The
accused person was charged with the murder of Chipo Muyaya. It was
alleged that on 29 January 2006, at Tienga Village, Chief Svosve in
the Wedza communal area he killed the deceased by striking her on the
head with a stone causing injuries from which she died on 6 February
2006.
In
his plea, the accused person stated that he did not know what was
happening at the time in question as he was suffering from a mental
disorder. We entered a plea of not guilty.
The
State did not call any witnesses. It moved, in terms of section 314
of the Criminal Procedure and Evidence Act [Chapter
9:07],
for the admission into evidence of the testimonies of the nine
witnesses captured in the summary of the State case. Three affidavits
were produced by consent. These were exhibit 1, the psychiatric
report compiled by Dr Dickson Chibanda on 22 April 2009; exhibit 2,
the post mortem report of 9 February 2006 complied by Dr Masokovere
and exhibit 3, the medical affidavit of Dr Joka on the examination of
the deceased on 1 February 2006. The State failed to produce the
weapon used to inflict the injury which caused the death of the
deceased.
The
accused person testified and called the evidence of his cousin,
Yonnah Mazenge, and the psychiatrist, Dr Chibanda.
The
evidence that was led on how the deceased received the fatal injuries
was common cause.
Yonnah
Mazenge told us that the accused suffered from mental illness for the
first time in 1998 when he was in Form 1. He missed school during the
second and third terms of that year while receiving treatment from a
traditional healer. He relapsed in December 2005 at a military
recruitment camp in Wedza. He deserted the camp for his rural home in
Wedza. At home, he joined others to weed the crops. He stopped
everyone from weeding intimating that he would weed the whole field
by himself that night. Thereafter, he ran into the bush, broke a
branch of a tree which he alleged was his prophetic rod. The accused
exhibited uncontrollable and excessive strength. He was taken to
Mount St. Mary's Hospital for mental treatment by his brother and
sister. He ran away and started scavenging for food in dust bins at
Wedza Growth Point. He went back to his communal home where every one
deserted the homestead in fear of him. He then disappeared. He
injured the deceased during the time that they were looking for him.
She located him after his arrest.
The
evidence of Lydia Warikandwa, the deceased's daughter, set out how
the deceased was injured. The accused arrived at their homestead on
29 January 2006 at around 4pm. He intimated his desire to kill five
people and drink their blood. The deceased's attempts to make
conversation were rebuffed. It dawned on the mother and child that
the accused was mentally disordered. They left their homestead to
look for firewood but he followed them and grabbed hold of the
deceased by her left arm. A struggle ensued. Lydia called for help
from Remigious and Plaxedes Sengudzwa. Remigious was assaulted by the
accused person as he struggled to rescue the deceased. The accused
shouted at him that he was a goblin that had been sent by God. The
accused easily threw Plaxedes to the ground. The deceased managed to
escape to her kitchen hut wherein she locked herself. Undeterred, the
accused threw several stones into the hut through an open window. The
deceased cried out in agony from inside the hut. The accused then
left. In the hut, the deceased was bleeding from the head. There was
a big stone that was blood-stained in the hut.
On
30 January 2006 the deceased went to Wedza police station where she
was referred to Wedza Hospital where she was referred to Harare
Hospital. At Harare Hospital she was attended by Dr Joka who observed
that she had a laceration on the head which he sutured on 1 February
2006 and discharged her. She returned to her communal home on 2
February 2006. The deceased continued to complain of painful
headaches. She died on 6 February 2006. The pathologist noted…,
that she had sustained a blunt trauma on the right parietal area. He
observed a depressed skull fracture of the right parietal bone and
subdural haemorrhage and concluded that death was due to intracranial
haemorrhage arising from the head injury.
Taurai
Mupawaenda, a policeman, arrested the accused person on 30 January
2006 after he surrendered himself at the police station. He failed to
record a warned and cautioned statement from him as he was
incoherent. Sergeant Marowa retrieved the big stone that caused the
injury and ferried the body of the deceased to Marondera Hospital
mortuary.
While
the weapon that caused the injury was not produced for us to
determine whether subjective foresight of death could be attributed
to the accused person, we are satisfied that death was occasioned by
the injury that was inflicted on the deceased by the accused person.
