S v DHONGI 1999 (2) ZLR 252 (H)

Flynote

Criminal procedure ” mental disorder ” accused mentally disordered at time killed another person ” circumstances not precluding self-defence ” whether special verdict should nonetheless be returned

Headnote

The accused was charged with murder. He had killed another person with an axe. There was medical and other evidence to show that he was mentally disordered at the time he killed the deceased. There were also indications that the accused may have acted in self-defence, which, had he not been mentally disordered, would have entitled him to an acquittal. The question arose whether a special verdict should be returned.

Held, that a special verdict should be returned if it is shown that the accused "did the act charged". In the case of murder, this meant not only the physical act of killing, but the fact of killing qualified by consciousness, intent and unlawfulness. Self-defence precluded unlawfulness. It is only where the accused escapes conviction on the basis of his criminal incapacity, arising out of mental disorder or defect, that the special verdict must be returned. The facts did not preclude self-defence, but the accused was a person who if released might be dangerous to others. Accordingly, he should be acquitted, but an order made under s27(3)(a)(ii) of the Mental Health Act, detaining him in an institution.