NONSO ROBERT ATTOH MISTAKE OF FACT (25) THREE IMPORTANT ELEMENTS OF THE DEFENSE

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1 NONSO ROBERT ATTOH MISTAKE OF FACT (25) MEANING: A mistake of fact is just a mistake pertaining to some fact in the words of section 25 a mistaken belief in the existence of a state of things A mistake of fact is only a defense if it negates a material element of the crime. According to the court A mistake of fact in the sense of a belief in circumstances which, if true, would make the Defendant's conduct innocent, is a "defense" to all criminal charges. - ADIELE V STATE The position of the law is that a genuine mistake of fact robs the accused person of the necessary mens rea which the law requires for the crime with which he is charged - ASINYA V THE STATE (2016) LPELR-40545(CA) THREE IMPORTANT ELEMENTS OF THE DEFENSE

2 1. Must be a mistake of fact (existence of a state of things) not a mistake of law 2. It must be reasonable as well as honest 3. The accused remains liable on the facts as he believed them to be A mistake of law is where an accused is mistaken or ignorant about the law. for example, a South African who comes into Nigeria and does not know that same sex marriage is a crime or that homosexuality is a crime because there is no such law in S. Africa - where the accused has the relevant actus reus and mens rea for the crime, he is guilty even though he did not know that the actus reus was forbidden by the criminal law. Lightfoot (1993) 97 Cr App R 24:... Knowledge of the law... is irrelevant... The fact that a man does not know what is criminal and what is not... cannot save him from conviction if what he does, coupled with the state of his mind, satisfies all the elements of the crime of which he is accused. 1. EXISTENCE OF A STATE OF THINGS NOT A MISTAKE OF LAW (ignorance of the law is no excuse - SECTION 22 CCA) Ogbu v. R (1959) N.R.N.L.R the correctness of the acquittal of an accused that said that he did not know that paying a bribe to be appointed village headman and tax collector was illegal was doubted by the appellate court R v. Bailey (1800) R&R 1; 168 E.R The accused was convicted of a crime which Parliament had created while he was on the high seas, and there was no way of finding out that a law had been enacted. Note: the difficulty often encountered in determining what is a mistake of fact and what is a mistake of law in bigamy cases as reflected in the English cases of Thomas v. R (1937) 59 C.L.R. 279 AT section 57), R v. Wheat & Stocks [1921] 2 K.B 119, R v. King [1964] 1 Q.B 285 and R v. Gould [1968] 2 Q.B 65 R v. Wheat & Stocks [1921] 2 K.B It is no defense to a charge of bigamy that the accused honestly but mistakenly believed on reasonable grounds that his first marriage had been terminated by divorce- Was overruled in R v Gould R v. Gould [1968] 2 Q.B 65- The facts of Gould were that the appellant was married in 1959 and there were three children of the marriage. Several years later a divorce suit was entered and the appellant's solicitors gave notice to defend. However, before the case was heard the appellant was sentenced to twelve months' imprisonment and was released in March He returned to his wife but on being told by her the following month that their marriage was finished he left her and, in the following November, he married again. When interviewed by the police the appellant stated that he had agreed to remarry because he thought that he was divorced. In fact, at the date of his second marriage, his

3 first marriage had not been dissolved. The Appeal court held that once the offence is not an absolute one, an honest belief on reasonable grounds in facts which, if true, would make the second marriage innocent should be a defense. In Thomas v R. the accused mistakenly believed that his first wife's previous marriage had not been dissolved by a decree of the court and that therefore his marriage to her was void, and that he was free to remarry. On the basis of this mistake, the accused entered into a second marriage. By a majority of three to two the High Court of Australia quashed the conviction, although all five judges regarded Wheat and Stocks as indistinguishable: i.e., in both cases there was a mistake as to element (a) of the offence of Bigamy -"that the accused is married" The mistake must not be as to the consequences of an act but must be strictly related to belief in the existence of a state of things R v Gould Qd.R. 283 (C.C.A) EXCEPTIONS WHERE MISTAKE OF LAW MAY BE A GOOD DEFENCE Bona fide claim of right based on mistake of law - for example where due to legislation unknown to the accused ownership of property had passed from him to another person and he acts on the property as if it were still his own for example by damaging the property Insanity and Immaturity sections 28 and 30 CC - because such persons lack the capacity to understand the law Liability for erroneous execution of process - CC section Must be an honest mistake as well as a reasonable mistake Mistake must be both honest and reasonable the test for honesty is subjective the honesty of the belief may be negatived by the peculiar knowledge available to the accused - The State v. Squadron Leader S.I. Olatunji - the accused knew the money was meant for payment of short salaries by virtue of his position as paymaster. The test of honest belief which should shore up a defense of mistake rests a priori on whether the accused honestly and in good faith made a mistake in the nature of the situational premise prevailing as at the time, and that shall be determined and related to the circumstances as might reasonably to be expected to affect his mind to induce belief or otherwise of the defense of mistake - AIGHUOKIAN vs. THE STATE per Acholonu JSC the test for reasonableness is objective

