 +
'''AUTOMATISM'''
 +
 
 +
'''216 Involuntary conduct'''
 +
 
 
(1)  Subject to subsection (3), the fact that the conduct of a person charged with a crime was not voluntary as required by paragraph (c) of section nine, that is, that the person did or omitted to do anything that is an essential element of the crime without conscious knowledge or control, shall be a complete defence to the charge.
 
(1)  Subject to subsection (3), the fact that the conduct of a person charged with a crime was not voluntary as required by paragraph (c) of section nine, that is, that the person did or omitted to do anything that is an essential element of the crime without conscious knowledge or control, shall be a complete defence to the charge.
 +
 
(2)  Without derogating from the generality of the meaning of "voluntary conduct", the following do not constitute voluntary conduct?
 
(2)  Without derogating from the generality of the meaning of "voluntary conduct", the following do not constitute voluntary conduct?
(a) a reflex movement, spasm or convulsion;
+
 
(b) a bodily movement during unconsciousness or sleep;
+
(a) a reflex movement, spasm or convulsion;
(c) conduct during hypnosis, or which results from hypnotic suggestion;
+
 
(d) conduct over which a person has no control, his or her body or part of his or her body being merely an instrument in the hands of a human or natural agency outside him or her;
+
(b) a bodily movement during unconsciousness or sleep;
 +
 
 +
(c) conduct during hypnosis, or which results from hypnotic suggestion;
 +
 
 +
(d) conduct over which a person has no control, his or her body or part of his or her body being merely an instrument in the hands of a human or natural agency outside him or her;
 
and the expression "involuntary conduct" shall be construed accordingly.
 
and the expression "involuntary conduct" shall be construed accordingly.
 +
 
(3)  If a situation in which a person's conduct is involuntary is brought about through the person's own fault, a court may regard the conduct as voluntary.
 
(3)  If a situation in which a person's conduct is involuntary is brought about through the person's own fault, a court may regard the conduct as voluntary.
 +
 
(4)  If it is found that the conduct of a person upon which he or she is charged with a crime was involuntary, and that such involuntary conduct was the result of a mental disorder or defect as defined in section two hundred and twenty-six, a court shall return a special verdict in terms of section 29 of the Mental Health Act [Chapter 15:12] (Act No. 15 of 1996).
 
(4)  If it is found that the conduct of a person upon which he or she is charged with a crime was involuntary, and that such involuntary conduct was the result of a mental disorder or defect as defined in section two hundred and twenty-six, a court shall return a special verdict in terms of section 29 of the Mental Health Act [Chapter 15:12] (Act No. 15 of 1996).
  
Division B: Defences and Mitigating Factors Relating to the Mental State
+
'''Division B: Defences and Mitigating Factors Relating to the Mental State'''
PART III
+
 
DIMINISHED RESPONSIBILITY
+
'''PART III'''
217 Interpretation in Part III of Chapter XIV
+
 
 +
'''DIMINISHED RESPONSIBILITY'''
 +
 
 +
'''217 Interpretation in Part III of Chapter XIV'''
 +
 
 
In this Part?
 
In this Part?
 +
 
"partial mental disorder or defect" means a mental disorder or defect as defined in section two hundred and twenty-six, the effect of which is not such as to entirely deprive the person suffering from it of the capacity to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation.
 
"partial mental disorder or defect" means a mental disorder or defect as defined in section two hundred and twenty-six, the effect of which is not such as to entirely deprive the person suffering from it of the capacity to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation.
218 Diminished responsibility to operate in mitigation not as defence
+
 
 +
'''218 Diminished responsibility to operate in mitigation not as defence'''
 +
 
 
(1)  If at the time when a crime is committed the capacity of the person committing it?
 
(1)  If at the time when a crime is committed the capacity of the person committing it?
(a) to appreciate the nature of his or her conduct or that his or her conduct was unlawful;  or
+
 
(b) to act in accordance with an appreciation of the kind referred to in paragraph (a);
+
(a) to appreciate the nature of his or her conduct or that his or her conduct was unlawful;  or
 +
 
 +
(b) to act in accordance with an appreciation of the kind referred to in paragraph (a);
 +
 
 
is diminished on account of acute mental or emotional stress, or a partial mental disorder or defect, such diminished responsibility shall not be a defence to the crime, but a court convicting such person shall take it into account when imposing sentence upon him or her for the crime.
 
is diminished on account of acute mental or emotional stress, or a partial mental disorder or defect, such diminished responsibility shall not be a defence to the crime, but a court convicting such person shall take it into account when imposing sentence upon him or her for the crime.
 +
 
(2)  If the acute mental or emotional stress, or partial mental disorder or defect, is brought about through the person's own fault, a court may regard such person's responsibility as not having been diminished.
 
