S v Karomo (546 of 2022) [2022] ZWHHC 546 (8 August 2022)

1 HH 546-22 CRB HRE R376/21 STATE versus GODFREY KAROMO HIGH COURT OF ZIMBABWE MAKOMO J HARARE, 8 August 2022 Criminal Review MAKOMO J: It is often tempting for some magistrates to jump at the opportunity to adopt the plea procedure provided for by s 271(2)(b) of the Criminal Procedure & Evidence Act (“the CP&E Act”) at the slightest indication by an accused person that he may be admitting to the offence. This is so especially considering the heavy workloads magistrates have to deal with each day. When such opportunity to quickly ‘finalise’ a matter arises, it becomes appealing to adopt the procedure. This matter came before me for automatic review in terms of s 57 of the Magistrates Court Act [Chapter 7:06]. The facts thereof and how it was handled provides an opportunity for me to provide guidance to magistrates on how to handle cases involving persons suffering from mental disorders. It is a case of aggravated indecent assault which was dealt with by a regional magistrate at Harare Magistrates Court. The brief facts which are largely common cause are that the accused is a 45 year old man. The unfortunate complainant is a 7 year old girl. The accused and complainant’s parents reside in the same neighbourhood. The accused and complainant’s father actually befriended each other. On the first day of October 2021 the accused visited the complainant’s parents’ residence and found her sleeping on the couch. For unknown reason, the accused drew another couch close to the one the complainant was sleeping on. Thereafter he removed the complaint’s pant and inserted his finger into her vagina. This awakened the complainant as a result of the pain she had felt. She told him that she was going to report him. As fate would have it, at that point the complainant’s friend entered the room. He attempted to insert his finger into her vagina too but she outsprinted him to safety. Accused allegedly implored the complainant not tell anyone. What is queer however is that when all this was happening the complainant’s mother was sleeping in another room. The complainant 2 HH 546-22 CRB HRE R376/21 only reported to her what had happened when she later woke up. Nothing turns on this rather suspicious piece of evidence. The accused was arrested and arraigned for contravening s 66 (1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused pleaded guilty after his right to legal representation was properly explained to him. The charge and its essential elements were also properly canvassed leading to a verdict of guilty being entered. The accused was sentenced to 10 years imprisonment of which 2 years were suspended on the usual condition of good behaviour. It is what followed in mitigation that has given rise to the impropriety of the conviction and the sentence imposed. The following was the exchange in mitigation as recorded:  “Aged 45 years old.  Not yet married.  I have no children.  I am a musician.  I have never been paid though I have sent my song to the radio.  No money on person.  No savings.  No assets of value.  I am a psychiatric patient and have been on medication for 25 years. (underlining for emphasis)  My medical documents were taken by my relatives who wanted to buy some medication for me. They came and took them while I was in prison. That is all.  Why did you commit the offence?  I missed my injections for some time because I had no money. (underlining for emphasis) Q. Why did you commit the offence? A. It just happened. PROSECUTOR In light of the submissions by accused if he may be examined by 2 doctors. Q. Why should he be examined if he has been on treatment for 25 years, why not simply bring the documents. PROSECUTOR: The warrant from prisons shows that he is a mental patient and is taking some medication.” The trial was postponed to another date to enable accused to bring his medical cards. On the resumed date the accused could not produce the cards explaining that he was unable to contact his relatives but was willing that the matter proceeds regardless. Again, the following exchange with the magistrate ensued: “Q. Are you still suffering from mental illness? A. I am taking my medication and I am now fine. (underlining for emphasis) Q. At the time of the offence you were also taking your medication? A. Yes Q. So were you suffering from a mental illness when you committed the offence since you were on treatment? 3 HH 546-22 CRB HRE R376/21 A. I was able to comprehend and I knew what was happening. I was not suffering from the mental illness because I was on treatment. Q. And you knew that what you were doing was a criminal offence? A. Yes. Q. Why did you do that? A. It just happened, in life it happens.” On 21 January 2022 I addressed a query through my assistant to the magistrate in the following terms: “In mitigation, the accused told the magistrate that he had committed the offence because he had missed his injections for a while due to lack of money. Thereafter, the prosecutor moved for the medical examination of the accused to get expert evidence on the issue. Further, the state outline evokes in the mind of a judicial officer suspicion that the accused may not have been in his lucid interval when the offence was committed considering he attempted to do the same to the complainant’s friend when she arrived at the scene. (a) The question is, was it sufficient for the trial magistrate