In the absence of the stone and taking into account the manner in
which death occurred, we are not satisfied that the accused possessed
the necessary constructive intention to cause death.
The
evidence at hand indicated that he indiscriminately threw the stones
into the hut where the deceased had sought refuge. It appeared that
one of the stones managed to hit the deceased on the right side of
her head close to the ear. The accused left the scene after the
deceased cried out that she had been injured. She went to Harare
Hospital where the doctor wrongly diagnosed that the injury was not
life threatening. Death occurred eight (8) days later. We find these
facts consistent with an objective appreciation that death could
result rather than
the existence of a subjective foresight that death would result. The
facts reveal that the accused negligently caused the death of the
deceased. In our view, his actions would have given rise to a
conviction of culpable homicide rather than murder.
The
psychiatrist testified. He confirmed the contents of his report…,.
He referred to collateral history recorded in the reception order,
the magistrate's report, and two medical reports compiled by two
doctors and the State Outline. He noted from the collateral sources
that the accused person was mentally disordered at the time he
inflicted the injury. His opinion was justified by the evidence of
Yonnah Mazenge, Lydia Warikandwa and the arresting detail, Taurai
Mupawaenda.
When
he examined the accused person he observed that he had responded well
to medication and did not exhibit symptoms of psychopathology. He was
no longer experiencing both auditory and visual hallucinations. He
had good thought and speech processes and interacted well with other
inmates. He certified him fit for trial.
In
his oral testimony, he stated that the accused person was still on
medication and would need to remain on medication for upwards of a
year. He was receiving a weekly injection of 200 milligrams of
chlorpromazine and a monthly dose of modicate. The modicate remained
in his blood stream for a period of 6 weeks and was administered to
those patients who were at risk of defaulting in taking medication.
He emphasized that the accused would relapse if he stopped taking
medication. He would recommend the accused's release to his family
members who were prepared to regularly bring him to Harare
Psychiatric Hospital for medication and review.
In
their oral submissions, both the State and defence counsel were
agreed that the accused person lacked the mental intention to commit
murder by reason of the mental disorder that afflicted him. We agree
that he did not possess the mens
rea
to commit the crime of culpable homicide that we would have found him
guilty of had he not been suffering from a mental disorder. In terms
of section 29(2) of the Mental Health Act [Chapter
15:12],
we
find the accused person did acts which would amount to culpable
homicide but when he did so he was mentally disordered or
intellectually handicapped to such an extent that he was not, at law,
responsible for his actions.
We
accordingly enter a special verdict of Not Guilty because of
insanity.
KUDYA
J:
Sentence
Counsel
for the accused submitted that I should release the accused into the
care of Yonnah Mazenge who is prepared to take him to Harare
Psychiatric Hospital for treatment and review. Counsel for the State
submitted that he be returned to a special institution for treatment.
I
have the discretion on how to sentence the accused person. The three
courses of action that I may take are set out in paragraphs (a), (b)
and (c) of subsection 2 of section 29 of the Mental Health Act.
Paragraph
(c) allows me to order the release of an accused person who has
recovered. It is not applicable to the accused person who still
requires intensive medication and management at a psychiatric
institution. Paragraph (b) does not apply as he would not have been
sentenced to a fine for culpable homicide arising from an assault.
Even if a fine was suitable, it would have been more than level 3,
which at present is equivalent to US$20=. The only viable option that
remains is paragraph (a). The accused person still requires
examination and continued treatment at a special institution. He
remains a danger to himself, and others, if he defaults medication.
He is assured of continued medication in a special institution rather
than at home where the risk of default cannot be ruled out. I will
order his return to custody for transfer to a special institution for
treatment.
I
have in mind Chikurumbi Hospital Extension which was declared a place
in lieu
of special institution by General Notice No.51/2000 published in the
Government Gazette of 18 February 2000.
Accordingly,
it is ordered that:
1.
The accused is not guilty of culpable homicide because he was
mentally disordered or intellectually handicapped at the time he
committed the offence.
2.
The accused shall be returned to prison for transfer to Chikurumbi
Hospital Extension for treatment.
