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HMT44-19 - NDIKIYANA MUGADHUYI vs THE STATE

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Murder-viz section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Gender Based Violence-viz murder.
Murder-viz gender-based violence.
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.
Murder-viz intention re establishment of mens rea.
Indictment-viz intention re establishment of mens rea.
Charge-viz intent re establishment of mens rea.
Procedural Law-viz rules of evidence re defences iro diminished mental capacity.
Procedural Law-viz defences re diminished capacity iro establishment of mens rea.
Procedural Law-viz defences re diminished mental responsibility iro establishment of intention.
Procedural Law-viz defences re diminished mental capacity iro insanity.
Procedural Law-viz rules of evidence re expert evidence iro psychiatric evaluation.
Indictment-viz accused persons lacking capacity to commit criminal offences re mentally challenged accused persons.
Charge-viz accused persons lacking capacity to commit an offence re mentally disordered accused persons.
Procedural Law-viz findings of fact re concessions between counsel iro Statement of Agreed Facts.
Procedural Law-viz findings of fact re agreements between counsel iro Statement of Agreed Facts.
Procedural Law-viz defence of diminished mental capacity re insanity iro section 29 of the Mental Health Act [Chapter 15:12].

Domestic Violence and Gender Based Violence


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

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


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

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


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

Indictment or Charge re: Charge Sheet, Framing of Charges, Essential Elements, Causation, Intention & Competent Verdict


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

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


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

Defence of Abandonment, Claim of Right, Mistake of Fact or Law and Establishment of Mens Rea or Intention


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

Direct and Circumstantial Evidence, Causation, Inferential Reasoning, Confessions & the Principle of Evidence Aliunde


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

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


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

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


The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

Criminal Trial

MWAYERA J: The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the state's contention that on and at Canlebury Farm Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face 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 the injuries from which Diana Sithole died.

Both defence and state counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned that at the time of commission of the offence the accused was mentally disordered.

The doctor further gave opinion that after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The state and defence counsel prepared a statement of agreed facts which outlined how the accused on the day in question, the fateful day assaulted the deceased on the head and face. From the summary and statement of agreed facts the attack was an unprovoked and horrendous one. That manner of attack also informed the state and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the state and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12]. The offence of murder which the accused is charged of consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention but the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly as prayed for by both the state and defence counsel we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended that the accused still requires further management and care and that both his parents are late, as such there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit or any other psychiatric unit for further management till released by a competent tribunal in terms of the law.


National Prosecuting Authority, state's legal practitioners

Mvere, Chikamhi and Mareanadzo, defence's legal practitioners

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