Applicability of a principle of malice transferred in Tanzania by Johnson Yesaya

 Appropriateness of the offence they were charged with

As per the situation in commission of the said offence in the given scenario, the proper offence to charge accused persons was murder as they were charged. Murder is a penal offence provided under section 196 of The Penal Code[1]. I argue with charges against them because it was appropriate to charge them with offence of murder considering the elements of their acts which constituted offence of murder.

To properly establish criminal offence, these two elements are important[2] (“mens-rea” and “actus reus”),a complete criminal offence need both elements to be proved, but in some cases an offender can be charged and get convicted on one element[3].

Example 1, A and B agreed to kill C, on preparation they got arrested before implementing their goal, they were charged with conspiracy to commit offence. The basis of charges in this example is the intention or evil mind to commit offence which is one of the elements of criminal offence, offenders in this crime had evil mind or intention to commit crime.

Example 2, D was driving a car, unexpectedly, a motorcycle well known boda boda from unknown direction invaded car way, D failed to control a car and he knocked down a person who was in charge of boda boda and caused his death. In this example, you can charge “D” with reckless driving caused death, but since the offence committed out of his intention and contributed by acts of victim, D can be set free.

So, to prove criminal offence, these two elements are too important. Missing of one element of an offence may lessen the punishment and in some cases it may exonerate an accused person[4].

Causing death under Penal Code[5]. Section 196 and 203 of Penal Code[6]gives test of an offence of murder. As per section 196 “Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission commits an offence of murder”, section 203 of the same Act extend meaning of causing death, which cover all other acts or omission of a person which may cause death of another person.

Connecting the above facts and acts or omission by Mr Chiko, now we discover that, Mr Chiko had an intention to commit murder and he was successful even if he killed another person who was not his target[7]. An issue of establishing the intention and evil act is enough to prosecute and convict offender.

In Droste v. Republic[8], Appellant had planned to kill his wife but in carrying out his plan killed his two young children instead. The trial judge charged the jury that appellant could be convicted of the first degree murder of his children if the jury were satisfied beyond a reasonable doubt that appellant had planned to kill his wife.

It was later held that, “Planning and deliberation with the relation to the killing of a specific person makes the offence first degree murder when in the course of carrying out the plan the accused in fact kills someone else.

Possible defence(s) available for accused persons

There was no intention to commit offence, event happened by accident, section 10 of Penal Code[9]. Salome had no intention to commit an offence because event happened without her consent. Salome cooked meat using poisoned water, she did not poisoned water and she did not even knew that water was poisoned, she had no evil mind and she participated in causing death unknowingly. In case she successful proves this defence, it can exonerate her from charges.

There is no defence which suit Mr Chiko, all elements which constitutes offence of murder established by acts or omission of accused and it is impossible for him to escape charges of murder.

To what extent does the principle of malice transferred is applicable in Tanzania

Transferred intent (or transferred mens rea, or transferred malice, in English law) is a legal doctrine or principle that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible[10]. To be held legally responsible under the law, usually the court must demonstrate that the person has criminal intent, that is, that the person knew another would be harmed by his or her actions and wanted this harm to occur. If a murderer intends to kill John, but accidentally kills George instead, the intent is transferred from John to George, and the killer is held to have had criminal intent[11].

Section 200 (a) and (b) of Penal code[12] provides on transferred malice. An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not, knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, as provided by section 200 (a) and (b) evidence the applicability of a principle of malice transferred in Tanzania, and in case a person found in commission of the offence which fall within scope of above provisions will be fully liable to an offence regardless to whom he intended to affect by his acts.

REFERENCE

STATUTES

1.      PENAL CODE CAP 16 R:E 2002

2.      CRIMINAL PROCEDURE ACT, CAP 20 R:E 2002

CASE LAWS

1.      Droste v. Republic[1984] 1 SCR 208

ONLINE SOURCE

1.      https://tanzlii.org/tz/judgment/court-appeal-tanzania/2006/75-0

2.      https://www.oykhmancriminaldefence.com/faq/best-defences-to-possession-of-stolen-property

3.      https://www.law.cornell.edu/wex/mens_rea

4.      https://www.law.cornell.edu/wex/mens_rea

5.      ttps://www.crimemuseum.org/crime-library/criminal-law/actus-reus/

6.      https://en.m.wikipedia.org/wiki/Transferred_intent

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[1]Cap 16 R:E 2002

[2]https://www.law.cornell.edu/wex/mens_rea

[3]https://www.crimemuseum.org/crime-library/criminal-law/actus-reus/

[4]Ibid

[5]Cap 16 R:E 2002

[6]Ibid

[7]https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/4598/index.do

[8][1984] 1 SCR 208

[9]Ibid

[10]https://en.m.wikipedia.org/wiki/Transferred_intent

[11] Ibid

[12] Ibid