S v Jokonya HH 116-09

KUDYA J & ASSESSORS:

The accused person was charged with the murder of Chipo Muyaya. It was alleged that on
29 January 2006 at Tienga village, Chief Svosve in the Wedza communal area he killed the
deceased by striking her on the head with a stone
causing injuries from which she died on 6 February 2006.

In his plea the accused person stated that he did not know what was happening at the
time in question, as he was suffering from a mental disorder. We entered a plea of not guilty.
The State did not call any witnesses. It moved, in terms of s 314 of the Criminal Procedure
and Evidence Act [Cap 9:07], for the admission into evidence of the testimonies of the nine
witnesses captured in the summary of state case. Three affidavits were produced by
consent. These were exh 1, the psychiatric report compiled by Dr Dickson Chibanda on 22
April 2009; exh 2, the post-mortem report of 9 February 2006 complied by Dr Masokovere
and exh 3, the medical affidavit of Dr Joka on the examination of the deceased on 1
February 2006. The State failed to produce the weapon used to inflict the injury which
caused the death of the deceased.

The accused person testified and called the evidence of his cousin Yonnah Mazenge
and the psychiatrist, Dr Chibanda.

The evidence that was led on how the deceased received the fatal injuries was common
cause. Yonnah told us that the accused suffered from mental illness for the first time in 1998
when he was in Form 1. He missed school during the second and third terms of that year
while receiving treatment from a traditional healer. He relapsed in December 2005 at a
military recruitment camp in Wedza. He deserted the camp for his rural home in Wedza. At
home, he joined others to weed the crops. He stopped everyone from weeding intimating
that he would weed the whole field by himself that night. Thereafter he ran into the bush,
broke a branch of a tree which he alleged was his prophetic rod. The accused exhibited
uncontrollable and excessive strength. He was taken to Mount St. Mary’s hospital for mental
treatment by his brother and sister. He ran away and started scavenging for food in dust bins
at Wedza growth point. He went back to his communal home where everyone deserted the
homestead in fear of him. He then disappeared. He injured the deceased during the time
that they were looking for him. She located him after his arrest.

The evidence of Lydia Warikandwa, the deceased’s daughter set out how the deceased was
injured. The accused arrived at their homestead on 29 January 2006 at around 4 pm. He
intimated his desire to kill five people and drink their blood. The deceased’s attempts to
make conversation were rebuffed. It dawned on the mother and child that the accused was
mentally disordered. They left their homestead to look for firewood, but he followed them and
grabbed hold of the deceased by her left arm. A struggle ensued. Lydia called for help from
Remigious and Plaxedes Sengudzwa. Remigious was assaulted by the accused person as
he struggled to rescue the deceased. The accused shouted at him that he was a goblin that
had been sent by God. The accused easily threw Plaxedes to the ground. The deceased
managed to escape to her kitchen hut wherein she locked herself. Undeterred the accused
threw several stones into the hut through an open window. The deceased cried out in agony
from inside the hut. The accused then left. In the hut the deceased was bleeding from the
head. There was a big stone that was blood stained in the hut.

On 30 January 2006 the deceased went to Wedza police station where she was referred to
Wedza hospital where she was referred to Harare hospital. At Harare hospital she was
attended by Dr Joka who observed that she had a laceration on the head which he sutured
on 1 February 2006 and discharged her. She returned to her communal home on 2 February
2006.

The deceased continued to complain of painful headaches. She died on 6 February 2006.
The pathologist noted in exh 2 that she had sustained a blunt trauma on the right parietal
area. He observed a depressed skull fracture of the right parietal bone and subdural
haemorrhage and concluded that death was due to intracranial haemorrhage arising from
the head injury.

Taurai Mupawaenda, a policeman, arrested the accused person on 30 January 2006 after
he surrendered himself at the police station. He failed to record a warned and cautioned
statement from him as he was incoherent. Sergeant Marowa retrieved the big stone that
caused the injury and ferried the body of the deceased to Marondera hospital mortuary.
While the weapon that caused the injury was not produced for us to determine whether
subjective foresight of death could be attributed to the accused person, we are satisfied that
death was occasioned by the injury that was inflicted on the deceased by the accused
person.

