Criminal
Trial (MENTAL HEALTH ACT – SECTION 29)
MWAYERA
J:
The
accused was arraigned before the court on a charge of murder as
defined in section 47(1)(a) or (b) of the Criminal Law (Codification)
and Reform Act [Chapter
9:23].
The
State alleges that on 22 November 2013 and at Plot 41, Manda Chief
Makoni Rusape, the accused person unlawfully and with intent to kill
or realising that there was a real risk or possibility that his
conduct might cause death and continued to engage in that conduct
despite the risk or possibility struck Kelvin Mutambanuki several
times on the head using a steel hoe thereby causing severe injuries
from which the said Kelvin Mutambanuki died.
In
response to the charge the accused pointed out that he admitted what
happened but that it happened when he was mentally unstable. A plea
of not guilty was entered.
The
State and defence counsels advised that they had taken a position
informed by the nature of the accused's plea and the evidence of Dr
Walter Mangezi a psychiatrist. They took a position that we proceed
with the matter in terms of section 29 of the Mental Health Act
[Chapter
15:12].
A
Statement of Agreed Facts was tendered as exhibit 1 by consent.
It
was apparent from the statement of agreed facts that on 22 November
2013 at Plot 41 Manda Nyamukubva, Chief Makoni the accused who was
employed by the deceased fatally struck the deceased. The accused
used a steel hoe several times to strike the head and neck of the
deceased who sustained multiple injuries on the head and neck from
which he died.
It
is also clear from the statement of agreed facts that following the
arrest of the accused for the offence of murder, the accused was
examined by Dr Walter Mangezi who concluded that at the time of the
commission of the offence the accused was mentally discorded and thus
could not formulate the requisite mens
rea
to commit murder.
The
State and defence counsels, by consent, presented the affidavit of
evidence by Dr Walter Mangezi, photographs depicting deceased after
the fatal assault on head and neck, sketch plan by attending details,
post mortem report by Dr S. A Makande and certificate of weight of
hoe from Zimpost as exhibits 2-6 respectively.
Given
the common cause evidence presented and the circumstances of the
commission of the offence we agreed with the State and defence
counsels that the matter be handled in terms of the Mental Health Act
[Chapter
15:12].
The circumstances of the matter call for the return of a special
verdict of not guilty because of insanity.
In
view of the fact that the accused seems to have challenges in
sourcing medication when out of custody, and that he as given by both
defence and State counsel was picked from the bush for purposes of
his trial, it is imperative that he gets protection not only for his
benefit but for community at large.
It
is our considered view that leaving the accused roaming about and
staying in the bush without care, medication, protection and guidance
would occasion relapse. The thought of such violent attack as
occurred in the present case simply because of not administering
medication on a person is too ghastly and hazardous a risk to the
accused and community at large.
It
appears as submitted by both counsels the accused has no relative
willing to accept and assist him as such we find no justification in
discharging the accused in a manner tantamount to just throwing him
out without seeking to achieve the intended goal which would benefit
both accused and society.
The
accused still requires management and rehabilitation and it would be
improper to prematurely release him. We view institutionalisation of
the accused as an imperative and protective measure that will
guarantee the safety of the accused and community at large. This
position is regarded as appropriate when one holistically considers
the circumstances of this case as it is an administrative measure
which will enable release of the accused at the ripe and appropriate
time by a competent body or Health Review Tribunal as provided for in
the relevant Mental Health Act.
In
the premises, it is accordingly ordered that:
1.
The accused is not guilty because of insanity.
2.
The accused be returned to prison for transfer to Chikuribi
Psychiatric Unit or such other appropriate institutions for treatment
and management until discharged therefrom by a competent body.
National
Prosecuting Authority,
state's legal practitioners
Mvere
Chikamhi & Mareanadzo,
accused's legal practitioners