(2)  If the acute mental or emotional stress, or partial mental disorder or defect, is brought about through the person's own fault, a court may regard such person's responsibility as not having been diminished.
 +
 
(3)  Where the capacity of a person to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation is affected by intoxication or provocation, Part IV or IX, as the case may be, shall apply to such person.
 
(3)  Where the capacity of a person to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation is affected by intoxication or provocation, Part IV or IX, as the case may be, shall apply to such person.
 +
 
(4)  For the avoidance of doubt it is declared that where a mental disorder or defect is such as to negate rather than diminish the capacity of the person suffering from it to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation, the person shall be entitled to a complete defence in terms of section two hundred and twenty-seven.
 
(4)  For the avoidance of doubt it is declared that where a mental disorder or defect is such as to negate rather than diminish the capacity of the person suffering from it to appreciate the nature or lawfulness of his or her conduct or to act in accordance with such an appreciation, the person shall be entitled to a complete defence in terms of section two hundred and twenty-seven.
PART IV
+
 
INTOXICATION
+
'''PART IV'''
219 Interpretation in Part IV of Chapter XIV
+
 
 +
'''INTOXICATION'''
 +
 
 +
'''219 Interpretation in Part IV of Chapter XIV'''
 +
 
 
In this Part?
 
In this Part?
 +
 
"intoxication" means intoxication resulting from the ingestion of any form of alcohol or drug;
 
"intoxication" means intoxication resulting from the ingestion of any form of alcohol or drug;
 +
 
"involuntary intoxication" means intoxication that is not voluntarily self-induced;
 
"involuntary intoxication" means intoxication that is not voluntarily self-induced;
 +
 
"voluntary intoxication" means intoxication which is voluntarily self-induced.
 
"voluntary intoxication" means intoxication which is voluntarily self-induced.
220 When involuntary intoxication a complete defence to crimes
+
 
 +
'''220 When involuntary intoxication a complete defence to crimes'''
 +
 
 
(1)  The fact that a person charged with a crime was intoxicated when he or she did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if?
 
(1)  The fact that a person charged with a crime was intoxicated when he or she did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if?
(a) the person was involuntarily intoxicated when he or she did or omitted to do anything that is an essential element of the crime;  and
+
 
(b) in relation to a crime of which intention, knowledge or the realisation of a real risk or possibility is an element, the person was intoxicated to such an extent that he or she lacked the requisite intention, knowledge or realisation.
+
(a) the person was involuntarily intoxicated when he or she did or omitted to do anything that is an essential element of the crime;  and
 +
 
 +
(b) in relation to a crime of which intention, knowledge or the realisation of a real risk or possibility is an element, the person was intoxicated to such an extent that he or she lacked the requisite intention, knowledge or realisation.
 +
 
 
(2)  For the avoidance of doubt it is declared that involuntary intoxication shall be a complete defence to any crime of which negligence is an element.
 
(2)  For the avoidance of doubt it is declared that involuntary intoxication shall be a complete defence to any crime of which negligence is an element.
221 Intoxication no defence to crimes committed with requisite state of mind
+
 
 +
'''221 Intoxication no defence to crimes committed with requisite state of mind'''
 +
 
 
(1)  If a person charged with a crime requiring proof of intention, knowledge or the realisation of a real risk or possibility?
 
(1)  If a person charged with a crime requiring proof of intention, knowledge or the realisation of a real risk or possibility?
(a) was voluntarily or involuntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime;  but
+
 
(b) the effect of the intoxication was not such that he or she lacked the requisite intention, knowledge or realisation;
+
(a) was voluntarily or involuntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime;  but
 +
 
 +
(b) the effect of the intoxication was not such that he or she lacked the requisite intention, knowledge or realisation;
 +
 
 
such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.
 
such intoxication shall not be a defence to the crime, but the court may regard it as mitigatory when assessing the sentence to be imposed.
 +
 
(2)  Where a person is charged with a crime requiring proof of negligence, the fact the person was voluntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime shall not be a defence to any such crime, nor shall the court regard it as mitigatory when assessing the sentence to be imposed.
 
(2)  Where a person is charged with a crime requiring proof of negligence, the fact the person was voluntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime shall not be a defence to any such crime, nor shall the court regard it as mitigatory when assessing the sentence to be imposed.
222 Voluntary intoxication leading to unlawful conduct
+
 
 +
'''222 Voluntary intoxication leading to unlawful conduct'''
 +
 
 
If a person charged with a crime requiring proof of intention, knowledge or the realisation of a real risk or possibility (hereafter in this section called "the crime originally charged") and it is proved that?
 