4 the reasonableness of the belief will only go to the issue whether the belief was genuinely held. - Per OGUNWUMIJU, J.C.A. in Asinya v the State A mistake will be held not to be reasonable if the accused was reckless in his believing did not find that a defense of mistake was made out since it is manifest that the appellant recklessly disregarded the assurances of his own father, his wife and his sister that the child was not dead at the time. On the facts as found by the Judge, the belief of the appellant was neither honest nor reasonable and there was no evidence before the Court to warrant a contrary view. - AKINSULIRE BASOYI v THE ATTORNEY- GENERAL, WESTERN NIGERIA (1966) NMLR 287. For a belief to be reasonable it must not be an insult to intelligence - must be credible and capable of belief - not a fairy tale, not a fib - not a tell it to the marines kind of tale Osaremwindan Aiguokhian v. The State (2004) LPELR-269(SC) - a fairy tale - fib - honestly - good faith - without fault or negligence - no discerning individual of average intelligence will believe it. Where the defense of mistake of fact is erected on a pedestal of absolute falsehood, the kind which the late sage, ACHOLONU, JSC (of Blessed Memories) in the case of AIGHUOKIAN vs. THE STATE(Supra) had described as capable of insulting the intelligence and sensibilities of the hearer, the way the Appellant had done in this case, then the defense will fail - ASINYA V STATE - FREDERICK O. OHO, J.C.A, Asinya v state per TA GEORGE MBABA, J.C.A. - "I do not think the defense of honest mistake, under Section 25 of the Criminal Code, can avail the Appellant, given the whole circumstances of this case and the evidence, which revealed the deliberate lies and manipulation of facts against the dead by the Appellant. - Where the act of 1st accused was very wicked and callous it cannot, in the least, be said to be an act done under an honest and mistaken belief the controversial issue as to the test of reasonableness as identified by Okonkwo and Naish is "what is the standard of the reasonable man to be applied in the objective test; is it the standard of the educated man who does not believe superstitiously or is it the standard of an average citizen in the accused's shoe? the controversy stems from the decision of the West African Court of Appeal in the witchcraft cases of R v. Gadam (1954) 14 W.A.C.A 442 and R v. Ifereonwe (unreported)- adopting the standard of the educated man irrespective of what generally obtains in the society Okonkwo advocates the standard of an average citizen and thus prefers the dictum of the court in Lamba Kumbin v Bauchi Native Authority 1963 N.N.L.R 49 AT 51, which adopted the standard of the average citizen as the reasonable man. It is worthy of note that the test of reasonableness is not a universal test and some jurisdictions do not even have that test. It has been criticized as being absurd to demand for both a subjective as well as an objective test for the validity of a mistake of fact. However, if we are to adopt the reasonable man test it must be that of the man on the Clapham omnibus whose qualities are not exactly assimilable to that of a mere average citizen. But that is a discussion for another forum. 3. LIABILITY TO NO GREATER EXTENT THAN IF MISTAKE WERE TRUE. -This has been interpreted mostly in relation to the question of the criminal liability of an accused for killing a thief or suspected thief.

