HLATSHWAYO JA:
The appellant was convicted of murder with actual intent by the High Court
sitting at Hwange on 5 July 2013.
It was not in dispute that on 26 April 2011 the appellant
killed the deceased, his own brother, by decapitation with a sharpened
axe. What, however, remained unclear at the close of the defence case was
what had motivated the appellant to commit such a gruesome murder. Unconvinced
by the appellant's explanation for his conduct, the court ordered an
examination of the appellant by two doctors in terms of the Mental Health Act [Cap
15:12]. The two doctors on 22 July 2011, three months after the
commission of the offence, found some evidence of mental defect and recommended
that the appellant be referred to a psychiatrist. Some seven months later
on 17 February 2012, the psychiatrist carried out her first of several
assessments from which she concluded that the appellant was not labouring under
any mental illness at the time of the commission of the offence.
Placing reliance on the findings of the psychiatrist, the
trial court convicted the appellant of murder with actual intent and sentenced
him to death after finding that there were no extenuating circumstances.
The appellant has now approached this Court on automatic appeal against both
conviction and sentence.
The facts of this case are bizarre. The two brothers
– the deceased and the appellant – aged 31 and 27 years respectively at the
time of the commission of the offence had a disagreement over the sharing of
groundnuts with the deceased claiming that the appellant had taken a greater
portion of the nuts. The deceased then proceeded to chastise the
appellant with a switch as if he was a child. The appellant says that
this humiliating treatment infuriated him. Nonetheless, he carried on
with the day's task of herding cattle with the events of the morning apparently
forgotten. However, upon seeing his brother in the evening, the appellant
claims that his anger was reignited. After they had retired for the
night, the appellant woke up, sharpened an axe and decapitated the deceased in
his sleep.
The only
witness who was called by the State, Nobantu Mabhena, aunt to both deceased and
appellant, maintained that the brothers had never fought, not even on the
fateful day, and generally lived peacefully together. She could not say
that the appellant was a violent person although she speculated that he could
have acquired some violent streak from his stay in South Africa.
This
apparently motiveless, odd and bizarre murder should have alerted the defence
counsel, prosecution and the court – but more so the defence counsel – to
the possibilities of “mental or emotional fragility” on the part of the
appellant as was observed in S v Mukombe 1991 (1) ZLR 138 (SC) p.
139. Commendably, the court a quo did institute the procedures
for the mental examination of the appellant, but the final consideration of the
psychiatric report still left a lot to be desired as will be shown below.
However, the defence counsel woefully failed to heed the clanging alarm
bells. The defence counsel should have interviewed “the appellant's family,
friends, co-workers and former employers, in an attempt to discover whether
[the appellant] had any history of strange behaviour,” as was said in Mukombe
(supra).
As it turned
out the crucial evidence of the appellant's “mental and emotional fragility”
appears in his mother [Sibongile Ndzombane]'s affidavit submitted to the
psychiatrist as follows:
“During childhood he used to isolate himself, being shy
person. Went to school up to Grade 7, was good student, failed to further
his education due to financial problem. Went to Republic of South Africa
to look for job and in 2007 was hit by gangsters and suffering from head
trauma, hospitalised for some time due to head trauma. After discharge in
2007, displayed mental disturbance, was said to wander about and eating from
street bins. The friends brought him back to Zimbabwe. He was
talking to himself, smiling into space. I took him to hospital, United
Bulawayo Hospital, but the doctor did not send him for treatment for mental
problem, they wanted to see him displaying mental problem only gave him
Paracetamol for headache. I sent him to father (as we divorced) and I
don't know what happened to him during his stay with his brother only heard
that he axed his brother and hid the corpse away in the bush.”
Now, the
mother, Sibongile Ndzombane, was never called to testify at the trial, even
after the above testimony had come to light with the production of the
psychiatrist's affidavit. Had she been called her evidence could have
been weighed by the court side by side with the expert conclusion of the
psychiatrist. But as it is, her evidence is as good as a footnote in the
psychiatrist's report.
The Russian
– trained psychiatrist – one of the very few in the whole country – Dr Elena
Poskotchinova concluded her affidavit as follows:
“In my opinion there is no evidence of mental illness or
mental retardation at present. He was mentally stable at the time of
crime and responsible for his action, probably he got head trauma in 2007
[result of EEG confirmed moderate to high amplitude posterior dominant
alpha] and had psychotic behaviour in 2007 – 2008. But since 2010
there is no evidence of mental disorder (OPD cards confirm only pain on old
suture line by doctor from United Bulawayo
Hospital)”.