If a person charged with a crime requiring proof of intention, knowledge or the realisation of a real risk or possibility (hereafter in this section called "the crime originally charged") and it is proved that?
(a) the accused was voluntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime originally charged;  and
+
 
(b) the effect of the intoxication was such that the accused lacked the requisite intention, knowledge or realisation;
+
(a) the accused was voluntarily intoxicated when he or she did or omitted to do anything which is an essential element of the crime originally charged;  and
 +
 
 +
(b) the effect of the intoxication was such that the accused lacked the requisite intention, knowledge or realisation;
 +
 
 
he or she shall be guilty of voluntary intoxication leading to unlawful conduct instead of the crime originally charged and liable to the same punishment as if?
 
he or she shall be guilty of voluntary intoxication leading to unlawful conduct instead of the crime originally charged and liable to the same punishment as if?
(i) he or she had been found guilty of the crime originally charged;  and
+
 
(ii) intoxication had been assessed as a mitigatory circumstance in his or her case.
+
(i) he or she had been found guilty of the crime originally charged;  and
223 Intoxication facilitating the commission of crime
+
 
 +
(ii) intoxication had been assessed as a mitigatory circumstance in his or her case.
 +
 
 +
'''223 Intoxication facilitating the commission of crime'''
 +
 
 
(1)  Notwithstanding any other provision of this Part, if a person?
 
(1)  Notwithstanding any other provision of this Part, if a person?
(a) having formed an intention to commit a crime, becomes voluntarily intoxicated for the purpose of enabling him or her to commit the crime or facilitating his or her commission of the crime;  and
+
 
(b) while so intoxicated, does or omits to do anything which, if done or omitted, as the case may be, with the requisite intention, would be an essential element of a crime;
+
(a) having formed an intention to commit a crime, becomes voluntarily intoxicated for the purpose of enabling him or her to commit the crime or facilitating his or her commission of the crime;  and
 +
 
 +
(b) while so intoxicated, does or omits to do anything which, if done or omitted, as the case may be, with the requisite intention, would be an essential element of a crime;
 +
 
 
the person may be convicted of the crime concerned on the basis of his or her original intention, in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing concerned.
 
the person may be convicted of the crime concerned on the basis of his or her original intention, in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing concerned.
 +
 
(2)  Notwithstanding any other provision of this Code, if a person becomes voluntarily intoxicated realising that there is real risk or possibility that he or she will, in his or her intoxicated condition, engage in any conduct for which he or she may be held criminally liable, he or she may be convicted of the crime constituted by the conduct on the basis of his or her original realisation, in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing concerned.
 
(2)  Notwithstanding any other provision of this Code, if a person becomes voluntarily intoxicated realising that there is real risk or possibility that he or she will, in his or her intoxicated condition, engage in any conduct for which he or she may be held criminally liable, he or she may be convicted of the crime constituted by the conduct on the basis of his or her original realisation, in all respects as if he or she had not been intoxicated when he or she did or omitted to do the thing concerned.
224 Voluntary intoxication leading to provocation
+
 
 +
'''224 Voluntary intoxication leading to provocation'''
 +
 
 
If a person, while in a state of voluntary intoxication, is provoked into any conduct by something which would not have provoked that person had he or she not been intoxicated, the court shall, in accordance with Part IX, regard such provocation as mitigatory when assessing the sentence.
 
If a person, while in a state of voluntary intoxication, is provoked into any conduct by something which would not have provoked that person had he or she not been intoxicated, the court shall, in accordance with Part IX, regard such provocation as mitigatory when assessing the sentence.
225 Intoxication leading to mental disorder
+
 
 +
'''225 Intoxication leading to mental disorder'''
 +
 
 
If a person, as a result of voluntary or involuntary intoxication, suffers from a permanent or long-lasting disorder or disability of mind, the disorder or disability shall be capable of constituting a defence of mental disorder in terms of Part V to a criminal charge arising out of any conduct on the person's part whilst he or she is suffering from the disorder or disability:
 
If a person, as a result of voluntary or involuntary intoxication, suffers from a permanent or long-lasting disorder or disability of mind, the disorder or disability shall be capable of constituting a defence of mental disorder in terms of Part V to a criminal charge arising out of any conduct on the person's part whilst he or she is suffering from the disorder or disability:
 +
 
Provided that a verdict that the person was mentally disordered shall not be returned if the person's mind was only temporarily disordered or disabled by the effects of alcohol or a drug.
 
