S v NDZOMBANE 2014 (2) ZLR 197 (S)

Flynote

Evidence — expert evidence — value to be attached to — should not detract from court's own capabilities and responsibilities — evidence presented in affidavit form — when expert witness should be called to give oral evidence

Headnote

The appellant killed the deceased, his own brother, by decapitation with a sharpened axe. What remained unclear at the close of the defence case was what had motivated the appellant to commit such a gruesome murder. Unconvinced by the appellant's explanation for his conduct, the court ordered an examination of the appellant by two doctors in terms of the Mental Health Act [Chapter 15:12]. The two doctors, three months after the commission of the offence, found some evidence of mental defect and recommended that the appellant be referred to a psychiatrist. Some seven months later, the psychiatrist carried out her first of several assessments from which she concluded that the appellant was not labouring under any mental illness at the time of the commission of the offence. Her evidence was admitted in affidavit form. The appellant's mother submitted an affidavit to the psychiatrist, giving information about strange behaviour on the part of the appellant.

Held, that the apparently motiveless, odd and bizarre murder should have alerted the defence counsel, prosecution and the court — but more so the defence counsel — to the possibilities of mental or emotional fragility on the part of the appellant. While the court a quo did institute the procedures for the mental examination of the appellant, the final consideration of the psychiatric report still left a lot to be desired. However, the defence counsel woefully failed to heed the clanging alarm bells. He should have interviewed the appellant's family, friends, co-workers and former employers, in an attempt to discover whether the appellant had any history of strange behaviour. The appellant's mother's account was effectively a footnote in the psychiatrist's report.

Held, further, that it was necessary to hear viva voce evidence from the psychiatrist, from the mother of the appellant and from any other relevant person. The psychiatrist would have had to explain to the court the basis for her affirmative finding that from 2010 onwards the appellant no longer suffered from any mental illness, especially in the light of the fact that she accepted that the appellant had suffered from some "psychotic disorder" between 2007 and 2008.

Held, further, that s 278 of the Criminal Procedure and Evidence Act [Chapter 9:07] allows the production of medical reports from doctors in affidavit form. However, the court has the discretion in terms of s 280 to order that the doctor be summoned to give oral evidence at the trial. The court may also send written questions to the expert who is enjoined to reply thereto. The interrogation through oral testimony of expert evidence given on affidavit is necessary to avoid the error of treating such evidence as gospel truth or divine revelation.

Held, further, that expert opinion evidence is admitted to assist the court to reach a just decision by guiding the court and clarifying issues not within the court's general knowledge. It is not the mere opinion of the expert witness which is decisive, but the expert's ability to satisfy the court that, because of his or her special skills, training and experience, the reasons for the opinion expressed are acceptable. However, in the final analysis, the court itself must draw its own conclusions from the expert opinion, and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters. The expertise of a professional witness should not be elevated to such heights that sight is lost of the court's own capabilities and responsibilities in drawing inferences from the evidence. The court can only do this well if it requires the expert witness to give oral evidence in the clarification and elucidation of an affidavit that is otherwise technically dense and incomprehensible, contradictory or inadequate in all respects except the conclusion. A court errs when it merely adopts the conclusions of an expert report without exercising its mind on it by, for example, calling for oral testimony or drawing the necessary inferences from the evidence.