THE State V Shepherd Mushure

### Preamble
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HB 191/19
HCAR 152/19
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THE STATE

Versus

SHEPHERD MUSHURE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 19 DECEMBER 2019

Criminal Review

TAKUVA J:	This matter was referred to me by the Regional Magistrate, Gokwe in terms of section 58 (3) of the Magistrates Court Act (Chapter 7:10).

Upon receipt of this record, I caused a warrant of liberation to be issued with concurrence of my brother MAKONESE J,.

The accused, a 37 year old employee of Gokwe District Hospital was charged with contravening section 67 (a) (i) of the Criminal Law (Codification and Reform) Act (Chapter 9:23), “indecent assault” in that on 15th  day of December 2018 and at Gokwe new rank, the accused unlawfully and with indecent intent lifted complainant’s skirt, touched her buttocks and fondled her breast, knowing that Moderate Tshuma had not consented to this act or realising that there was a real risk or possibility that she might not have consented.

The accused pleaded not guilty but was convicted after a full trial.  After mitigation, the prosecutor produced two documents.  The first is a withdrawal affidavit by the complainant.  The relevant portion gives the reason for withdrawing the case in the following terms:

“Because I gathered that he sometimes is affected by evil spirits which cause him to act abnormally at times …”

The court then asked the prosecutor to explain the purpose of the withdrawal affidavit.  The prosecutor indicated that the State had not intended to withdraw the matter but wanted that fact to be noted as a “mitigatory” factor.  The second document was a letter authored by Dr A. Mashoko.  Its contents are as follows:

“Re: Letter to confirm Shepherd Anesu Mushure’s mental condition

This letter serves to inform you that Mr Mushure Shepherd Anesu I.D. 59-049681 R 23 is a mental patient with bipolar affective disorder and also he is on medication for the past years last reviewed in December and he is on FD 25mg MI monthly, Haloperidol 5mg BD x 1 month PO and Cebormazapine x 200mg noct x 1 P O.

We hope this letter will be of assistance.”

The letter was addressed to the “Magistrate, Gokwe”

Apparently, the court was not amused by the production of this letter as evidenced by the following exchange between the court and the prosecutor:

“Q	-	The State has tendered the letter from Dr Mashoko what is its factor?

A         -	That accused had mental problems in the past.  Custodial sentence may be heavy

Q	-	At whose instance was it prepared?

A	-	At the instance of the accused’s relative

Q	-	Does it not signify interference with the administration of justice?

A	-	I am not sure if the court holds this differently

Q         -	Why is the State allowing litigants to direct a letter to the court as it is the State which handed the letter to the court?

A         -	I apologise I thought it was to assist the court in knowing about the condition of accused.” (my emphasis)

After this exchange the court sentenced the accused to 15 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition accused does not within that period commit any offence involving an act of violence or indecent or sexual nature for which if convicted will be sentenced to imprisonment without the option of a fine.

The scrutinizing Regional Magistrate’s memo to the Registrar reads in part:

“…  The record of proceedings shows that the accused person indirectly raised the defence of mental disorder or defect during defence case, at the time he was being cross examined by the prosecutor.  The following exchange took place between the prosecutor and the accused person.

Q	-	Did you do that intentionally?

A	-	I was of ill health

Q	-	What (do you) mean when say ill health?

A	-	At times I do things I don’t intend to do

Q	-	Why not say that in your defence outline?

A	-	I did not know that it was vital for me to mention it.

It is also clear from the record of proceedings that after conviction but before sentence the prosecutor produced a minute authored by Doctor A, Mashoko, the acting Medical Officer to the effect that the accused person is a mental patient with Bipolar effective disorder and that he is on treatment for the same for the past years.

From the foregoing, I am of the view that the proceedings are not in accordance with real and substantial justice.”

It is clear from the record that after the disclosure of this information, no inquiry was made to ascertain what the unrepresented accused meant by saying he was of ill health at the time he committed the offence.  The trial court adopted the view that “it is incompetent at law to commit an accused after conviction as the purpose and intent of committing an offender is to enable him to stand trial.”

