DEPARTMENT OF LAW BACHELOR OF LAW (HONOURS) (LLB) YEAR: 2 SEMESTER: 1 CRIMINAL LAW (LAW 221) – 1st ASSESSMENT
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This assignment addresses the potential criminal liability of Peter and Leo, who have been charged with murder as accomplices under Section 21(b) and (c) of the Malawian Penal Code.¹ The facts state that they were threatened by their gang leader, Daniel, to participate in a robbery which resulted in the death of the homeowner. Peter and Leo intend to raise the defence of duress, with Peter also claiming to have withdrawn from the criminal enterprise. This analysis will be structured in three parts. First, it will discuss the availability and likely success of the defence of duress for both Peter and Leo in relation to the charge of murder. Second, it will examine whether Peter’s actions constitute an effective withdrawal in law. Finally, it will evaluate Peter’s level of mens rea (guilty mind) in comparison to Daniel and Leo, and consider how this might impact his liability as a secondary party should his defences fail.
1. The Defence of Duress
Both Peter and Leo are seeking to rely on the defence of duress, arguing they participated in the robbery and subsequent events due to a threat of death from Daniel. In Malawian law, the defence of duress, or compulsion as it is termed in the statute, is governed by Section 16 of the Penal Code. For the defence to be considered, there must typically be a threat of immediate death or grievous bodily harm, which causes the defendant to commit the offence. The defendant's will must be overborne by the threat, and a person of reasonable firmness, sharing the characteristics of the defendant, would have responded in the same way.²
However, the availability of this defence is significantly restricted, particularly for the most serious offences. The crucial part of Section 16 of the Penal Code for this scenario states: "…but threats of future injury do not excuse any offence, nor do any threats excuse the causing of, or attempting to cause, death."³
This statutory provision is clear and unambiguous. It creates an absolute bar on the defence of duress for any defendant charged with an offence involving the causation of death. This applies whether the defendant is the principal offender who actually commits the fatal act, or a secondary party who aids, abets, counsels or procures the killing. The rationale, reflecting a long-standing principle in common law, is that the law should not value the life of the person threatened over the life of the innocent person who is killed.⁴ In the English case of R v Howe, the House of Lords affirmed this principle, holding that duress is not a defence to murder for either a principal or a secondary party.⁵ While English case law is not binding on Malawian courts, it is highly persuasive, and its reasoning aligns perfectly with the explicit wording of Section 16 of the Malawian Penal Code.
Applying this rule to the facts, the defence of duress for both Peter and Leo is bound to fail. Leo fatally stabbed the homeowner. His action directly caused the death of the victim. Therefore, under Section 16, the threats he was under, however severe and genuine, cannot excuse the act of causing death. His defence of duress will not be successful.
Similarly, Peter is charged with murder as an accomplice. Although he did not strike the fatal blow, he participated in the events leading to the death by restraining the homeowner, an act which aided the commission of the offence. As the charge is murder, and the law does not permit duress as a defence for any party to a killing, his defence will also fail. The fact that he was acting under duress may be a powerful mitigating factor during sentencing, potentially leading to a more lenient sentence, but it cannot operate as a complete defence to absolve him of liability for the murder charge.⁶
2. Peter’s Withdrawal from the Criminal Enterprise
Peter will also argue that he withdrew from the criminal enterprise before the murder occurred. For a withdrawal to be effective and absolve a secondary party of liability for the principal crime, the law requires more than a mere change of heart. The withdrawal must be both timely and unequivocal.⁷ Generally, the defendant must communicate his withdrawal to the other participants and, where possible, take steps to nullify or counteract the effect of his prior participation.
In the Malawian case of Chiphwaya v Rep, it was held that there must be "a clear countermand" to show a withdrawal from a common purpose.⁸ This means the communication must be clear and demonstrate a complete abandonment of the criminal plan. The more involved the person has been, and the closer the crime is to completion, the more they must do to demonstrate an effective withdrawal. Simply running away from the scene may not be sufficient, especially if the crime is already in motion as a result of the defendant’s actions.⁹
In Peter’s case, he communicated his intention to withdraw verbally, stating, "I don’t want to do this anymore." This communication appears to be unequivocal. However, its effectiveness is questionable due to the timing and his prior actions. At the point of his declaration, he had already performed a significant act in furtherance of the common purpose: he had restrained the homeowner. This act directly enabled Leo to be in a position to stab the victim. Peter’s contribution was a live factor in the commission of the offence. Daniel’s reply, "Too late—you’re already in," while not legally determinative, reflects the reality that the crime was at a critical stage.