Provided that a verdict that the person was mentally disordered shall not be returned if the person's mind was only temporarily disordered or disabled by the effects of alcohol or a drug.
PART V
+
 
MENTAL DISORDER
+
'''PART V'''
226 Interpretation in Part V of Chapter XIV
+
 
 +
'''MENTAL DISORDER'''
 +
 
 +
'''226 Interpretation in Part V of Chapter XIV'''
 +
 
 
In this Part?
 
In this Part?
 +
 
"mental disorder or defect" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind.
 
"mental disorder or defect" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind.
227 Mental disorder at time of commission of crime
+
 
 +
'''227 Mental disorder at time of commission of crime'''
 +
 
 
(1)  The fact that a person charged with a crime was suffering from a mental disorder or defect when the person did or omitted to do anything which is an essential element of the crime charged shall be a complete defence to the charge if the mental disorder or defect made him or her?
 
(1)  The fact that a person charged with a crime was suffering from a mental disorder or defect when the person did or omitted to do anything which is an essential element of the crime charged shall be a complete defence to the charge if the mental disorder or defect made him or her?
(a) incapable of appreciating the nature of his or her conduct, or that his or her conduct was unlawful, or both;  or
+
 
(b) incapable, notwithstanding that he or she appreciated the nature of his or her conduct, or that his or her conduct was unlawful, or both, of acting in accordance with such an appreciation.
+
(a) incapable of appreciating the nature of his or her conduct, or that his or her conduct was unlawful, or both;  or
 +
 
 +
(b) incapable, notwithstanding that he or she appreciated the nature of his or her conduct, or that his or her conduct was unlawful, or both, of acting in accordance with such an appreciation.
 +
 
 
(2)  For the purposes of subsection (1), the cause and duration of the mental disorder or defect shall be immaterial.
 
(2)  For the purposes of subsection (1), the cause and duration of the mental disorder or defect shall be immaterial.
 +
 
(3)  Subsection (1) shall not apply to a mental disorder or defect which is neither permanent nor long-lasting, suffered by a person as a result of voluntary intoxication as defined in section two hundred and nineteen.
 
(3)  Subsection (1) shall not apply to a mental disorder or defect which is neither permanent nor long-lasting, suffered by a person as a result of voluntary intoxication as defined in section two hundred and nineteen.
228 Mental disorder at time of trial
+
 
 +
'''228 Mental disorder at time of trial'''
 +
 
 
The fact that a person is mentally disordered or defective at the time of his or her trial on a criminal charge shall not be a defence to the charge unless he or she was also mentally disordered or defective at the time he or she did or omitted to do anything that is an essential element of the crime charged.
 
The fact that a person is mentally disordered or defective at the time of his or her trial on a criminal charge shall not be a defence to the charge unless he or she was also mentally disordered or defective at the time he or she did or omitted to do anything that is an essential element of the crime charged.
229 Application of Cap. 15:12
+
 
 +
'''229 Application of Cap. 15:12'''
 +
 
 
Nothing in this Part shall affect the operation of the Mental Health Act [Chapter 15:12] (Act No. 15 of 1996) in relation to?
 
Nothing in this Part shall affect the operation of the Mental Health Act [Chapter 15:12] (Act No. 15 of 1996) in relation to?
(a) the procedure to be followed when persons being tried are found to be mentally disordered or defective or any verdict to be returned at any such trial;  or
+
 
(b) the detention, examination or treatment of persons found to be mentally disordered or defective.
+
(a) the procedure to be followed when persons being tried are found to be mentally disordered or defective or any verdict to be returned at any such trial;  or
PART VI
+
 
MINORITY
+
(b) the detention, examination or treatment of persons found to be mentally disordered or defective.
230 When child between seven and fourteen years may be held criminally liable
+
 
 +
'''PART VI'''
 +
 
 +
'''MINORITY'''
 +
 
 +
'''230 When child between seven and fourteen years may be held criminally liable'''
 +
 
 
(1)  The presumption referred to in section seven as to the criminal incapacity of a child between the age of seven and below the age of fourteen years may be rebutted if, at the time of the commission of the crime for which such child is charged, the child was sufficiently mature?
 
(1)  The presumption referred to in section seven as to the criminal incapacity of a child between the age of seven and below the age of fourteen years may be rebutted if, at the time of the commission of the crime for which such child is charged, the child was sufficiently mature?
(a) to understand that his or her conduct was unlawful or morally wrong;  and
+
 
(b) to be capable of conforming with the requirements of the law.
+
(a) to understand that his or her conduct was unlawful or morally wrong;  and
 +
 
 +
(b) to be capable of conforming with the requirements of the law.
 +
 
 
(2)  Subsection (1) shall apply to all crimes, whether or not any form of intention, knowledge, realisation or negligence is required for their commission.
 
