Criminal
Trial (MENTAL HEALTH ACT – SECTION 29)
MWAYERA
J:
The
accused, a known psychiatric patient struck the deceased, her sister,
an also known psychiatric patient. The accused struck the deceased
all over the body using a wooden stick thereby causing head injuries
from which the deceased died as per the post mortem report tendered
by consent of counsels as exhibit 3.
The
offence occurred on the 19th
of December 2016 at House Number 7708, Area 16, Dangamvura, Mutare.
The
State and defence counsels came up with a statement of agreed facts
tendered as exhibit 1 by consent. It was apparent from the statement
of agreed facts that the respective counsels sought for the matter to
be dealt with in terms of section 29 of the Mental Health Act
[Chapter
15:12].
This
was occasioned by the fact that there are no factual disputes in this
case.
The
accused was mentally ill and could thus not have the requisite mens
rea
to commit the crime of murder. The offence requires both the
actus reas and
mens
rea
to be proved.
The
accused, is a known psychiatric patient as confirmed by a specialist,
Dr P Mhaka (psychiatrist). The affidavit of evidence from the doctor
shows that the accused's mental disorder challenges set in in 2008
and that at the time of commission of offence she was suffering from
psychotic disorder. She, from 2008, had been treated for the mental
condition at Mutare Provincial Hospital. On the day of the commission
of the offence the psychosis made her not to appreciate the
wrongfulness of her conduct.
The
accused was taken up for treatment after the fatal attack on her
sister and after administration of medication for mental disorder she
was certified, by Dr Mhaka exhibit 2(a), fit and able to stand trial.
It
is apparent from the common cause aspects and the statement of agreed
facts that there is no doubt that when the accused fatally struck the
deceased she was suffering from mental illness thus negating her
ability to formulate the requisite intention to commit murder as
defined in section 47 of the Criminal Law (Codification and Reform)
Act [Chapter
9:23].
The law provides in regulating the criminal liability of the mentally
ill in section 29(2) of the Mental Health Act. It states:
“If
a Judge or Magistrate presiding over a criminal trial is satisfied
from the evidence including medical evidence, given at the trial that
the accused person did the act constituting the offence charged or
any other offence of which he may be convicted on the charge, but
that when he did the act he was mentally disordered or intellectually
handicapped so as not to be responsible for the act, the Judge or
Magistrate shall return a special verdict to the effect that the
accused person is not guilty because of insanity.”
In
this case having regard to the undisputed evidence before the court
it has been made clear that the accused was suffering from mental
disorder at the time of the commission of the offence and as such she
cannot at law be held responsible for the offence of murder. In her
circumstances, it is appropriate for the court to return a special
verdict that the accused is not guilty because of insanity; see S
v Pretty Matunga HH
23/2013 and see also S
v Khumalo
HB 61/02.
The
State counsel and defence counsel addressed us on the fate of the
accused after the special verdict. We are indebted to both counsels
for efforts made in contacting and bringing in to court some of the
accused's relatives. It was apparent from the submissions that
accused was viewed as requiring further treatment and management for
not only her safety but her Grade 3 child, relatives and the
community at large.
We
viewed the administrative institutionalisation as necessary for the
benefit of the accused and community as it will enable constant
medical attention and the accused will then in due course be released
by a suitable tribunal in terms of the law.
Accordingly
it is ordered that:
1.
The accused is found not guilty because of insanity.
2.
The accused be returned to Chikurubi Psychiatric Unit or any such
institution for the treatment and management until released therefrom
by a competent body or health tribunal in terms of the law.
National
Prosecuting Authority,
State's legal practitioners
Maunga
Maanda & Partners,
accused's legal practitioners
