S v CHIKAMBA 2000 (2) ZLR 311 (H)

Flynote

Criminal procedure ” review ” court's powers on review ” alteration of verdict ” alteration from finding of guilty to one of not guilty by reason of insanity ” institutionalisation of accused following such verdict ” not an alteration or increase of sentence c previously passed

Headnote

The accused was charged with infanticide, alternatively concealment of birth. She was convicted of the latter, on the grounds that the body was not discovered. She was sentenced to a suspended term of imprisonment. The accused admitted killing and eating the baby. She claimed to be acting under the influence of a malign spirit. She was found to be suffering from a form of epilepsy which could be triggered by scenes of birth.

Held, that on the facts she should have been found to have killed the child.

Held, further, that a special verdict should have been returned under the Mental Health Act, that she was not guilty because of insanity. The court had a discretion as to whether to discharge her, require her to undergo treatment, or institutionalise her. This was a case where institutionalisation was appropriate.

Held, further, that institutionalisation, though more burdensome for the accused than the sentence actually passed, was not a sentence. There was therefore no obstacle, arising from the High Court's powers on review, to the substitution of the suspended sentence with an order of committal. The accused should be summoned to appear before the magistrate to show cause why she should not be institutionalised. At the remitted hearing, the court should receive such evidence, including psychiatric evidence, as is necessary.