(2)  Subsection (1) shall apply to all crimes, whether or not any form of intention, knowledge, realisation or negligence is required for their commission.
 +
 
(3)  In deciding, for the purposes of subsection (1), whether or not a child was sufficiently mature to have the understanding and capacity referred to in that subsection, a court shall take into account the following factors, in addition to any others that are relevant in the particular case?
 
(3)  In deciding, for the purposes of subsection (1), whether or not a child was sufficiently mature to have the understanding and capacity referred to in that subsection, a court shall take into account the following factors, in addition to any others that are relevant in the particular case?
(a) the nature of the crime with which the child is charged;  and
+
 
(b) the child's general maturity and family background;  and
+
(a) the nature of the crime with which the child is charged;  and
(c) the child's knowledge, education and experience;  and
+
 
(d) the child's behaviour before, during and after the conduct which forms the subject of the charge.
+
(b) the child's general maturity and family background;  and
 +
 
 +
(c) the child's knowledge, education and experience;  and
 +
 
 +
(d) the child's behaviour before, during and after the conduct which forms the subject of the charge.
 +
 
 
(4)  Where a child who is of or over the age of seven years but under the age of fourteen years does or omits to do anything in the presence of an older person whom in all the circumstances the child would be expected to obey, it shall be presumed, in any criminal proceedings arising out of that conduct, that the child was acting under compulsion from that older person, unless the contrary is proved.
 
(4)  Where a child who is of or over the age of seven years but under the age of fourteen years does or omits to do anything in the presence of an older person whom in all the circumstances the child would be expected to obey, it shall be presumed, in any criminal proceedings arising out of that conduct, that the child was acting under compulsion from that older person, unless the contrary is proved.
 +
 
(5)  For the purposes of subsection (4), a child shall be deemed to be in the presence of an older person if the older person is so placed as to be able to control the child's conduct.
 
(5)  For the purposes of subsection (4), a child shall be deemed to be in the presence of an older person if the older person is so placed as to be able to control the child's conduct.
 
231 Attorney-General to authorise prosecutions of children under fourteen years
 
231 Attorney-General to authorise prosecutions of children under fourteen years
 +
 
No proceedings in respect of any crime shall be instituted or continued against any person who is under the age of fourteen years, other than proceedings for the purposes of remand, without the authority of the Attorney-General.
 
No proceedings in respect of any crime shall be instituted or continued against any person who is under the age of fourteen years, other than proceedings for the purposes of remand, without the authority of the Attorney-General.
PART VII
+
 
MISTAKE OR IGNORANCE OF FACT
+
'''PART VII'''
232 Interpretation in Part VII of Chapter XIV
+
 
 +
'''MISTAKE OR IGNORANCE OF FACT'''
 +
 
 +
'''232 Interpretation in Part VII of Chapter XIV'''
 +
 
 
In this Part?
 
In this Part?
 +
 
"essential fact", in relation to a crime, means any fact or factual circumstance which relates to an essential element of the crime;
 
"essential fact", in relation to a crime, means any fact or factual circumstance which relates to an essential element of the crime;
 +
 
"ignorance", in relation to a fact, means complete lack of knowledge that the fact exists;
 
"ignorance", in relation to a fact, means complete lack of knowledge that the fact exists;
 +
 
"mistake", in relation to a fact, means an erroneous impression concerning that fact.
 
"mistake", in relation to a fact, means an erroneous impression concerning that fact.
233 When mistake or ignorance of fact a defence to subjective crimes
+
 
 +
'''233 When mistake or ignorance of fact a defence to subjective crimes'''
 +
 
 
(1)  If a person does or omits to do anything which would be an essential element of a crime if done or omitted, as the case may be, with any form of intention, knowledge or realisation, the person shall have a complete defence to a charge of committing that crime if, when he or she did or omitted to do the thing, he or she was genuinely mistaken or ignorant as to an essential fact of the crime concerned.
 
(1)  If a person does or omits to do anything which would be an essential element of a crime if done or omitted, as the case may be, with any form of intention, knowledge or realisation, the person shall have a complete defence to a charge of committing that crime if, when he or she did or omitted to do the thing, he or she was genuinely mistaken or ignorant as to an essential fact of the crime concerned.
 +
 
(2)  Subject to this Code and any other enactment, mistake or ignorance of an essential fact may be a defence to a crime referred to in subsection (1) even if it is not reasonable:
 
(2)  Subject to this Code and any other enactment, mistake or ignorance of an essential fact may be a defence to a crime referred to in subsection (1) even if it is not reasonable:
 
Provided that the reasonableness or unreasonableness of any mistake or ignorance may be taken into account in determining whether or not it is genuine.
 
