Criminal
Trial (Mental Health Act - Special Verdict)
MWAYERA
J:
The
accused a known mental patient appeared before the Court charged with
the crime of murder as defined in section 47(1)(a) of the Criminal
Law (Codification and Reform) Act [Chapter
9:23].
It
is alleged by the State that on 2 June 2015 at Chadamoyo 'B'
Village, Chief Garahwa, Chipinge, the accused person assaulted the
deceased using two stones. The deceased sustained severe injuries
from which the deceased died.
The
State and defence counsels came up with a Statement of Agreed Facts
tendered as exh 1 by consent. Further submitted by consent was an
affidavit of evidence marked as exh 2 by Dr Patrick Mhaka. The
affidavit confirmed that the accused was mentally disordered at the
time of the alleged crime. A post mortem report by Dr Brian Makumbe
which concluded that the cause of death was due to septicemia was
tendered as exh 3 by consent. Weight certificate of the stones was
also tendered by consent and marked as exh 4. Finally in evidence by
consent, a sketch plan by the attending details was submitted as exh
5.
The
circumstances surrounding the matter were captured in the Statement
of Agreed Facts paragraph 1-9.
Statement
of Agreed Facts
“1.
The Accused person and the deceased used to reside at Chadamoyo
Chitepo 'B' Village, Chief Garahwa, Chipinge.
2.
The deceased and the accused person are father and son respectively.
3.
On the 2nd
of June 2015 and at Chadamoyo Chitepo 'B' Village, Chief Garahwa,
Chipinge, accused person assaulted deceased using two stones several
times on the head and deceased sustained severe injuries from which
the deceased passed on.
4.
Post mortem was carried out and Dr Makumbe Brian compiled a post
mortem report and concluded that cause of death was due to
septicemia.
5.
Accused person was arrested and appeared before the Magistrates Court
in Chipinge and was committed to Chikurubi Psychiatric Centre in
terms of the Mental Health Act [Chapter
15:12].
6.
On the 6th
of July 2017, Dr Patrick Mhaka examined the accused person at
Chikurubi Psychiatric Centre and found him to be of a sound mind.
7.
Dr Patrick Mhaka a psychiatric gave his opinion and concluded that at
the time of the alleged crime, the accused was mentally disordered
and therefore could not formulate the requisite mens
rea
to commit murder.
8.
Dr Patrick Mhaka compiled his affidavit statement and will be
produced as exhibit in court.
9.
The State and defence have agreed to urge court to proceed in terms
of section 29 of the Mental Health Act [Chapter
15:12].”
Given
the evidence presented we found no reason to disagree with both the
State and defence counsel's position.
The
accused was not mentally stable when he committed the offence and as
such could not formulate the requisite intention to murder his
father. In the circumstances we found it appropriate for the court to
return a special verdict that the accused is not guilty because of
insanity; see Pretty
Matunga
HH23/13.
According
to Dr Patrick Mhaka's affidavit, the accused is now on medication
for mental disorder. He is no longer psychotic and no longer has
auditory hallucinations. Dr Patrick Mhaka examined him and found him
to be of sound mind and thus fit to stand trial. However, as
submitted by both counsels efforts to get a relative willing to stay
with accused have not yielded positive results. Both the accused's
parents are late and the accused's uncle, one Aaron Simango who
attended court advised that the accused is also living with epilepsy
and that he has problems of not taking his medicine regularly. This
causes relapse in most cases. The accused then chases fellow
villagers especially women. The uncle was reluctant to take the
accused with him. Both counsels suggested further management.
It
is our considered view that the accused might be a danger to himself
and society at large if he does not partake of his medication
regularly. He may still require further treatment
and
management for compliance so as to be guaranteed of not only his
safety but also the community at large. See S
v Sonaiso Donald Khumalo
HB61/06. The institutionalisation is necessary for the benefit of the
accused and community as it will enable constant medical attention.
The accused will then in due course be released by a suitable
tribunal in terms of the law.
Accordingly,
it is ordered that:
1.
The accused is found not guilty because of insanity.
2.
The accused be returned to Chikurubi Psychiatric Unit or any other
such appropriate institution for the treatment and management until
released therefrom by a competent body or health tribunal in terms of
the law.
National
Prosecuting Authority,
State's legal practitioners
Tanaya
Law Firm,
accused's legal practitioners
