S v MASHUNGU 2013 (2) ZLR 1 (H)

Flynote

Criminal law — defences — diminished responsibility — not a complete defence — lack of criminal capacity due to mental disorder or defect — what must be shown — nature of disorder or defect — cause or duration of defect irrelevant — severe emotional and psychological stress — may deprive actor of criminal capacity — bipolar disorder — may remove criminal capacity

Headnote

"In a proper case . . . a state of diminished responsibility may result in total incapacity and may prevent or reduce the person's legal as well as moral responsibility" (dicta per Mubako J in S v Gambanga 1997 (2) ZLR 1 (H) at 7 applied).

Severe emotional and psychological stress may, in certain cases, deprive an individual of the capacity to appreciate the wrongfulness of his or her conduct or to act in accordance with such appreciation and, for this reason it will be sufficient to constitute a complete defence to criminal liability contemplated in s 227 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ("the Code"), which deals with mental disorder at the time of the commission of the offence.

Criminal capacity is a prerequisite for fault, be it negligence or intent, and without it a person cannot be guilty of an offence. Criminal capacity can be defined in terms of two legs, which are inquired into after it is determined whether the accused at the time of the commission of the offence suffered from any biological condition that could impact on his criminal capacity or if there was any other circumstance that could have had such an effect. The two legs which must be present and proven in order for a person to be held criminally capacitated are set out in s 218(1)(a) and (b) of the Code. The first is the cognitive ability or the ability to understand and appreciate the wrongfulness of the act. The second is the conative ability or the ability to act in accordance with this understanding.

In terms of s 227 of the Code, the fact that a person charged with a crime was suffering from a mental disorder or defect when he did or omitted to do anything which is an essential element of the crime charged is a complete defence to the charge if the mental disorder or defect made him (a) incapable of appreciating the nature of his conduct, or that his or her conduct was unlawful, or both; or (b) incapable, notwithstanding that he or she appreciated the nature of his or her conduct, or that his or her conduct was unlawful or both, of acting in accordance with such an appreciation. The cause or duration of the mental disorder or defect is immaterial.

Section 227 reinforces the subjective test for mens rea in specific intent crimes. A plea of diminished criminal capacity, where the evidence shows it, amounts to a claim that, due to overwhelming severe psychological and emotional stress which worked to deprive the accused of the capacity to appreciate the wrongfulness of his conduct, he could not, in that state, form the necessary capacity to act in accordance with the appreciation of the wrongfulness of his conduct.

Diminished responsibility, on the other hand, does not operate as a complete defence but only serves to mitigate sentence or reduce the crime from a serious one to a less serious one. This common law position is confirmed in s 218 of the Code.

Bipolar disorder is a condition which is reflected by severe mood swings between manic and depressive moods. A person in the manic phase would not be aware of his mental state or behaviour and may take high risk actions that may endanger himself or those around him without appreciating the effect of those actions. Bipolar mood disorder can be inherited. It can also be the result of underdeveloped ego which leads to loss of self-esteem later in life due to, possibly, the lack of consistent feedback from the mother or father. The condition may manifest itself in different ways, such as a feeling of hopelessness, worthlessness and helplessness. The patient may show psychotic features such as hallucinations and delusions of religiosity, presenting themselves as paranoia jealousy. The patient may indulge in self-injurious behaviour as a result of pre-occupation with thoughts of death.

Severe emotional and psychological stress may, in some cases, deprive an individual of the capacity to appreciate the wrongfulness of his conduct or to act in accordance with such an appreciation and, for this reason, it will be sufficient to constitute a complete defence to criminal liability as contemplated in s 227.