MAMAH HAUSAH vs. THE REPUBLIC [1973] 2 GLR 293

CASES REFERRED TO

(1) R. v. White (1871) L.R. 1 C.C.R. 311; 40 L.J.M.C. 134; 24 L.T. 637; 36 J.P. 134; 19 W.R. 783; 12 Cox C.C. 83, C.C.R

(2) R. v. Renshaw (1847) 9 L.T. (o.s.) 395; 11 Jur. 615; 2 Cox C.C. 285.

(3) Iannella v. French (1969) 119 C.L.R. 84.

(4) R. v. Williams (1910) 26 T.L.R. 290; 4 Cr.App.R. 89; 74 J.P. 99, C.C.A.

NATURE OF PROCEEDINGS

APPEAL against conviction for unlawful exposure of a child contrary to section 71 of Act 29. The facts are fully set out in the judgment.

COUNSEL

Carson for the appellant.

Turkson, State Attorney, for the respondent.

[p.294] of [1973] 2 GLR 293

JUDGMENT OF EDWARD WIREDU J.

On 31 May 1972 the appellant was tried and convicted in the District Court Grade I, Cape Coast, for an offence under section 71 of the Criminal Code, 1960 (Act 29), and was bound over in the sum of ¢200.00 with one surety to be of good behaviour and to keep the victim of the offence, his own child, under proper care for a period of twelve months or in default of which he was to serve three months’ imprisonment with hard labour. The information laid against him reads as follows:

“For that you on the 3rd day of March 1972 at Bakano Cape Coast in the Central Magisterial District and within the jurisdiction of this court, then being the father of Dawuda Hausa, aged five and half years, did expose the said child to moral and physical danger.”

It is against his conviction that he has appealed to this court on the following grounds:

“(1) That the judgment cannot be supported having regard to the evidence adduced.

(2) That the learned trial magistrate misdirected himself on the law and gave an erroneous decision.”

The facts of this case may be briefly stated as follows: The appellant is the father of a five-year male child attending a Muslim school in Cape Coast. On the day in question the mother of the boy left him with the appellant when she was going to the market. The evidence shows that the appellant left the child alone in the compound of the court’s premises where he works as a caretaker and went out to buy a newspaper. In his absence the boy strayed into the streets and was knocked down by a taxi cab. He was immediately rushed down to the hospital where he was treated for the injuries he sustained. The matter was later reported to the police and the appellant was charged with the offence of unlawfully exposing the child under section 71 of Act 29 of 1960. The appellant in his defence testified as follows:

“On that morning, I was sent by one of the judges. I left the child in the compound. I was sent to go and buy the Graphic. When I came back I went to give water to some of the visitors who came to the court. I was later told that the child had been hit by a vehicle. When I was going to buy the Graphic, my son was in the yard. My son attends school. He is able to go to school on his own and he sometimes goes with his brothers and sisters. He attends Arabic school. It was a few minutes after my return, that I was told of the accident.

This was the only occasion I had left my son alone in the compound. It is not correct that I did expose the child to moral or physical danger. Occasionally my son used to play with one Mr. Ampaw’s sons in the yard.”

Cross-examination:

“My son is aged five years ten months. My wife went to sell, she could not take him up so she brought him up to me in my care.

[p.295] of [1973] 2 GLR 293

When I was leaving to buy the Graphic, I did not leave my son in charge of anybody. Because he used to play on his own. Mr. Ampaw’s house is by the court. It is not across the road, it is along the road. When I was going to buy the Graphic he was in the yard. When I came back he was not in. It is not correct that I exposed the child. The accident did not happen in the road.”

The learned trial magistrate after reviewing the evidence held as follows:

“Leaving the victim unattended knowing very well that the victim could wander outside the yard is in the opinion of this court exposing the child to a danger. If in fact the accused had left the child in the care of another person while he was away just like his very sensible and intelligent wife did, his conduct would have been justified in law even though the child might have been injured while in the care of the other caretaker.

In the premise therefore, the conduct of the accused was unjustifiable in law and therefore was unlawful.

Accused is therefore found guilty and convicted accordingly.

Accused is bounded in the sum of ¢200.00 with one surety to be of good behaviour and keep victim under proper care for a period of twelve months or in default three months’ imprisonment with hard labour.”