In the absence of the stone and taking into account the manner in which death occurred, we
are not satisfied that the accused possessed the necessary constructive intention to cause
death.

The evidence at hand indicated that he indiscriminately threw the stones into the hut where
the deceased had sought refuge. It appeared that one of the stones managed to hit the
deceased on the right side of her head close to the ear. The accused left the scene after the
deceased cried out that she had been injured. She went to Harare Hospital where the doctor
wrongly diagnosed that the injury was not life threatening. Death occurred 8 days later. We
find these facts consistent with an objective appreciation that death could result rather the
existence of a subjective foresight that death would result. The facts reveal that the accused
negligently caused the death of the deceased. In our view his actions would have given rise
to a conviction of culpable homicide rather than murder.

The psychiatrist testified. He confirmed the contents of his report exh 1. He referred to
collateral history recorded in the reception order, the magistrate’s report and two medical
reports compiled by two doctors and the State outline. He noted from the collateral sources
that the accused person was mentally disordered at the time he inflicted the injury. His
opinion was justified by the evidence of Yonnah, Lydia and the arresting detail Taurai
Mupawaenda.

When he examined the accused person he observed that he had responded well to
medication and did not exhibit symptoms of psychopathology. He was no longer
experiencing both auditory and visual hallucinations. He had good thought and speech
processes and interacted well with other inmates. He certified him fit for trial.
In his oral testimony he stated that the accused person was still on medication and would
need to remain on medication for upwards of a year. He was receiving a weekly injection of
200 milligrams of chlorpromazine and a monthly dose of modicate. The medicate remained
in his blood stream for a period of 6 weeks and was administered to those patients who were
at risk of defaulting in taking medication. He emphasized that the accused would relapse if
he stopped taking medication. He would recommend the accused’s release to his family
members who were prepared to regularly bring him to Harare Psychiatric Hospital for
medication and review.

In their oral submissions both the State and defence counsel were agreed that the accused
person lacked the mental intention to commit murder by reason of the mental disorder that
afflicted him. We agree that he did not possess the mens rea to commit the crime of culpable
homicide that we would have found him guilty of had he not been suffering from a mental
disorder. In terms of s 29(2) of the Mental Health Act [Cap 15:12], we find the accused
person did acts which would amount to culpable homicide but when he did so he was
mentally disordered or intellectually handicapped to such an extent that he was not at law
responsible for his actions.

We accordingly enter a special verdict of Not Guilty because of insanity.

KUDYA J:
Sentence
Mr Nyakunika submitted that I should release the accused into the care of Yonnah who is
prepared to take him to Harare Psychiatric Hospital for treatment and review. Ms
Tapfumaneyi, submitted that he be returned to a special institution for treatment. I have the
discretion on how to sentence the accused person. The three courses of action that I may
take are set out in paras (a), (b) and (c) of subs 2 of s 29 of the Mental Health Act.
Paragraph (c) allows me to order the release of an accused person who has recovered. It is
not applicable to the accused person who still requires intensive medication and
management at a psychiatric institution. Paragraph (b) does not apply as he would not have
been sentenced to a fine for culpable homicide arising from an assault. Even if a fine was
suitable, it would have been more than level 3, which at present is equivalent to US$20-00.

The only viable option that remains is para (a). The accused person still requires
examination and continued treatment at a special institution. He remains a danger to himself
and others if he defaults medication. He is assured of continued medication in a special
institution rather than at home, where the risk of default cannot be ruled out. I will order his
return to custody for transfer to a special institution for treatment. I have in mind Chikurumbi
Hospital Extension, which was declared a place in lieu of special institution by General
Notice No. 51/2000, published in the Government Gazette of 18 February 2000.

Accordingly, it is ordered that:

1. The accused is not guilty of culpable homicide because he was mentally disordered or
intellectually handicapped at the time he committed the offence.

2. The accused shall be returned to prison for transfer to Chikurumbi Hospital Extension
for treatment.