S v Mandiko (836 of 2022) [2022] ZWHHC 836 (18 November 2022)

1 HH 836-22 CRB 95/22 THE STATE and RIFIAS MANDIKO HIGH COURT OF ZIMBABWE MUTEVEDZI J HARARE, 9 & 18 November 2022 Assessors Mr Chimonyo Mr Barwa Criminal Trial Ms V Ngoma for the applicant Ms F Kachara for the respondent MUTEVEDZI J: Rifias Mandiko, (hereinafter the accused), a suspected mental patient detained at Chikurubi Maximum Psychiatric Unit, is accused of killing Tapiwa Alhwisi Nduna(the deceased). Prosecution alleges that in that mental institution the accused unlawfully and with intention to kill or realising that there was a real risk or possibility that his conduct may cause death and continuing to engage in that conduct despite the risk or possibility, the accused caused the death of the deceased by striking him on the head and face several times with a hoe. The assault caused injuries which led to the deceased’s death. In his defence the accused argued that at the time of the alleged commission of the offence, he was admitted at the psychiatric section of Chikurubi prison suffering from mental illness. He remained so detained even after the commission of the crime. He alleged that he did not remember the events which occurred on the fateful night. He therefore prayed for a verdict of not guilty because of insanity in terms of s 29(2) of the Mental Health act [Chapter 15:07] (the Act). The state did not contest the defence’s argument that the accused was mentally disordered or intellectually handicapped at the material time. The court has noted with concern that in the majority of cases involving mental patients, most prosecutors and legal practitioners barely appreciate the procedures prescribed in the Act which must be followed in the conduct of trials involving mental patients. In the past we have resorted to postponing matters to give counsel an opportunity to acquaint with the necessary provisions. That appears to have done 2 HH 836-22 CRB 95/22 very little to mitigate the problem. In this case, although the prosecutor was clearly abreast of the relevant procedure the court had to literally hold counsel’s hand to ensure that the administration of justice was not compromised. Counsel’s dedication to defend the accused was unquestionable. She is clearly not incompetent. The court understood her plight and that she is not alone in that predicament. In the majority of murder cases heard in this court, counsel invariably appear on a pro deo basis. The allocation of matters to legal practitioners under the pro deo system does not take into account a legal practitioner’s interest or competencies in criminal law. Yet the criminal law is debatably one of the least exciting branches of law. It is not an exaggeration that some legal practitioners actually feel horrified by defending people accused of violent crime no matter the circumstances. Others simply have no interest in it. Unfortunately we are made to understand that the allocation of cases for pro deo representation is indiscriminate. If there is any objectivity behind it, it is simply that some alphabetical order of sorts is followed. A significant number of legal practitioners’ first practical encounter with the criminal law is to defend an accused facing a capital crime with the danger of being sentenced to death if convicted. That is not ideal. More can be done. The issue however is beyond the court’s jurisdiction. In the circumstances, we can do no more than recommend that the issues of legal aid be relooked at with a view to giving full effect to the requirement of s70 of the Constitution which generally speaks to fair trial rights and particularly subsection (1) (e) which accords an accused person the right to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result. In the meantime the court can only attempt to streamline and explain the procedures. This judgment is therefore partly intended to achieve that objective. From the start, I must confess that the court understands the frustration of counsel where it requires them to go through the motions of trial in instances such as this one, where both the state and the defence agree that the accused was afflicted with a mental illness at the material time. It certainly may have been convenient if there was a way, to truncate the proceedings. As will be illustrated later, the provisions of s 29(2) however appear to suggest that there is little room if any for the adoption of a summary procedure. The starting point is perhaps to point out that there are two main procedures which are provided for under the Mental Health Act. The first procedure is provided for under s 28. It is couched as follows: 3 HH 836-22 CRB 95/22 “28 Procedure where person found mentally disordered or intellectually handicapped during preparatory examination or trial (2) If, at any time during a preparatory examination against, or trial of, any person— (a) it appears to the judge or magistrate presiding at the preparatory examination or trial that the person is mentally disordered or intellectually handicapped; or (b) a report in terms of the proviso