S v GAMBANGA 1997 (2) ZLR 1 (H)

Flynote

Criminal law — defences — insanity — non-pathological incapacity of a temporary nature not amounting to a mental disorder — extent to which can be invoked as a defence to a charge of murder — diminished responsibility — whether c applicable to sentence only

Headnote

A state of diminished responsibility may result in total mental incapacity and may prevent or reduce a person's legal as well as moral liability. It does not only affect sentence; it may prevent the formation of mens rea. It may reduce the crime of murder to one of culpable homicide, or alter murder with a direct intent to murder with a constructive intent. It may provide extenuating circumstances or merely reduce sentence.

A non-pathological temporary incapacity may be less than total and may result in various degrees of loss of self-control. The extent of diminished responsibility which may be taken into account thus depends on the facts of each case.

The accused was charged with the murder of his wife. He had quarrelled with her over his unfounded suspicions that she was being unfaithful to him. She had been involved in a number of women's organizations and her activities frequently took her away from home. He had seen her being picked up by a man whom he believed to be her lover. He believed he had contracted a venereal disease as a result of her unfaithfulness. The accused and his wife went into the garage at their home to avoid letting their children hear the quarrel. There he took a pistol out of a tool box. He held it to her head and demanded to know the name of his wife's supposed lover. She said that a certain man had proposed love to her, whereupon he pulled the trigger. She died instantly. He claimed that he did not have the requisite mens rea for murder because he was suffering from acute emotional distress as a result of his wife's infidelity and his own long history of emotional instability. He was thus, he claimed, in a state of diminished responsibility. In any event, although he was admittedly negligent, the shooting was accidental.

Medical evidence was given, to the effect that the accused was under some emotional stress amounting to diminished responsibility. However, he was not mentally disordered so that a special verdict would be appropriate.

Held, that the circumstances were not such that the discharge of the pistol could be regarded as accidental.

Held, further, that whether or not the accused's suspicions were objectively correct, he subjectively believed them. Collectively they amounted to provocation, but not such as to wipe out his ability to control his actions. He knew what he was doing. Even though his ability to apply effective self-control was attenuated, he was still capable of forming mens rea. In any event, the defence of provocation could not succeed, because the court could not hold that a reasonable man in the same circumstances would have lost his self-control.

Held, further, that although the accused was suffering to some degree from diminished responsibility, it was a mild form which could not wipe out or reduce his legal responsibility.

Held, therefore, that the accused should be found guilty of murder with a constructive intent.