No. SC 99/05
Appeal No. 144/03
v THE STATE
COURT OF ZIMBABWE
CHEDA JA & MALABA JA
JUNE 23, 2005 & OCTOBER 16, 2006
J Remba, for the
for the respondent
JA: The appellant stabbed the two deceased persons, a mother and her
child, and killed them. He was convicted of murder
court accepted that there were extenuating circumstances and
sentenced him to twelve years on each count and ordered four years
imprisonment with labour of the second count to run concurrently with
the sentence on the first count.
The appellant applied for leave
to note his appeal in person against sentence only, but by the time
the appeal came for argument
he was legally represented and heads of
argument filed included argument against conviction as well.
issues raised for argument were as follows:
or not the appellant should have been convicted at all.
2. whether or not the appellant
should have been convicted of murder.
3. whether or not the court a
quo meted out an
of the background facts are common cause.
appellant lived with the first deceased as his wife for a few years.
They had domestic problems which resulted in the appellant
out of their residence and leaving the deceased with her son and a
younger child (the second deceased). The son, aged about
was not the appellants child.
the appellant was away, the first deceaseds mother came and spent
some days with her daughter and grandchildren. She would
sleep in a
kitchen next to the first deceaseds bedroom with the
appellant came to the residence on the night in question at about
midnight, entered the first deceaseds bedroom and stabbed
several times. She died as a result.
appellant also stabbed the second deceased, who was his own child,
and the child died. He was arrested, charged with murder,
appeal, not much was raised concerning this background. The thrust
of the appeal was on the issue of the alleged diminished
responsibility of the appellant at the time of the commission of the
Evidence of State Witnesses
evidence of the first deceaseds mother is that she heard the first
deceaseds door being kicked open, and she next heard
deceased calling out that the appellant was killing her.
woke up the first deceaseds son who was in the kitchen with her.
she confronted the appellant about his killing of the first deceased,
he replied in Shona by words to the effect Is she
dead?, Is she
walking away for a few steps, the appellant returned, grabbed the
young child, (the second deceased) who was with the grandmother
stabbed that child, killing her also.
about the appellants general conduct she said the appellant was
generally somebody who was not well and did not give
elders. She described him as not being normal because of that
behaviour and said he was not mentally normal. She said
not say that he was insane.
The evidence of Jeffrey
Phiri, the first deceaseds son Jeffrey, corroborates that of
his grandmother on most of the material
points. He added that when
his grandmother called upon him to wake up he took a hoe handle with
which he struck the appellant,
after realising that the appellant had
stabbed his mother. He returned to the kitchen where he, together
with his grandmother,
held onto the door and pushed it so that the
appellant could not gain entry into the kitchen.
appellant was holding a knife and threatened to attack Jeffrey.
said the appellant asked Is she dead? and then returned to the
bedroom where he stabbed the first deceased again several
said the appellant ran past him, snatched the baby (the second
deceased), who was in her grandmothers arms, and stabbed the
three times on the abdomen.
told the court that the first deceased and the appellant used to
fight, and this incident happened when they were about to go
so that the first deceased could get a peace order against the
also said that prior to this incident there was a time when he woke
up at night and found that the appellant was there and telling
first deceased that she would never reject him.
The Appellants Evidence
appellant said he went to drink with his friends on the night in
question. He said he drank strong alcohol which he was not
and felt very drunk.
went to the first deceaseds residence, got involved with her in an
argument, and she insulted him and grabbed his private parts.
then took a knife from on top of the wardrobe and stabbed the first
deceased. He said he did not intend to kill her.
admitted that he used to fight with the first deceased, but he later
said that was how they used to play. He admitted that the
deceased had caused his arrest.
said the first deceased and he had bought the knife to cut a cake on
the birth date of their child.
it was put to him that the so-called knife was not a knife but a
bayonet, he alleged he bought it from a second-hand shop and
know that it was a bayonet. He said he only saw the knife on two
should point out here that he had previously said they bought it with
many other knives.
his evidence, the appellant suggested that he got very angry after
his wife grabbed his private parts and he did not know what
is also common cause that after the murder, the appellant took rat
poison in an attempt to kill himself but he was taken to hospital
where he got treated and the attempted suicide was not successful.
Medical Evidence on
appellant claimed that he was not in his full senses at the time of
the murder. He said he was drunk, he was angry, he was
his wife, she was accusing him of having been with some prostitutes,
and he even alleged at some stage that when he got
to the house the
first deceased was with a man who pushed him over and bolted out of
of these allegations are not stated in his Defence Outline or his
evidence in-chief. Even his defence counsel did express
difficulty when it turned out that what appellant was telling the
court was contrary to the instructions he gave his counsel.
he sought to suggest that he did not know what he was doing, at times
he gave details which he could not have appreciated
if he had not
known what he was doing.
details were certainly inconsistent with a person who did not know
what he was doing.
Doctor Chikara stated in his
report that he examined the appellant twice after interviewing his
mother. He recorded what she told
him. On examining the appellant
himself, he reported that he found that his E.E.G.
was normal (my
doctor then recorded that, in his opinion, at the time of the alleged
offence, Chrispen was suffering from diminished responsibility.