However, the psychiatrist was not called to give viva
voce evidence – her evidence being just formerly and routinely admitted
into the record. After her evidence was read into the record, the learned
trial Judge just expressed gratitude to the psychiatrist and proceeded straight
away to judgment in which he observed in this regard as follows:
“The court referred the accused to be examined by a
psychiatrist to ascertain his mental state in the light of the bizarre manner
in which the murder was committed. Dr. Elena Poskotchinova's report was
produced as Exhibit 8. The psychiatrist concluded that there was no
evidence of mental illness or mental retardation at present on accused.
The accused was mentally stable at the time of the crime and responsible for
his action. He is fit to stand trial. The accused waited for
deceased to fall asleep. He sharpened the axe and then struck deceased
firstly on the head followed by several blows on the neck to the extent of
chopping the head off to ensure that he was dead. The accused is
therefore guilty of murder with actual
intent.”
It was submitted that it was incumbent on the court a
quo to conduct an inquiry through calling of oral evidence from the
psychiatrist who examined the appellant. I agree. It was necessary
to hear viva voce evidence from the psychiatrist, from the mother of
the appellant and any other relevant person. The psychiatrist would have
had to explain to the court the basis for her affirmative finding that from
2010 onwards the appellant no longer suffered from any mental illness
especially in the light of the fact that she accepted that the appellant had
suffered from some “psychotic disorder” between 2007 and 2008. There are
more questions which remained unanswered because of this oversight such as
whether considering the lapse of seven months between being seen by the two
doctors and the appellant's assessment by the psychiatrist evidence of mental
defect that had been observed by the doctors could have disappeared?
Whether in the light of the two doctors' observation in 2011, the
psychiatrist's affirmative assessment that from 2010 onwards the appellant
suffered no mental illness was sustainable? What was it that the two
doctors observed post 2010 which necessitated the referral to a psychiatrist if
not some mental
defect?
And as regards the appellant's previous mental infirmity,
the psychiatrist could have helped shed light on whether the possibility
existed for an illness induced by the noted head injury to recur even be it
only temporarily.
Section 278
of the Criminal Procedure and Evidence Act (CPEA) allows the production of
medical reports from doctors in affidavit form. However, the court has
the discretion in terms of s 280 to order that the doctor be summoned to give
oral evidence at the trial. The court may also send written questions to
the expert who is enjoined to reply thereto. As was observed in G. Feltoe's
Judges' Handbook For Criminal Cases 1st ed, 2009 Legal
Resources Foundation p. 71.
“It will be necessary to use the power to ask the doctor to
give oral testimony when the original affidavit is inadequate and the court is
unable to arrive at a just decision on the basis of this report. If the
information is very scanty or vital information is omitted, or the information
in the report seems to be contradictory, this power should be exercised.
But if it contains all the necessary information there will be no need to
summon the doctor. Anock 1973 RLR 154 (A); Sibanda A –
10 – 72 Melrose 1984 (2) ZLR 217
(S).”
The interrogation through oral testimony of expert evidence
given on affidavit is necessary to avoid the error of treating such evidence as
gospel truth or divine revelation.
Expert
opinion evidence is admitted to assist the court to reach a just decision by
guiding the court and clarifying issues not within the court's general
knowledge. In Mandy v Protea Assurance Co. Ltd 1976 (1) SA 565
at p. 569 it was stated that it was not the mere opinion of the expert witness
which is decisive but his or her ability to satisfy the court that, because of
the special skill, training and experience, the reasons for the opinion
expressed are acceptable. However, in the final analysis, the court
itself must draw its own conclusions from the expert opinion and must not be
overawed by the proffered opinion, and simply adopt it without questioning or
testing it against known parameters.
In S v
Zuma 2006 (2) SACR 257 at p. 263 the court held that the expertise of a
professional witness should not be elevated to such heights that sight is lost
of the court's own capabilities and responsibilities in drawing inferences from
the evidence. And, in my view, the court can only do this well if it
requires the expert witness to give oral evidence in the clarification and
elucidation of an affidavit that is otherwise technically dense and
incomprehensible, contradictory or inadequate in all respects except the
conclusion. A court errs when it merely adopts the conclusions of an
expert report without exercising its mind on it by, for example, calling for
oral testimony or drawing the necessary inferences from the evidence.
Did the
court a quo, therefore misdirect itself in accepting the expert
evidence of the psychiatrist in the manner it did? It appears to me that
the court below did err in this regard. However, I am of the considered
view that the misdirection was not of such a magnitude as to vitiate the
conclusion that it reached on conviction. The psychiatrist's affidavit
taken in its totality shows that an Assistant Clinical Psychologist N. T. Mpofu
who examined the appellant also concluded that the “patient does not show any
sign of mental illness, and was stable at the time.” The same conclusion
was reached when the appellant was examined at a clinic as an outpatient in
July 2010. The mother's quoted evidence also shows that when she took the
appellant to hospital on suspicion of mental illness the doctors discounted it
and instead treated him for an ordinary headache. The psychiatrist also
set out cogent reasons for her conclusion, thus:
“When examined by me the accused appeared to be free from
any acute psychotic symptoms. He was full oriented in all aspects, calm,
cooperative. Denied any type of hallucination and did not display any
symptom of delusional behaviour. No decline in memory or intellect.