Provided that the reasonableness or unreasonableness of any mistake or ignorance may be taken into account in determining whether or not it is genuine.
234 When mistake or ignorance of fact a defence to objective crimes
+
 
 +
'''234 When mistake or ignorance of fact a defence to objective crimes'''
 +
 
 
If a person does or omits to do anything which would be an essential element of a crime if done or omitted, as the case may be, negligently, the person shall have a complete defence to a charge of committing that crime if?
 
If a person does or omits to do anything which would be an essential element of a crime if done or omitted, as the case may be, negligently, the person shall have a complete defence to a charge of committing that crime if?
(a) when he or she did or omitted to do the thing, he or she was genuinely mistaken or ignorant as to an essential fact of the crime concerned;  and
+
 
(b) the person's mistake or ignorance of that essential fact was reasonable in all the circumstances.
+
(a) when he or she did or omitted to do the thing, he or she was genuinely mistaken or ignorant as to an essential fact of the crime concerned;  and
PART VIII
+
 
MISTAKE OR IGNORANCE OF LAW
+
(b) the person's mistake or ignorance of that essential fact was reasonable in all the circumstances.
235 Interpretation in Part VIII of Chapter XIV
+
 
 +
'''PART VIII'''
 +
 
 +
'''MISTAKE OR IGNORANCE OF LAW'''
 +
 
 +
'''235 Interpretation in Part VIII of Chapter XIV'''
 +
 
 
In this Part?
 
In this Part?
 +
 
"ignorance", in relation to a law, means complete lack of knowledge that the law exists;
 
"ignorance", in relation to a law, means complete lack of knowledge that the law exists;
 +
 
"law" means this Code or any other enactment;
 
"law" means this Code or any other enactment;
 +
 
"mistake", in relation to a law, means an erroneous impression as to the nature or contents of that law.
 
"mistake", in relation to a law, means an erroneous impression as to the nature or contents of that law.
236 When mistake or ignorance of law a defence
+
 
 +
'''236 When mistake or ignorance of law a defence'''
 +
 
 
(1)  Subject to this Part, if a person?
 
(1)  Subject to this Part, if a person?
(a) does or omits to do anything which is an essential element of a crime in terms of any law;  and
+
 
(b) when he or she did or omitted to do the thing, he or she did not know that his or her conduct was unlawful because he or she was genuinely mistaken or ignorant as to the relevant provisions of the law;
+
(a) does or omits to do anything which is an essential element of a crime in terms of any law;  and
 +
 
 +
(b) when he or she did or omitted to do the thing, he or she did not know that his or her conduct was unlawful because he or she was genuinely mistaken or ignorant as to the relevant provisions of the law;
 +
 
 
the person shall not have a complete defence to a charge of committing that crime unless the person's mistake or ignorance as to the relevant provisions of the law was directly brought about by advice given to him or her by an administrative or judicial officer whom he or she had reason to believe was charged with the administration of the law concerned and was familiar with its contents.
 
the person shall not have a complete defence to a charge of committing that crime unless the person's mistake or ignorance as to the relevant provisions of the law was directly brought about by advice given to him or her by an administrative or judicial officer whom he or she had reason to believe was charged with the administration of the law concerned and was familiar with its contents.
 +
 
(2)  In any circumstances other than those affording a complete defence under subsection (1), genuine mistake or ignorance as to the relevant provisions of a law on the part of a person charged with a crime shall merely be a factor to be taken into account in the assessment of sentence.
 
(2)  In any circumstances other than those affording a complete defence under subsection (1), genuine mistake or ignorance as to the relevant provisions of a law on the part of a person charged with a crime shall merely be a factor to be taken into account in the assessment of sentence.
237 Claims of right and mistakes of mixed law and fact
+
 
 +
'''237 Claims of right and mistakes of mixed law and fact'''
 +
 
 
If in any criminal case a person charged with any crime against property raises a defence of claim of right, namely that the person believed he or she had a right to do or omit to do any thing, the court shall determine whether or not the belief arose from mistake or ignorance of fact or law and, if the court decides that the belief arose?
 
