S v CHIWAMBUTSA 1987 (2) ZLR 59 (S)

Flynote

Criminal procedure — remittal — mental state of accused not properly investigated in trial court — error of judgment of legal representative in not calling available evidence — remittal ordered.

Headnote

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. This might have altered the opinion of the psychiatrists had they been aware of it.

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 representative will not normally justify such a course.

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 courts if psychiatrists were to examine accused persons with this in view.

The conviction and sentence were accordingly set aside and the case remitted for further evidence as to the appellant mental state when the crime was committed.