When the appeal came on for hearing Mr. Carson for the appellant attempted to attack the information as laid on the ground that the particulars of offence were defective. No ground of appeal had been filed to this effect and I rejected counsel’s plea to add that ground because he was the very counsel who appeared in the court below and the point being one of a technical nature should have been taken at the earliest opportune time and in any case the defect if there was any did not appear to have embarrassed or prejudiced the defence or occasioned any substantial miscarriage of justice within the meaning of section 26 (12) of the Courts Act, 1971 (Act 372).

Learned counsel therefore concentrated his submissions on ground (2). Arguing on the said ground learned counsel submitted that in order to appreciate the nature of the offence envisaged under section 71 of Act 29 one must look at sections 78 and 79 to find out the nature of duties the law imposes. He submitted that merely leaving a child in the house unattended to go on an errand is not the type of exposure contemplated by section 71. Continuing, learned counsel submitted that in the instant case the child was capable of going to school alone and that the conduct of the appellant could not be said to have offended against the spirit of the section. Counsel argued that an unlawful exposure connotes criminal negligence which must be above the ordinary level as applied in civil suits. He submitted further that even if the appellant could be said to have been negligent his conduct was not of such a gross nature as to justify a criminal conviction. Learned counsel therefore submitted that the conviction of te appellant was wrong in law.

[p.296] of [1973] 2 GLR 293

Replying on behalf of the Republic, Mr. Turkson, state attorney, submitted that sections 71 and 78 of Act 29 create different offences which are quite distinct and that it would be wrong to look at the latter in order to understand the type of offence contemplated under section 71. Learned state attorney submitted that the obligations imposed under the two sections are not the same and any omission to carry out any such duties which are imposed on persons having the custody of the persons mentioned therein opens that person to prosecution under the appropriate section.

Counsel further argued that the evidence on record justified the conviction of the appellant under section 71. He argued that the victim of the accident was at the material time under the care of the appellant who left him under circumstances which opened him to harm. He submitted that the victim being under seven years and having received harm under those circumstances in which the appellant left him, his conviction under section 71 was justifiable.

Section 71 of Act 29 under which the appellant was charged reads as follows: “Whoever unlawfully exposes or abandons any child, under seven years of age, in such a manner that any harm is likely to be caused to it, shall be guilty of a misdemeanour.” This section like section 78 comes under Chapter 3 of Act 29 which deals with criminal harm to persons. Almost all the sections dealt with under this chapter talk of unlawful harm which is defined by section 76 as follows: “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter I of this Part.” No actual definition of the word unlawful has been given in the Code but a close look at section 76 reveals that harm is unlawful if it is negligently caused or intentionally caused. It would therefore appear from this that unlawfulness under the chapter is any act or omission that can be said to be caused by a negligent or intentional act.

The next question to decide is what kind of negligent or intentional act is envisaged under the said chapter? Is it criminal negligence in the sense of gross negligence going beyond the ordinary civil test? As far as the intended act is concerned there is no difficulty about it because section 11 of Act 29 deals with criminal intent in an exhaustive way. In order to appreciate the nature of negligence necessary to justify prosecution under section 71 if that be a material element we shall have to examine some analogous English statutes and case law on the subject to see how far they can afford us some useful guide.

By section 27 of the Offences against the Person Act, 1861 (24 & 25 Vict., c. 100), it is an offence if anyone unlawfully exposes or abandons any child being under two years whereby the life of such child shall have been or shall be likely to be endangered or permanently injured. Russell in his invaluable book, Russell on Crime (12 ed.), Vol. 1 at p. 698 describes section 27 as a new law in 1861 intended to provide for cases where children are abandoned or exposed under such circumstances that their lives or health may be or are likely to be endangered. One of the cases

[p.297] of [1973] 2 GLR 293

decided under section 27 of the 1861 Act was R. v. White (1871) L.R. I C.C.R. 311. The facts of that case were as follows: The accused was the father of a child under two years of age. The mother, who was living apart from the accused, brought the child to him and left it outside the door of his house at about 7 p.m. She left, and the accused afterwards came out of the house, stepped over the child, and went away. An hour and a half afterwards the child was still lying in the road outside the wicket of the garden. The accused’s attention was called to the child when he came home, after a further interval of an hour and a half. He said that he would not touch it, and that whoever brought it there must come and take it. The child was found at 1 a.m. lying cold and stiff. On a case reserved it was held, that the appellant was rightly convicted of having abandoned and exposed the child, within the meaning of section 27.