to subsection (1) of section twenty-seven is received by the judge or magistrate presiding at the preparatory examination or trial that the person appears to be mentally disordered or intellectually handicapped; the judge or magistrate shall inquire into that person’s mental state. (3) For the purposes of inquiring into a person’s mental state in terms of subsection (2), the judge or magistrate may— (a) adjourn the preparatory examination or trial for such period, not exceeding fourteen days, as he thinks fit and remand the person to the custody of the officer in charge of a prison; and (b) direct two medical practitioners to examine the person and inquire into his mental state and, after such examination, the medical practitioners shall certify in writing in the prescribed form as to the person’s mental state: Provided that if only one medical practitioner is available, the judge or magistrate may direct a psychiatric nurse practitioner to examine the person concerned, inquire into his mental state and provide the second certificate required by this paragraph.” As can be discerned from the provision, the procedure under s 28(2) is intended to cover those instances where before or during trial, there is a suspicion or danger that the accused person is mentally disordered or intellectually handicapped. If that were to be the case, the mischief which the statute seeks to deal with is to prevent a court from proceeding with a trial in circumstances where because of mental affliction, an accused does not comprehend the proceedings and or is unable to properly conduct his defence. That scenario speaks to the overall right to a fair trial enshrined in s 70 of the Constitution. Where the judge or magistrate is satisfied that such is the case, the trial does not and cannot proceed. The court adopts the summary procedure of committing the accused to a mental institution for treatment. The procedure allows the judicial officer to conduct an inquiry into the mental state of the accused. The ways in which that inquiry is carried out are prescribed by the section. They are that: i. The trial must be adjourned for a period not in excess of 14 days. The accused during that time is remanded to the custody of the officer in charge of a prison ii. The court makes an order directing that two medical practitioners must examine and inquire into the accused’s mental state iii. The medical practitioners must set out their findings in writing in the prescribed form iv. Where it is not possible for the examination to be carried out by two medical practitioners, the court can direct that the second examination be conducted by a psychiatric nurse practitioner 4 HH 836-22 CRB 95/22 When the reports are submitted and the medical experts have certified that the accused is mentally disordered or intellectually handicapped they make a recommendation on whether the accused is fit or not fit to stand trial. In instances, where the accused is deemed fit to stand trial and capable of understanding the proceedings, his or her trial commences and proceeds as any other. Where however he/she is not the court commits him/her to an institution or proceeds in any of the various ways provided. The above procedure is fairly straightforward and causes little if any strife. What is more complex is the procedure under s 29(2). The section provides as follows: “29 Procedure where person charged is found mentally disordered or intellectually handicapped at time of committing offence (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” The above provision is intended to cover situations where an accused person alleges that he was mentally disordered or intellectually handicapped at the time that he or she committed the offence. In other words, the accused will be alleging that at the material time, he was suffering from mental illness. If he was and has still not recovered from that problem, the procedure under s 28(2) covers him/her. S 29(2) applies where the accused has sufficiently recovered from mental illness and is fit to stand trial but his defence is that he was mentally disordered at the time of commission of the offence. The differences between this section and s 28(2) stem from the wording of the two sections. Whilst under s28 the judge/magistrate must satisfy themselves as to the mental state of an accused through an inquiry, under s 29(2) the court must be satisfied of that state from evidence, including medical evidence, given at the trial. It follows therefore that there must be a trial of one kind or another. The adduction of evidence in a court of law can only take one or the other of the acceptable forms recognised at law. It can be by affidavit, statement, report or by oral testimony. It is therefore not for the state to simply agree with the accused that he was mentally ill at the material time. Both the prosecutor and the accused or his counsel must avail evidence which convinces the court of that fact. I have previously stated that more often than not the matter comes to trial because the state and the defence are not in agreement