He also said there was
evidence of unstable abnormal behaviour and tendency to violence due
to underlying suspiciousness
of a paranoid nature.
doctors opinion is not based on any physical examination of the
appellant immediately before or immediately after the incident.
is based on the history only of the appellants behaviour. It is
based mainly on the interview that he had with the appellants
mother. It is not supported by the factual evidence of what
happened at the time of the murders. There is no evidence which
to any strange conduct of the appellant immediately before or
after the murders that he committed.
if one accepts that the appellant had consumed alcohol, there is no
supportive evidence to suggest that he was so intoxicated
that he did
not appreciate what he was doing.
appellant clearly lied about having purchased the alleged knife to
cut a cake. The alleged knife was in fact a bayonet.
could not give a satisfactory explanation as to how he came into
possession of it. He even said he did not know that it was a
he suggested that it was on top of the wardrobe and he knew it was
kept there he was asked, and failed to explain, how he managed
retrieve it from the top of the wardrobe if the first deceased was
holding onto his private parts as he alleged. He even suggested
that because of his height he had to get onto a stoep, but could not
say how he could do so if the first deceased was holding him
appellants attempt to explain what happened betrays him. On the
one hand, he suggested that he did not know what happened
once he was
angered by his wife. On the other hand, he narrated what he says
happened when he got to the house, after walking to
the house while
did not explain where he got the rat poison which he took in an
attempt to kill himself.
cross-examination of the State witnesses, which was based on his
instructions to his legal practitioner, does not support the
that he had a black-out once he got angry.
defence outline also contradicts him concerning the events of that
he claims to have been provoked by his wife, he could not explain his
actions in grabbing the child from its grandmother
and stabbing it
three times. If he had acted on provocation, such provocation would
have been from his wife only and not the child.
suggested in his statement concerning the child, that he stabbed the
child because its mother used the child as a shield when he
stabbing her. This is contradicted by the evidence of the two
witnesses who said he grabbed the child from its grandmother
stabbed it. This was after he had already killed the mother.
follows that his defence of not knowing what he was doing is false
and must fail.
English Dictionary on
edited by Sir John Murray, LLD, Vol III, gives the following
definitions of diminished:
small, lessened, lowered in condition, weakened, lowered in
above definition shows that diminished responsibility only reduces
the level of responsibility but does not completely absolve
from his actions.
follows that where the court finds that the accused at the time of
the commission of the act was criminally responsible for the
that his capacity to appreciate its wrongfulness and then acts in
accordance with an appreciation of its wrongfulness was
reason of mental illness or mental defect, the court may take the
fact of such diminished responsibility into account
confirms that the borderline between criminal responsibility and
criminal non-responsibility is not an absolute one, but a question
person may suffer from a mental illness yet nevertheless be able to
appreciate the wrongfulness of his conduct and act in accordance
that appreciation. See Criminal
Edition by CR Snyman, pp 165-166.
above comments would appear to be very generous in relation to the
appellant in this case.
than the medical report and the interview by Doctor Chikara, there is
nothing to point at the appellant having been under a
abnormality at the time of the commission of the crime.
should be borne in mind that medical reports suggesting that a person
may have been suffering from a state of diminished responsibility
the time of the commission of the offence need to be supported by
some other evidence. On their own, such reports may not be
decision as to whether there is diminished responsibility is to be
made by the court and not just by medical experts.
Walton v The Queen
1978(1) All ER 542, the House of Lords made it clear that where
medical reports of diminished responsibility are not supported by
some other facts from the evidence the jury is entitled to reject the
claim of diminished responsibility if there are other factors
justify that rejection.
held as follows:
determining whether a defence of diminished responsibility had been
established the jury were seeking to ascertain whether at the
the killing the accused was suffering from a state of mind bordering
on but not amounting to insanity. That task was to
be approached in
a broad common sense way.
jury were bound to consider not only the medical evidence but the
whole of the evidence as to the facts and circumstances of the
including the nature of the killing, the conduct of the accused
before, at the time of and after the killing and any history
since the jury might properly refuse to accept any medical evidence,
they were entitled to consider the quality and weight
evidence. Having regard to the quality and weight of the medical
evidence in the instant case, the jury had been entitled
to regard it
as not entirely convincing and not indicative of a mental state in
the appellant bordering on insanity; and in view
of the other
evidence before them, as to the appellants conduct before, during
and after the killing, had been entitled to refuse
to accept the
psychiatrists opinion that the appellants mental condition
satisfied the statutory definition of diminished responsibility.
jury had therefore been entitled to conclude that on a balance of
probabilities the plea of diminished responsibility had not
established. Accordingly the appeal would be dismissed.
the present case, the circumstances, and the conduct of the appellant
immediately before and immediately after the killing do
not seem to
support the defence of diminished responsibility.
The trial court,
nevertheless found that the appellant suffered from diminished
responsibility, I do not agree with that finding
on the facts.
even if that is correct, it is not part of our law that such finding
absolves the appellant and entitles him to an acquittal.
Oneill v The State SC
232/95 the Supreme Court, after deciding that the appellant suffered
from diminished responsibility, set aside the death sentence
imprisonment was substituted.
1910 (1) ZLR it was held that diminished responsibility was
sufficient to establish extenuating circumstances only.
In both cases the verdict of
guilty of murder was still upheld.
this case the trial court did the same. It took into account its
finding on diminished responsibility as an extenuating circumstance,
and imposed a term of imprisonment.
Not withstanding the
misdirection on the finding of diminished responsibility the verdict
of guilty of murder was still correct.
is no merit in the appeal and it is dismissed.
JA: I agree.
JA: I agree.