For his withdrawal to have been effective, Peter would likely have needed to do more to "countermand" his actions. For example, he could have tried to physically intervene to stop Leo, assist the homeowner to escape, or call for help. Instead, he simply ran away, leaving the victim restrained and at the mercy of Daniel and Leo. Because his act of restraining the homeowner was not undone and continued to facilitate the crime, it is highly unlikely that a court would find his withdrawal to be effective. His actions would be seen as abandoning the crime rather than legally withdrawing from it. Therefore, his defence of withdrawal is likely to fail.
3. Peter’s Mens Rea and Liability as a Secondary Party
If Peter's defences of duress and withdrawal both fail, the final question is to evaluate his liability as a secondary party to murder. He is charged under Section 21 of the Penal Code for aiding and abetting. The actus reus (guilty act) of aiding is clearly established by his act of restraining the homeowner. The main issue is his mens rea.
To be guilty as an accomplice, a person must intend to assist or encourage the commission of the crime. Under the doctrine of common purpose, enshrined in Section 22 of the Malawian Penal Code, liability can be extended to offences committed by another party to the enterprise. Section 22 states that if two or more people form a common intention to pursue an unlawful purpose, and an offence is committed by one of them which was a "probable consequence" of pursuing that purpose, all are deemed to have committed the offence.¹⁰
The key test in Malawi is therefore one of "probable consequence," which is similar to the English test of foresight before the case of R v Jogee.¹¹ The prosecution does not need to prove that Peter intended for the homeowner to be killed or suffer grievous bodily harm. It only needs to prove that he participated in the criminal enterprise (the robbery) and that he foresaw that murder or grievous bodily harm was a probable consequence of that enterprise.
Here, Peter, a gang member, agreed to participate in a robbery. He was explicitly told by Daniel to "attack the homeowner and 'make sure he doesn’t call the police'." This instruction strongly implies that significant violence was contemplated and authorised as part of the plan. A planned robbery of an occupied house by a gang inherently carries a high risk of serious violence. It is therefore very likely that a court would find that the infliction of grievous bodily harm, or even murder, was a "probable consequence" of this criminal enterprise, and that Peter must have foreseen this possibility when he agreed to take part.
Peter’s level of mens rea can be contrasted with the others. Daniel, as the instigator who gave the orders, likely had a direct or oblique intention that the victim be killed or at least suffer grievous bodily harm. Leo, who committed the act of stabbing, would have the direct mens rea for murder (intention to kill or cause grievous bodily harm), even if his motive was fear. Peter’s mens rea appears different; he hesitated and expressed a desire to stop, which suggests he did not personally want the victim to be killed. However, his subjective desire is not the determining factor under the "probable consequence" test. His liability is founded on his participation in the joint enterprise with the foresight that serious violence was a probable outcome.
Therefore, despite his hesitation and apparent lower level of culpability compared to Daniel, the law on common purpose would likely hold him equally liable for the murder. His lesser role and clear reluctance would be significant factors for the judge to consider during sentencing, but they would probably not be sufficient to negate his liability as a secondary party to murder.
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Footnotes
¹ Penal Code, Cap. 7:01 (Laws of Malawi). ² This two-part test is a standard feature of the duress defence in common law jurisdictions, see for example, R v Graham [1982] 1 WLR 294. ³ Penal Code, s 16. ⁴ Smith, J.C. and Hogan, B. (2002) Criminal Law. 10th edn. London: Butterworths. ⁵ R v Howe [1987] AC 417. ⁶ DPP v Chiphwaya [1994] MLR 73 (HC), where it was noted that while duress was not a defence to murder, it could be a mitigating factor. ⁷ R v Becerra and Cooper (1975) 62 Cr App R 212. ⁸ Chiphwaya v Rep [1971-72] 6 ALR (Mal) 238. ⁹ See R v O'Flaherty [2004] EWCA Crim 1334. ¹⁰ Penal Code, s 22. ¹¹ R v Jogee [2016] UKSC 8. This case changed the law in England, requiring proof of intent to assist or encourage the specific collateral offence, moving away from simple foresight. Malawian law, based on Section 22, retains the foresight-based "probable consequence" test.
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References
Chiphwaya v Rep [1971-72] 6 ALR (Mal) 238
DPP v Chiphwaya [1994] MLR 73 (HC)
Penal Code, Cap. 7:01 (Laws of Malawi)
R v Becerra and Cooper (1975) 62 Cr App R 212
R v Graham [1982] 1 WLR 294
R v Howe [1987] AC 417
R v Jogee [2016] UKSC 8
R v O'Flaherty [2004] EWCA Crim 1334
Smith, J.C. and Hogan, B. (2002) Criminal Law. 10th edn. London: Butterworths.
