S v Chiwaya (821 of 2022) [2022] ZWHHC 821 (18 November 2022)

1 HH 821-22 CRB 90/22 THE STATE versus FUNGAI CHIWAYA HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 25 October & 18 November 2022 Assessors Mr Mhandu Mr Kunaka Criminal Trial C. Mutimusakwa, for the applicant F. Chidawanyika, for the respondent MUTEVEDZI J: The accused person faces a charge of murder in contravention of s47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter the Criminal Code). The allegations against him are that on 9 May 2020 in Wenimbi, Marondera, Fungai Chiwaya unlawfully and intentionally caused the death of Laque Jonasi by striking him on the back of the neck with a machete or realising that there was a real risk or possibility that death may occur he persisted with his conduct despite the risk or possibility. Laque Jonasi died from the injuries sustained during the attack. The accused pleaded not guilty to the charge. He prayed for a verdict of not guilty because of insanity in terms of s29 (2) of the Mental Health Act [Chapter 15:12]. In summary his defence was that he does not remember what transpired on the day in question. Upon his arrest, he was detained at Chikurubi Psychiatric Unit. A forensic psychiatric nurse practitioner subsequently examined him and made the following findings: a. That at times he talked to himself, having auditory and visual hallucinations b. That he would have bouts of aggression at home and in the community c. That he suffers from what is called paranoid schizophrenia d. That he was not responsible for his actions at the time of commission of the alleged crime e. That he was put on mental illness medication which stabilised his condition and 2 HH 821-22 CRB 90/22 f. He was now able to comprehend and follow the proceedings The state opened its case by applying to tender the post mortem report which detailed what caused the deceased’s death. There was no opposition by the defence. The court duly admitted the report. The pathologist concluded that the deceased died as a result of hypovolemic shock, right neck vessel cutted (sic) and severe neck trauma. Various other documents were produced and admitted by consent. These included the accused’s confirmed warned and cautioned statement, the sketch plan which was drawn pursuant to indications made by the accused at the crime scene. More importantly, the state tendered a medical affidavit compiled by a forensic psychiatric nurse practitioner which spoke to the accused’s mental state at the time he committed the crime. The state also applied to have the evidence of witnesses Zvanyadza Chiwaya, Robson Kasiya, Manyika Gombera, Moreblessing Mhondiwa, Philip Mudzi and Vimai Raymond formally admitted into evidence in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. That evidence was duly admitted as it appeared in the summary of the state’s evidence. Thereafter no viva voce evidence was led. The state proceeded to close its case. In his defence, the accused chose to abide by his defence outline. He did not add anything to it. He did not call any witnesses to testify on his behalf. We should point from the onset, that virtually everything in this trial was common cause. It was accepted that the accused killed the deceased in the manner alleged in the state papers. It was admitted that he was mentally ill at the material time. In fact this case betrays a gap which the Prosecutor General’s office will need to address in order assist stakeholders in the criminal justice system. In cases where it is clear and the prosecution admits that the accused was mentally disordered or intellectually handicapped at the time he committed the offence, persistence with the prosecution of such a person may not be in the interests of justice. The barbarism and savagery with which the offence was committed, the manner of indications by the accused of how he committed the offence and the unequivocal medical evidence presented in court all point to the irrefutable fact that the accused’s mind was diseased at the time he committed this crime. The psychiatrist expert examined the accused person personally. He was also assisted by making reference to two other certificates by medical practitioners, medical notes, and clinical psychologist notes, social affidavits from the accused’s relatives and the state’s case papers in compiling his report. Paraphrased, his conclusion was that the accused had been unwell since 2020. He had abused cannabis for at least one year before that smoking the drug at least twice a day. He started dressing like members of a cult popularly known as 3 HH 821-22 CRB 90/22 Nyau dancers. He often drifted into delusional soliloquy, hearing abnormal voices and seeing abnormal visions. He would have bouts of aggression both at home and in the community. He made the finding that the accused suffered from paranoid schizophrenia. More importantly he concluded that the accused was mentally disordered at the time he committed the offence. It is on the basis of the above that I believe there is little benefit that can be derived from prosecuting such a person. The verdict is predictable if not inevitable. The prosecutor general has power to decline to prosecute such an accused on public policy grounds. Yet his constraint and apprehension may stem from the desire to have the court order any of the administrative processes which it is enjoined to make at the end of trials of this nature. The purpose and objective of the specified orders is to protect society by minimising the chances of the accused person reoffending. Our recommendation is that a balance must be struck between the competing interests indicated above. In this case, it is needless to point out the obvious that the accused was clearly not responsible for his actions at the time that he killed the deceased. We are accordingly constrained to do anything else other than to find that in terms of s29 (2) of the Mental Health Act the accused is not guilty of the offence of murder because of insanity. To regulate what happens in instances where a court returns the above verdict that law provides in s29 (2) as follows: 29 Procedure where person charged intellectually handicapped at time of committing offence is found mentally disordered or (2) If a judge or magistrate presiding over a criminal trial is satisfied from 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 to have a complete defence in terms of section 248 of the Criminal Law Code, the judge or magistrate shall return a special verdict to the effect that the accused person is not guilty because of insanity, and may— (a) order the accused person to be returned to prison for transfer to an institution or special institution for examination as to his mental state or for treatment: or (b) if the judge or magistrate considers that, had the accused person been convicted of the offence concerned, he would not have been sentenced to imprisonment without the option of a fine or to a fine exceeding level three, order— (i) the accused person to submit himself for examination and additionally, or alternatively, treatment in any institution or other place in terms of Part VI; or (ii) the accused person’s guardian, spouse or close relative to make an application for the person to be received for examination and additionally, or alternatively, treatment in any institution or place in terms of Part VII or Part VIII: 4 HH 821-22 CRB 90/22 and may give such orders as may be appropriate for the accused person’s release from custody for the purpose of such examination or treatment; or (c) if the judge or magistrate is satisfied that the accused person is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged, order his discharge and, where appropriate, his release from custody. S29 (2) (b) applies to offenders who would have been convicted of non-serious crimes. It is of no application to an offender like the accused in casu who was facing a capital offence. The options which remain available are therefore subparagraphs (a) and (c). In this case, the psychiatrist recommended that the court places the accused in the custody of his father Michael Chiwaya. That recommendation was obviously made without regard to the provisions of the law. An accused can only be so placed in the custody of a relative, guardian or spouse if the offence he committed is deemed non-serious. For purposes of protecting society against the accused reoffending it is important that the court gets medical assurances not only that the accused has recovered but that he has sufficiently recovered to minimise if not eliminate the chances of him committing the same or other offences. There aren’t any such assurances in this instance. The expert’s finding is simply that the accused is now of sound mind. It is not enough. Against that background, the court is left with no alternative but to order that: 1. The accused person shall be returned to prison for transfer to CHIKURUBI PSYCHIATRIC UNIT for treatment. National Prosecuting Authority- applicant’s legal practitioners Coghlan, Welsh and Guest- respondent’s legal practitioners 4