The reference for review of the
proceedings was prompted by a letter of complaint dated 9 October 2014
addressed to the Chief Justice and copied to his deputy by the accused's
mother.
Her complaint was that her daughter
had been convicted of a criminal offence despite being mentally disordered and
incapable of appreciating the nature of her conduct. She blamed the trial
magistrate for not conducting the trial in terms of the Mental Health Act
despite that her daughter was a known mental patient previously detained at
Ingutsheni Mental Hospital. Although she claimed to have the relevant medical
records, they were never placed before the trial magistrate, and, consequently,
they are not part of the record before me. Despite her claims to the contrary
there is nothing in the record of proceedings to suggest that the police and
the trial magistrate were appraised and made aware of the accused's alleged
mental disability.
The facts giving rise to the
proceedings, according to the record before me, are as follows:
The accused is a young lady of 34
years of age residing at House Number F27, Mzilikazi, Bulawayo. On 4 October
2014, at around 23:30 hours, she was at Kudu Bar in Hatfield Harare. Whilst
outside the bar she struck and damaged the windscreen of the bar owner's motor
vehicle with an empty beer bottle causing damages assessed at US$299=.
On those facts, she was arrested and
charged with malicious damage to property as defined in section 140 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23]. She pleaded guilty
to the charge. The trial magistrate properly canvassed, and the accused
unequivocally admitted, all the essential elements of the offence. She was
accordingly convicted by the magistrate sitting at Harare on 8 October 2014
upon her unequivocal admission of her guilt. The record of proceedings reads:
“Q. Admit that on dates unknown to
the prosecutor but on 4 October 2014, and at Kudu Bar, you unlawfully and
intentionally caused damage to the property of Richard Mufunani?
A. Yes.
Q. Admit caused damage to property,
namely a Toyota Land Cruiser Reg. Number AAY 0463.
A. Yes.
Q. How did you cause damage to the
property?
A. I struck his vehicle windscreen
with 2 bottles of pilsner.
Q. Admit realised that there was a
real risk or possibility that damage could result due to your actions?
A. Yes.
Q. Any right?
Q. Any defence to offer?
A. No.
Mitigation
(i) 34 years.
(ii) Single.
(iii) One child.
(iv) Into buying and selling $150=/fortnight.
(v) $2= on person.
(vi) No money at home.
(vii) No savings.
(viii) No assets of value.
Q. Why did you commit this offence?
A. I was angry at the complainant as
he had assaulted me and thus I decided to strike his car so he would also feel
my pain. My relatives have money and we are willing to restitute same.”
It is apparent from a reading of the
record of proceedings that the accused's response to the magistrate's questions
was entirely rational and reasonable. When asked why she damaged the
complainant's motor vehicle she explained that she was venting her anger on the
complainant because he had assaulted her. She therefore had a sound rational
motive for committing the crime. Hers was not a mindless irrational criminal
behaviour often displayed by mental patients. At no time did she give the trial
magistrate any reason to believe or suspect that she was suffering from a
disease of the mind at the time she committed the offence. According to the
record of proceedings before me no one, including her mother, ever brought it
to the trial magistrate's attention that she may have been of unsound mind at
the time she committed the offence.
The accused's mother did not herself
interact with the police or the trial magistrate. All her unfounded allegations
against them are entirely based on hearsay. In my considered view, it is highly
unlikely and not in the least probable that both the police and the trial
magistrate would have failed to record the accused's alleged mental illness had
the issue been raised with them.
While our law, in the ordinary run
of things, places the onus of poof on the State, it creates an exception in
respect of the defence of insanity by shifting the burden of proof onto the
accused to prove his mental status at the material time on a balance of
probabilities. This is for the simple reason that our law presumes everyone to
be normal until proven otherwise. That is the position both at common law and
statute. The proviso to section 18 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] places the burden of proof squarely on the accused. It
reads:
“18 Degree and burden of proof in
criminal cases
(1)…,.
(2)…,.
(3)…,.
(4) Except where this Code, or any
other enactment, expressly imposes the burden of proof of any particular fact
or circumstance upon a person charged with a crime, once there is some evidence
before the court which raises a defence to the charge, whether or not the
evidence has been introduced by the accused, the burden shall rest upon the
prosecution to prove beyond a reasonable doubt that the defence does not apply:
Provided that where an accused
pleads that, at the time of the commission of a crime, he or she was suffering
from a mental disorder or defect as defined in section two hundred and
twenty-six, or a partial mental disorder or defect as defined in section two
hundred and seventeen, or acute mental or emotional stress, the burden shall
rest upon the accused to prove, on a balance of probabilities, that he or she
was suffering from such mental disorder or defect or acute mental or emotional
stress.”
Thus, the onus was on the accused
and her mother to establish, on a balance of probabilities, that at the time
she committed the acts constituting the offence she was suffering from a
disease of the mind rendering her incapable of appreciating that what she was
doing was wrong.
This they did not do.
On the contrary, she knew that what
she had done was wrong and was liable and willing to compensate the complainant
for the damage she had caused. She knew the exact amount of money she had on
her person and that it was insufficient to compensate the complainant. She also
knew that she could ask for help from her relatives to help her pay
reparations.
Case law establishes quite clearly
that what matters is the accused's mental state as at the time of commission
and not at any other time. In the case of Obert Nyamini Mapfumo v The
State AD–48–79 McDONALD
CJ quoted the trial court with approval and had this to say at page 1 of the
cyclostyled judgment:
“The appellant's mental state was
exhaustively investigated at the trial and the trial court made the following
finding on this aspect of the case, '…., the court considers that the most that
it can say consistently with the medical evidence is that there is a
possibility that the accused was suffering from hysterical dissociative
condition at the time of the shooting but I cannot put it higher than that. There is no evidence that the accused was
unaware of the nature and quality of his acts and that what he was doing was
wrong. Mr. Chidyausiku, who appeared at the trial and who now
appears in this appeal, has informed the court he feels unable to challenge
this finding in the light of the evidence led.”
Like what I have already indicated
above, the accused's answers to the magistrate's questions, while canvassing
the essential elements of the offence, established beyond question that the
accused knew the nature and quality of her conduct and that what she was doing
was wrong. She knew that she had been assaulted and she deliberately took a
conscious unlawful decision to retaliate by damaging the complainant's car.
When asked, she had an independent recollection of the details of her criminal
conduct at the material time. That cannot be the attributes of a person
suffering from a mental disease at the time of commission of the crime or
trial. There is nothing patently unusual about her conduct in this respect.