Denied alcohol abuse in past. Admitted his crime of killing his brother,
said the brother had spanked him like a child early morning on the day of the
crime. He complained that accused was eating too much peanuts. “I
was angry and after that axed him as punishment,” he has insight into his
mental illness. According to staff report: No evidence of unpredictable
behaviour since admission.”
Accordingly,
the court a quo's decision on conviction cannot be interfered
with. However, there are consequences for the court below's failure to
have the psychiatrist and other witnesses called as well as the unquestioning
manner in which it adopted the expert report as already discussed. The
consequences are that the possibility remains open of the appellant having been
labouring under some form of diminished responsibility or “partial mental
disorder or defect” as it is termed in the Criminal Law (Codification and
Reform) Act [Cap 9:23] (hereinafter called “The Criminal Code”).
“Partial mental disorder or defect” is defined in section
217 of the Criminal Code as “mental disorder or defect --- the effect of which
is not such as to entirely deprive the person suffering from it of the capacity
to appreciate the nature or lawfulness of his or her conduct or to act in
accordance with such an appreciation.”
In terms of s 218 if at the time a crime is committed the
capacity of the person committing it “is diminished on account of acute mental
or emotional stress, or partial mental disorder or defect, such diminished
responsibility shall not be a defence to the crime, but a court convicting such
person shall take it into account when imposing sentence upon him or her for
the crime.”
MCNALLY JA
in S v Taanorwa 1987 (1) ZLR 62 (SC) quoted BEADLE CJ in S v Sulpisio
A – 104 – 71 (not reported), thus:
“A man may not be certifiable under the Mental Disorder Act
[now the Mental Health Act] and he may not be mentally disordered within the
meaning of the criminal law, but nevertheless his mentality may be that of a man
who suffers from a diminished sense of responsibility and such a condition,
while it may not be relevant in considering verdict, may be very relevant
indeed in determining whether or not, in a case such as this, a proper sentence
should be the death sentence. If the court was satisfied that the
appellant suffered from some unusual state of mind such as having a genuine
persecution mania or that he was suffering from diminished sense of
responsibility at the time when he committed the offence, this would be a most
important factor to be taken into consideration in deciding what the
appropriate sentence should be.”
In S v
Mukombe (supra) where a psychiatric examination had not been carried out
it was held as follows:
“Finally it is pointed out that even if it is not possible
to obtain meaningful background information on the appellant, and psychiatric
evidence is inconclusive, the trial court may nevertheless come to the
conclusion, on the stark facts as they presently exist, that the appellant's
mental condition warrants a finding of diminished responsibility.” p. 141
In my
respectful view, the court in S v Mukombe may have gone too far in
suggesting as it did above that where no meaningful background information on
the appellant's mental health can be obtained and consequently the psychiatric
evidence is inconclusive a finding of diminished responsibility may still be
made on the mere “stark”, bizarre or inexplicable nature or execution of the
offence.
In the
present case, however, the difficulty perceived in the Mukombe
scenario does not arise. The bizarre facts in the present case led to the
production of a psychiatric report which contained useful background
information on the appellant's health. We have already noted that while
the psychiatric report concluded that the appellant was legally responsible for
his actions, the uncritical manner in which the report was adopted left the
possibility open that the appellant might have been suffering from some form of
diminished responsibility, which affected his moral blameworthiness.
Accordingly,
the trial court should have found extenuating circumstances on the basis of
appellant's diminished responsibility.
In assessing
the appropriate sentence, it must be noted that the appellant showed contrition
for the callous murder of his brother blaming his actions on the anger he felt
after he had been humiliatingly chastised by the deceased. The appellant
fully confessed his crime and did not seek to minimize his culpability even
where he could easily have done so, for example, by insisting on a version of
events that placed the provocation in space and time closer to the
murder. This saved the court's time and must count in his favour.
It was submitted on behalf of the appellant that a sentence of a term of
imprisonment in the range of 20 years would meet the justice of the case.
However, I am of the view that in the light of the weighty mitigatory factors
already noted the appropriate sentence should be 15 years.
Accordingly,
the appeal succeeds in part. The conviction of murder with actual intent
is upheld. However, the sentence of death is set aside, as there has been
a finding of extenuating circumstances and substituted with the following:
“The accused is sentenced to a term of 15 (fifteen) years
imprisonment.”
Ziyambi JA
I agree
Mavangira
AJA I
agree
D. W. Mhiribidi & company, appellant's legal practitioners
National
Prosecuting Authority' Office, respondent's legal
practitioners