that the accused was mentally ill at time he allegedly committed the offence. See the case of S v 5 HH 836-22 CRB 95/22 Fungayi Chiwaya HH 821/22. The task becomes even more daunting for the defence under those circumstances. The accused is required to prove, on a balance of probabilities, that he was mentally ill at the relevant time. The trial must commence following the normal course of criminal trials. The State leads its evidence and it closes its case. The defence case opens with a thrust of leading evidence which tends to show that at the material time, the accused’s mind was diseased. That evidence must necessarily include medical evidence. In other words it must include evidence from medical experts capable of giving evidence outside the knowledge of the court in relation to accused’s mental state. There can be nothing summary about that process. The same procedure is followed, where for one reason or another prosecution acknowledges that the accused was mentally ill at the relevant time but still wishes him/her prosecuted. That desire may be informed by the state’s quest to have the court impose the restrains that are attendant upon an acquittal in terms of s 29(2). A court acquitting an accused through that procedure is obligated to attach certain measures to ensure that the accused’s opportunity to reoffend is minimised to the fullest extent possible. Thus the same procedure followed in ordinary trials must also be adhered to. Where this is the case, the shortening of proceedings is achieved through the curtailment measures provided in the Criminal Procedure and Evidence Act such as resort to formal admissions of evidence in terms of s 314 because the evidence of witnesses is largely not contested. In this case, all the issues were common cause. The deceased must have died a very painful death at the hands of a colleague whose mind was no doubt corrupted by disease. The accused woke up in the middle of the night, took a hoe that he had earlier illegally taken into the cell he shared with several others. He ordered his cell mates to be quiet as he approached the deceased where he was sleeping. He savagely butchered him with the hoe. Even after he was done he still threatened to deal with any of his cell mates who dared try to assist the deceased. Very cold bloodedly he killed the deceased. Doctor Oley Mayedo, the pathologist who conducted the post mortem to determine the cause of the deceased’s death concluded that he died as a result of brain injury, multiple skull bone fractures and severe head trauma. Tonderai Tanda and Brighton Chitsa are both prison officers who were in charge of the accused and other inmates. They found the deceased lifeless body in the cell the next morning after the murder. The accused had earlier nonchalantly narrated to Tonderai Tanda that the 6 HH 836-22 CRB 95/22 deceased was not feeling well and could not come out with the rest of the inmates. The evidence of the two witnesses supported the assertion that the accused was mentally ill. The accused was after the commission of the offence, examined by doctors Patience Mavunganidze and Walter Mangezi. Both of them are psychiatry experts. Dr. Mavunganidze noted that the accused experienced mental disorder whilst detained at the psychiatric unit because of shortage of the medication he was required to take. He suffered visual and auditory hallucinations as well as paranoid delusions which resulted in him being excessively suspicious. Those afflictions prevented him from appreciating the wrongfulness of his actions. She concluded that in her opinion, the accused was mentally disordered at the time he committed the offence. The examination was conducted on 14 October 2019. Doctor Mangezi’s examination concentrated on the accused’s collateral history. He interviewed the accused’s sister who advised that Rifias was diagnosed with a condition which caused him blackouts and falling to the ground accompanied by jerking. He was in form one then. In 2000 he started experiencing episodes of talking to himself and being physically aggressive. The accused also has a sister who is mentally disordered. He also came to the conclusion that the accused was mentally disordered at the material time. Dr. Mangezi’s examination was dated 1 July 2022. From the above evidence, it cannot be doubted that the accused was mentally sick at the time committed the offence in question. He is in terms of s 29(2) of the Act, accordingly found not guilty because of insanity. The doctor who last examined him recommended that the accused must take his medication daily in order to avoid a relapse. He did not give any assurances that there is no danger that he will commit further crimes. On that basis, the option to release him into the custody of his guardian or to release him unconditionally is not viable. Against that background, the court orders that: 1. The accused person shall be returned to CHIKURUBI PRISONPSYCHIATRIC UNIT for treatment. National Prosecuting Authority- State’s legal practitioners Scanlen and Holderness- accused’s legal practitioners 6