The accused was charged and convicted of the offence of
assault as defined in section 89(1) of the Criminal Law (Codification and
Reform) Act.
From the record of proceedings, it is clear that the
accused was mentally challenged; not only at the time he allegedly committed
the offence but right until the time he was tried and convicted in the lower
court.
For purposes of clarity, it is imperative that I reproduce
the relevant parts of the court record in the lower court. The following
captures the proceedings in the lower court as captured by the presiding
magistrate:
“Charge put to the accused, explained.
Plea –
The complainant has her own case…,. She destroyed my target (sic)
She was doing prostitution at the shops with the police.
I kicked her.
Plea of NG entered.
State outline read.
By PP
The accused was examined by a psychiatric who concluded
that accused committed the offence when he was mentally challenged. The State
applies to tender in the medical affidavit.
Court accepts the affidavit as exhibit l.
The accused seems not to be appreciating the proceedings.
His mental capacity seems to be challenged.
The State applies that accused be committed for treatment.
Accused was asked to plead to the charge by the court.
Instead of pleading he was just explaining incoherent things before the court.
It is clear that his statements are not clear and he does not appreciate the
court proceedings. It will be impossible to conduct a trial with the accused
that state.
The medical affidavit clearly states that accused is
mentally disturbed to such an extent that he should not be held responsible for
his actions.
Accordingly, a special verdict is returned, accused is
found not guilty and acquitted due to insanity…,.”
It is the whole approach adopted by both the prosecutor and
the learned magistrate that has caught my attention.
The record of proceedings, as captured, shows that there
was a genuine but grievous error in the handling of the case that involved the accused
who was mentally and intellectually challenged at the time he appeared in
court.
The first elementary mistake that both the magistrate and
the prosecutor made was to put a mentally challenged person in the dock for
purposes of conducting a trial.
It is incompetent to purport to put on trial a mentally
disordered or intellectually handicapped person. If that person has to be tried
he or she must first be certified to have recovered and fit to stand
trial. Recourse in this regard must be
had to the psychiatrist's report which should be an integral part of the State
papers.
The approach which the learned magistrate ought to have
adopted in this case was to invoke the provisions as outlined in section 28(9)
of the Mental Health Act [Chapter 15:12].
The relevant section is couched to precisely deal with the
situation which the learned magistrate found herself in. The record suggests
that the accused was not in a position to understand or conduct his defence
because of his mental disorder. For clarity's sake, section 28(9) of the Mental
Health Act [Chapter 15:12] reads as follows:
“9. If the judge or magistrate is unable to conclude
whether or not the person concerned is mentally disordered or intellectually
handicapped or whether he would be able to understand the nature of any
criminal proceedings or properly conduct his defence, the judge or magistrate
may issue and order –
(a) Directing that the person be removed to an institution
and detained there for examination;
(b) Directing the release of the patient, for examination
for such period and subject to such conditions as may be specified in the
order, for the purpose of examination of his mental state.”
I need to point out though that generally, and in view of
the unpredictability of mentally challenged persons, preference should be given
to an order made in terms of (a) supra because it reassures the court of the
safety of members of the public from the conduct of the mentally sick accused
person. These are the options which were open to the learned magistrate as
opposed to proceeding to give a verdict against him - before even hearing
evidence from the State.
This brings me to another error which was committed by the
lower court in this case.
Where a mentally challenged person is certified to be fit
to stand trial, the trial assumes its natural course; the hearing is conducted
in the same manner as if the accused were not mentally challenged. Evidence
must be led in the normal manner to assist the presiding officer to arrive at
an informed verdict. It is only when all the evidence has been led that the
magistrate can then pronounce a verdict; which verdict will be informed by the
evidence gathered. A special verdict in terms of section 29 of the Mental
Health Act [Chapter 15:12] is only pronounced once the magistrate has been
satisfied that indeed the accused committed the offence and that when he did so
he was mentally disordered or intellectually handicapped to the extent that he
could not possibly be held to be responsible for his conduct.
It is clear that the proceedings in the lower court did not
comply with the provisions of the Mental Health Act and the only recourse to
this court is to set aside the proceedings and order that the lower court
complies with the Act in question.
Consequently, it is ordered as follows:
(a) That the proceedings be and are hereby quashed.
(b) That the magistrate be and is hereby directed to recall
the accused and refer him for treatment to a special institution.
(c) That the accused be tried only upon being certified
to be fit to stand trial.