5 The Decisions have all gravitated towards two different conclusions as set down in R v Aniago (1943) 9 W.A.C.A 62 and R v Aliechem (1956) 1 F.S.C 64 as to when the killing will amount to murder and when it will amount to manslaughter. R v Aniogo - The prosecution conceded to reduction of the sentence to manslaughter and there was also the evidence that the accused there thought the deceased was possibly armed when he shot him. Therefore, the verdict of manslaughter was not inconsistent with other decisions of the court. R v Aliechem - dealt the blow with the intention to kill or cause grievous harm and so the verdict was murder AKPOBASA V. THE STATE NSCC In our view Rex v Peter Aniogo is distinguishable from the present case on the facts and is certainly not authority for the general proposition that the killing of a person suspected of being a thief must invariably be manslaughter and not murder. The Court of Appeal in that case did not purport to lay down any such general proposition. Each case must therefore be decided on its own facts. In the present case, while it is true that the appellant believed the deceased to be a thief, it is equally true on his own evidence that he deliberately struck him without giving him a chance to answer the challenge...it is clear, however that the blow must have been delivered with great force. A murderous weapon, namely a matchet, was used and the deceased was cut in a vital part of his body. In our view the learned Judge was quite justified in concluding that the appellant Intended to Inflict at least grievous harm on the deceased and not merely to brand him. That being so the appellant was, in our judgment, rightly convicted of murder....the accused shot an unarmed man because he heard a cry of thief and the man was running away from the spot where the cry came from. There was no evidence, that the learned trial Judge accepted, that the deceased was armed or that he threatened the accused and he was leaving the scene when the accused shot him. In those circumstances we think he was rightly convicted of murder and we accordingly dismiss this appeal UDO UDO OBOT v. QUEEN 14 (WACA) 352; - the deceased broke into the house of the accused during the night and stole some meat. The accused chased him and cut him with a matchet and he died. His conviction for murder was upheld because the thief was unarmed Verity C.J. in that case held as follows: "A person who in the night finds another in the act of committing a felony is entitled to used such force as may be necessary to apprehend the felon, even to the extent of killing him in order to prevent his escape but it would be an unhappy state of affairs if when he has caught up with the escaping felon who is unarmed, he should be at liberty to hack him to death with a lethal weapon such as a machete. This goes far beyond the force which would be justified by the circumstances and is in our view clearly murder." R v. Jegede [1955] W.N.L.R. 33- there was no evidence of deliberate killing therefore the verdict was manslaughter At any rate, he was out that night, presumably on unlawful business and the accused persons who are all night guards stalked him and killed him. The conduct of the accused persons after shooting the deceased was rather barbaric. He was given so many matchet wounds on his body and then buried in a

6 swamp. What, however, I have to consider is whether the killing was justified; if it was not, whether it was murder or manslaughter, in the circumstances. I am of the view that the killing is in no way justified since there is no evidence that at the time, the deceased was found burgling a house or committing an atrocious crime; nor is the intent to commit such forcible and atrocious crime clearly manifested from evidence. The deceased, although he may not be a decent member of society, had a right, like everybody else, to live. Unless it can be shown that he was out to commit atrocious crime or use lethal weapons, it was not right to kill him merely because he was a reputed thief... I hold that evidence of deliberate killing is not clearly established against the accused persons and the circumstances are so complicated that it is difficult to infer it as such in the case of all the accused persons. Having regard to all these circumstances I have to discharge each of the accused persons on a charge of murder but each is found guilty of a charge of manslaughter. Ibikunle v State (2007) 2 NWLR (Pt.1019) Even if the deceased were to be a thief or a person of dubious character, which the evidence on record does not disclose him as one, the provisions of the Constitution and Criminal Procedure Law (ibid) quoted above did not license the Appellant to be the complainant, investigator, judge as well as executioner, all rolled into one. Adiele v State CA/PH/326A/2007 (CON) the evidence is clear that there was no armed resistance by the victims", and so they should not have been summarily executed. Killing an unarmed thief is murder not manslaughter. 4. EXCLUSION BY DEFINITION the definition of the offense may exclude the defense of mistake but on the authority of R v Gould [1960] d R See also R v Jegede for that inference. 5. BURDEN OF PROOF - It is for the accused to raise this defense, and accordingly the accused must satisfy an evidential burden, on the balance of probabilities. If the accused meets that burden on the balance of probabilities, the prosecution then bears a burden beyond reasonable doubt to establish that the belief was not held, or that it was not a reasonable belief to hold in the circumstances. R.N.A