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HMT01-20 - STATE vs GEORGE PFUMBWA

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Procedural Law-viz rules of evidence re defences iro diminished mental capacity.
Procedural Law-viz defence of diminished mental responsibility re insanity iro section 29 of the Mental Health Act [Chapter 15:12].
Procedural Law-viz defences re diminished mental capacity re mental challenge iro section 29 of the Mental Health Act [Chapter 15:12].
Murder-viz section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Indictment-viz guilty plea re limited plea.
Charge-viz plea of guilty re limited plea.
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Indictment-viz guilty plea re limited plea iro Stated Case proceedings.
Charge-viz plea of guilty re limited plea iro Stated Case proceedings.
Domestic Violence-viz murder.
Murder-viz gender based violence.
Procedural Law-viz rules of evidence re expert evidence iro postmortem report.
Murder-viz cause of death re post-mortem report.
Procedural Law-viz rules of evidence re expert opinion iro psychiatric evaluation.
Indictment-viz capacity to commit criminal offences re mentally challenged accused persons.
Charge-viz capacity to commit crimes re mentally incapacitated accused persons.
Murder-viz intention re section 29 of the Mental Health Act [Chapter 15:12].
Procedural Law-viz rules of evidence re admissions iro unchallenged evidence.
Procedural Law-viz rules of evidence re admissions iro undisputed averments.
Procedural Law-viz rules of evidence re admissions iro uncontroverted submissions.

Domestic Violence and Gender Based Violence


The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

Indictment or Charge re: Persons Lacking Capacity to Commit Criminal Offences and the Presumption of Doli Incapax


The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

Indictment or Charge re: Plea of Guilty, Alteration of Pleas and Triable Issues Raised During Plea Recording


The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

Murder and Permissible or Competent Verdicts re: Approach, Intent, Motive, Corpse, Cause of Death & Inquest Proceedings


The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

Defence of Diminished Mental Responsibility or Diminished Capacity re: Substance Use, Intoxication and Insanity


The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court


The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

Corroborative Evidence re: Admissions, Unchallenged Evidence, Right to Examine Witnesses & Audi Alteram Partem Rule


The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements


The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

Criminal Trial - Section 29 Mental Health Act [Chapter 15:12]

MUZENDA J: The accused was charged with the crime of Murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] and the state alleged that during the period between 18 and 19 August 2018 and at Plot 47, Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an unidentified object intending to kill her, 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing deceased's death but qualified his admission by stating that he was mentally challenged when he committed the offence. We hence entered a plea of Not Guilty to the charge of murder.

The state and the defence produced a statement of agreed facts which was admitted by this court and marked Annexure “A”.

According to the statement of agreed facts, accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused, she was accused's wife. During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot. On 23 August 2018 Dr. Aisa Serrano Gomez carried not a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) hypovolemic shock;

(ii) severe haematoma in both thighs; and

(iii) multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze a psychiatrist formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out that accused is now fit to stand trial.

The state proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exh 1.

(ii) Post-mortem report, exh 2.

Having looked at the evidence led and exhibits produced by the state, and further looking at the statement of agreed facts we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act, [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit, until he is discharged by a competent authority.


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