If in any criminal case a person charged with any crime against property raises a defence of claim of right, namely that the person believed he or she had a right to do or omit to do any thing, the court shall determine whether or not the belief arose from mistake or ignorance of fact or law and, if the court decides that the belief arose?
(a) solely from mistake or ignorance of law, the court shall regard the defence as one of mistake or ignorance of law in terms of this Part;  or
+
 
(b) solely from mistake or ignorance of fact, the court shall regard the defence as one of mistake or ignorance of fact in terms of Part VII;  or
+
(a) solely from mistake or ignorance of law, the court shall regard the defence as one of mistake or ignorance of law in terms of this Part;  or
(c) partly from mistake or ignorance of law and partly from mistake or ignorance of fact, the court shall regard the defence as one of mistake or ignorance of law in terms of this Part.
+
 
PART IX
+
(b) solely from mistake or ignorance of fact, the court shall regard the defence as one of mistake or ignorance of fact in terms of Part VII;  or
PROVOCATION
+
 
238 Provocation in relation to crimes other than murder
+
(c) partly from mistake or ignorance of law and partly from mistake or ignorance of fact, the court shall regard the defence as one of mistake or ignorance of law in terms of this Part.
 +
 
 +
'''PART IX'''
 +
 
 +
'''PROVOCATION'''
 +
 
 +
'''238 Provocation in relation to crimes other than murder'''
 +
 
 
Except as provided in section two hundred and thirty-nine and subject to any other enactment, provocation shall not be a defence to a crime but the court may regard it as mitigatory when assessing the sentence to be imposed for the crime.
 
Except as provided in section two hundred and thirty-nine and subject to any other enactment, provocation shall not be a defence to a crime but the court may regard it as mitigatory when assessing the sentence to be imposed for the crime.
239 When provocation a partial defence to murder
+
 
 +
'''239 When provocation a partial defence to murder'''
 +
 
 
(1)  If, after being provoked, a person does or omits to do anything which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation?
 
(1)  If, after being provoked, a person does or omits to do anything which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation?
(a) he or she does not have the intention or realisation referred to in section forty-seven;  or
+
 
(b) he or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.
+
(a) he or she does not have the intention or realisation referred to in section forty-seven;  or
 +
 
 +
(b) he or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.
 +
 
 
(2)  For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that?
 
(2)  For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that?
(a) he or she did have the intention or realisation referred to in section forty-seven;  or
+
 
(b) the provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;
+
(a) he or she did have the intention or realisation referred to in section forty-seven;  or
 +
 
 +
(b) the provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;
 
the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.
 
the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.
  
Division C: Defences and Mitigating Factors Relating to Unlawfulness
+
'''Division C: Defences and Mitigating Factors Relating to Unlawfulness'''
PART X
+
 
AUTHORITY
+
'''PART X'''
240 Public authority
+
 
 +
'''AUTHORITY'''
 +
 
 +
'''240 Public authority'''
 +
 
 
(1)  Subject to this section, the fact that a person is authorised or permitted by an enactment to do or omit to do any thing shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element.
 
(1)  Subject to this section, the fact that a person is authorised or permitted by an enactment to do or omit to do any thing shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element.
 +
 
(2)  Subject to this section, the fact that a person did or omitted to do any thing as a duly authorised official, employee or agent of the State and in the proper exercise of that authority shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element.
 
(2)  Subject to this section, the fact that a person did or omitted to do any thing as a duly authorised official, employee or agent of the State and in the proper exercise of that authority shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element.
 +
 
(3)  A person shall not be entitled to rely on the defence referred to in?
 
(3)  A person shall not be entitled to rely on the defence referred to in?
(a) subsection (1), unless his or her conduct was in all respects authorised or permitted by the enactment concerned;
+
 
(b) subsection (2), unless it was lawful for the State to give the authority concerned.
+
(a) subsection (1), unless his or her conduct was in all respects authorised or permitted by the enactment concerned;
241 Discipline of children
+
 
 +
(b) subsection (2), unless it was lawful for the State to give the authority concerned.
 +
 
 +
'''241 Discipline of children'''
 +
 
 
(1)  In this section?
 
(1)  In this section?
 +
 
"guardian" means a person, other than a school teacher in his or her capacity as such, who has the lawful custody, charge or care of a minor person, whether permanently or temporarily;
 
"guardian" means a person, other than a school teacher in his or her capacity as such, who has the lawful custody, charge or care of a minor person, whether permanently or temporarily;
 +
 
"minor", in relation to a person, means that the person is under the age of eighteen years;
 
"minor", in relation to a person, means that the person is under the age of eighteen years;
 +
 
"school" includes an educational institution of any kind;
 
"school" includes an educational institution of any kind;
 +
 
"school-teacher" means the head or deputy head of a school.
 
"school-teacher" means the head or deputy head of a school.
 +
 
(2)  Subject to this section?
 