It is clear from the above cited case that the gravamen of the offence is the unreasonable behaviour or conduct of the prisoner in failing to take reasonable care of the child under circumstances in which he found it thereby opening it to the chance of harm. In yet another case R. v. Renshaw (1847) 2 Cox C.C. 285, a mother who left her ten day old child at the bottom of a dry ditch by which there was a path and a lane separated from a ditch by a hedge escaped conviction because, according to Parke B., the child suffered no hurt nor injury of any kind nor any other form of exposure. So that the test is whether the conduct of the accused could be said to be reasonable in the particular circumstances of the case whereby the victim receives some hurt or other form of injury. I therefore do not share the view that the type of negligence envisaged within the meaning of section 71 is gross negligence as contended by learned counsel for the appellant. Even though the nature of the offence is criminal the duty imposed is a civil one.

I will not hesitate, therefore, from the decided cases, to say that the test is rather on the lower side, equivalent to the civil test, namely, that the behaviour of the person who although innocent of ill intention, has failed to measure up to the standard set by law which is usually that of a reasonable man. The spirit of section 27 of the English Act of 1861 is no different from that of section 71 of Act 29 and I think the test for both must be the same. In the Australian case of Iannella v. French (1969) 119 C.L.R. 84, Taylor J. at p. 101 when dealing with what amounts to a wilful act held:

“It cannot, in my view, be said that ignorance of the state of the general law operates to exonerate a person who has so acted as to expose himself to the sanctions of the criminal law or that a mistaken belief that the law is such that his acts do not constitute an offence means that he did not do those acts wilfully.”

Any wilful act of the prisoner must therefore be sufficient to justify prosecution. In view also of the above observation I have no difficulty in rejecting the submission by learned counsel for the appellant that in order to appreciate the nature of the offence contemplated under section 71 the

[p.298] of [1973] 2 GLR 293

duties spelled out in section 78 and 79 of Act 29 must be read along with it. In the case of R. v. Williams (1910) 4 Cr. App.R. 89, C.C.A. the accused was charged under section 12 of the Children Act, 1908 (8 Edw 7., c. 67), with exposing and neglecting his children. He took his children out of Westbury Workhouse and started for a place 30 miles away. The weather was very bad. They arrived at Chepstow and could not obtain sleeping accommodation at a common lodging house. He was offered a fine room to sit up in. He refused this and decided to go on although he might have procured lodging in a workhouse. The word “expose” within the meaning of section 12 of the Children Act, 1908 (8 Edw. 7, c. 67), cae up for consideration. Counsel for the accused contended that to “expose” meant to physically place children somewhere with intend to injure. This argument was rejected and according to Darling J. at p. 93: “The statute, however, tries to prevent unnecessary suffering, and the prisoner had dragged the children about the roads instead of providing them shelter.” No gross negligence was proved here.

With the above exercises as a guide, we shall now examine the prosecution’s facts against the appellant to determine how his conviction can be sustained. There is no doubt that the victim of the accident was a child aged under seven and was under the care of the appellant at the material time. There is also no doubt that when the appellant was leaving to go and buy a newspaper he left the victim to his fate unattended thereby giving him a careless freedom whereupon he strayed into the street involving himself in a motor accident. The question here is whether the conduct or behaviour of the appellant in leaving the victim under those circumstances amounts to unlawfully exposing him to danger within the meaning of section 71? In other words did the appellant’s conduct even though innocent of ill intention fail to live up to the standard set by the law?

I have no hesitation in giving an affirmative answer to the question posed, because the appellant negligently left the child without proper care instead of leaving him with another grown-up person when going out to buy the newspaper and by his neglect the child strayed into the streets thereby sustaining an injury. It follows that the appellant’s behaviour on the particular facts of the case is caught by the provisions of section 71 of Act 29 and he was therefore rightly prosecuted and convicted. The appeal against conviction therefore fails and it is accordingly dismissed.

DECISION

Appeal dismissed.

S. E. K.