This in my view is a misdirection in that it was irregular  and incompetent at law for the trial magistrate to proceed to pass sentence after the prosecutor produced a report showing that the accused was a mental patient on treatment.  The trial court expressed disquiet at the fact that the evidence was produced by the prosecutor.  The court said, “It was irregular for the State Counsel or prosecutor to usurp the onus of proof in respect of defence of insanity which rested on the accused and prove accused’s mental status on an accused he was prosecuting.”

I take the view that, there is nothing irregular in what the prosecutor did in that the source of the information and who produces it before the court is irrelevant.  That evidence can come from State or defence witnesses or from accused’s relatives or any other source.  What is critical is that a court should not dismiss that information off hand and proceed as if nothing had happened.  The trial court was required to adjourn the proceedings and inquire into accused’s person’s mental state by directing two medical practitioners to examine the accused person in terms of section 192 of the Criminal Procedure and Evidence Act (Chapter 9:07) as read with section 28(2) and (3) of the Mental Health Act (Chapter 13:12) in order to determine the accused’s mental capacity at the time he committed the offence.  This is necessary because mental disorder at the time of commission of an offence is a complete defence in terms of s227 of the Criminal Law (Codification and Reform) Act.

Further, in the event that the medical evidence established that the accused person was mentally disordered or intellectually handicapped at the time he committed that offence, the trial magistrate was obliged to send the record to this Court for review for appropriate action to be taken.  It is also clear from the provisions of s192 and s28 supra that such an inquiry can be done at any stage of the proceedings even after conviction.  Section 192 of the Criminal procedure and Evidence Act provides:

“192.	Trial of mentally disordered or defective persons

If at any time after the commencement of any criminal trial it is alleged or appears that the accused is not of sound mind, or if on such a trial the defence is set up that the accused was not criminally responsible on the ground of mental disorder or defect for the act or omission alleged to constitute the offence with which he is charged, he shall be dealt with in the manner provided by the Mental Health Act (Chapter 15:06). (my emphasis)

The first point to note is that the inquiry can be carried out at “any time”.  Secondly once it is alleged or appears or such a defence is set up, it becomes peremptory that he be dealt with in terms of the Mental Health Act.  The use of the word “shall” means the court’s discretion has been taken away.  Similarly section 28(2) of the Mental Health Act contains the phrase “at any time during trial”.  See S v Magorosi 1999 (2) SA 938; S v M 1987 (3 SA 887.

Closer home, our Supreme Court in S v Chiwambutsa 1987 (2) ZLR 59 SC set aside the conviction and sentence on appeal and remitted  the case for further evidence as to the appellant’s mental state at the time the crime was committed.  In that case, the appellant had been convicted of murder and sentenced to death for an apparently irrational killing.  Although  medical evidence that he was not certifiable under the Mental Health Act 1976 had been led in the form of affidavits from two psychiatrists at the trial, this was not helpful and there was evidence available as to his family history which suggested mental instability, which evidence the appellant’s counsel had not seen fit to place before the trial court.

It was held that there was a sufficiently strong case for re-opening the matter on the question of the appellant’s mental state to warrant a remittal despite the general rule that an error of judgment on the part of a legal practitioner will not normally justify such a course.

It was held further, that even though an accused person may not be certifiable under the Mental Health Act, his mentality and the possibility of his suffering from diminished responsibility are very important factors, particularly in a murder case to enable the court to decide on the appropriate sentence.  It would be helpful to the court if psychiatrists were to examine accused persons with this in view.

In casu, the magistrate was supposed to have sought guidance of expert psychiatric evidence before convicting and or sentencing the accused.

In light of the above, I make the following order:

Both conviction and sentence be and are hereby set aside.

Prior to the re-hearing of this matter, a full examination of the accused be made in terms of section 28(2) of the Mental Health Act with a view to determining as precisely as possible what his mental state was when he committed the crime, and in particular whether he could be regarded as a man suffering from some mental disorder or diminished sense of responsibility having regard to the new evidence deposed in the affidavit of Dr A. Mashoko.

Leave be and is hereby given to both the State and the defence to lead any further evidence relevant to the issue of the accused’s mental state.

This matter is remitted to the Magistrates Court for the purpose of receiving the aforementioned further evidence and of deciding afresh upon the matter of conviction and sentence in the light thereof.

Kabasa J ………………………………… I agree