(2)  Subject to this section?
(a) a parent or guardian shall have authority to administer moderate corporal punishment for disciplinary purposes upon his or her minor child or ward;
+
 
(b) a school-teacher shall have authority to administer moderate corporal punishment for disciplinary purposes upon any minor male pupil or student;
+
(a) a parent or guardian shall have authority to administer moderate corporal punishment for disciplinary purposes upon his or her minor child or ward;
 +
 
 +
(b) a school-teacher shall have authority to administer moderate corporal punishment for disciplinary purposes upon any minor male pupil or student;
 +
 
 
and, where moderate corporal punishment is administered upon a minor person by a parent, guardian or school-teacher within the scope of that authority, the authority shall be a complete defence to a criminal charge alleging the commission of a crime of which the administration of the punishment is an essential element.
 
and, where moderate corporal punishment is administered upon a minor person by a parent, guardian or school-teacher within the scope of that authority, the authority shall be a complete defence to a criminal charge alleging the commission of a crime of which the administration of the punishment is an essential element.
 +
 
(3)  Subject to this section, any person who administers moderate corporal punishment upon a minor person under authority delegated to him or her by a parent, guardian or school-teacher shall have a complete defence to a criminal charge alleging the commission of a crime of which the administration of such punishment is an essential element, if it would have been lawful for the parent, guardian or school-teacher to have administered such punishment himself or herself.
 
(3)  Subject to this section, any person who administers moderate corporal punishment upon a minor person under authority delegated to him or her by a parent, guardian or school-teacher shall have a complete defence to a criminal charge alleging the commission of a crime of which the administration of such punishment is an essential element, if it would have been lawful for the parent, guardian or school-teacher to have administered such punishment himself or herself.
 +
 
(4)  No school-teacher or person acting under authority delegated to him or her by a school-teacher shall administer corporal punishment upon a female pupil or student.
 
(4)  No school-teacher or person acting under authority delegated to him or her by a school-teacher shall administer corporal punishment upon a female pupil or student.
 +
 
(5)  When administering corporal punishment upon a minor male pupil or student at his or her school, a school-teacher shall comply with any lawful rules, regulations or administrative instructions which apply to the administration of corporal punishment at his or her school.
 
(5)  When administering corporal punishment upon a minor male pupil or student at his or her school, a school-teacher shall comply with any lawful rules, regulations or administrative instructions which apply to the administration of corporal punishment at his or her school.
 +
 
(6)  In deciding whether or not any corporal punishment administered upon a minor person is moderate for the purposes of this section, a court shall take into account the following factors, in addition to any others that are relevant in the particular case?
 
(6)  In deciding whether or not any corporal punishment administered upon a minor person is moderate for the purposes of this section, a court shall take into account the following factors, in addition to any others that are relevant in the particular case?
(a) the nature of the punishment and any instrument used to administer it;  and
+
 
(b) the degree of force with which the punishment was administered;  and
+
(a) the nature of the punishment and any instrument used to administer it;  and
(c) the reason for the administration of the punishment;  and
+
 
(d) the age, physical condition and sex of the minor person upon whom it was administered;  and
+
(b) the degree of force with which the punishment was administered;  and
(e) any social attitudes towards the discipline of children which are prevalent in the community among whom the minor person was living when the punishment was administered upon the minor person.
+
 
242 Purported corporal punishment of spouses unlawful
+
(c) the reason for the administration of the punishment;  and
 +
 
 +
(d) the age, physical condition and sex of the minor person upon whom it was administered;  and
 +
 
 +
(e) any social attitudes towards the discipline of children which are prevalent in the community among whom the minor person was living when the punishment was administered upon the minor person.
 +
 
 +
'''242 Purported corporal punishment of spouses unlawful'''
 +
 
 
It shall not be lawful for a person to purport to administer corporal punishment upon his or her spouse, whatever the nature of their marriage and wherever their marriage may have been contracted.
 
It shall not be lawful for a person to purport to administer corporal punishment upon his or her spouse, whatever the nature of their marriage and wherever their marriage may have been contracted.
PART XI
+
 
COMPULSION
+
'''PART XI'''
243 Requirements for compulsion to be complete defence
+
 
 +
'''COMPULSION'''
 +
 
 +
'''243 Requirements for compulsion to be complete defence'''
 +
 
 
(1)  Subject to this Part, the fact that a person accused of a crime was subjected to compulsion when the person did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if?
 
(1)  Subject to this Part, the fact that a person accused of a crime was subjected to compulsion when the person did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if?
 
(a) the compulsion consisted of a threat?
 
(a) the compulsion consisted of a threat?

Revision as of 14:10, 3 May 2010