to conclude on a bare question to the accused whether he was labouring under a medical condition at the time and disregard expert medical evidence as requested by the prosecutor? (b) At the time of the trial he may have regained his lucidity but that may not have been the case at the time of commission of the offence. In light of this and (a) above, was the conviction proper? (c) May the learned trial magistrate comment.” The above query promptly elicited a response from the magistrate who justified the procedure she adopted in the following way: “When the State applied for the accused to be examined by two doctors in terms of the Mental Health Act, it became apparent to me that the State were invoking the provisions of section 192 of the Criminal Procedure and Evidence Act, (Chapter 9:07). The import of that section is that it obliged the trial court to deal with the accused person in terms of the Mental Health Act, (Chapter 15:12), where: i. It is alleged or appears the accused is not of sound mind or, ii. If a defence is set up that the accused was not criminally responsible on the grounds of mental disorder or defect for the act or omission alleged to constitute the offence with which he is charged. From the exchange, the court was convinced that the accused was of sound mind and that the accused was not raising the defence of mental disorder because he clearly told the court that he is mentally sound and was not raising the defence of mental disorder at the time of the offence for the court to invoke the provisions of section 192 of the Criminal Procedure and Evidence Act [Chapter 9:07]. However, on second reflection, after reading the review minute I am of the view that over and above the enquiry which I made, expert opinion would have enhanced my finding. Since it is common cause that the accused is a mental patient. Therefore, in terms of section 192 of the Criminal Procedure and Evidence Act, (Chapter 9:07) as read with section 28 of the Mental Health Act, (Chapter 15:12) I was supposed to stop the proceedings, adjourn the matter and order the accused person to be examined to ascertain the mental state of the accused.” I will revert to the above explanation by the magistrate later. 4 HH 546-22 CRB HRE R376/21 The last quoted exchange between the magistrate and the accused is both quite comical and suspicious. What a convenient way of ‘finalising’ a matter by forcing a plea! How it happened that at the last sitting the accused freely told the court that he had committed the offence because he had not taken his medication for some time because he had no money but was now saying, with alacrity, that he was lucid enough even to appreciate that what he was doing constituted a criminal offence? The initial emphasis in the initial exchange that he had skipped medication “for some time” is telling. As a layman he was raising a defence of mental disorder in terms of  s 227 of the Criminal Law (Cod ification & Reform) Act [Chapter 9:23] in that the offence had been committed during a mental lapse because of skipping medication. His relatives only took his cards to buy him medication when he had already been arrested and lodged in prison. Further, the answer by accused that he was “now fine” and the court could proceed should have alerted the court of the accused’s implicit insistence on his defence. It meant that there was a time he was not “fine” but had recovered after his relatives had bought him the medication while in prison. The manner in which the magistrate proceeded raises two fundamental issues of criminal procedure which behoved the magistrate to strictly apply those principles once the facts above arose. Failure to observe the respective procedures constitute a gross irregularity leading to the conviction and sentence being set aside on review. These relate to, firstly, how to properly canvass essential elements and duty to enter a Not Guilty plea immediately when it occurs to the magistrate that the accused maybe having a defence to the offence, secondly, the mandatory application of the Mental Health Act [ Chapter 15:12] (“the MHA”) where the facts or proceedings in court suggest mental illness on the part of accused. THE PLEA PROCEDURE This is usually a convenient truncated form of trial adopted where the accused is admitting the charge. Fair trial requires that the magistrate satisfies himself/herself that the plea is indeed understandingly being made and the accused has no defence to the offence. Where the court entertains the possibility that the accused may be having a defence or that the plea is not being understandingly made, it must change the accused’s plea to that of Not Guilty and ask the State to proceed and prove the accused’s guilt beyond reasonable doubt. In terms of s 86(3)(e) of the Constitution of Zimbabwe 2013 (“the Constitution”, the right to a fair trial cannot be limited in any way including by a court. The Constitution is the supreme law and applies both vertically and horizontally binding the state and all its agents. Section 272 of the Criminal Procedure & Evidence Act reads: 5 HH 546-22 CRB HRE R376/21 “272 Procedure where there is doubt in relation to plea of guilty If the court, at any stage of the proceedings in terms of section two hundred and seventy-one and before sentence is passed— (a) is in doubt whether the accused is in law guilty of the offence to which he has pleaded guilty; or (b) is not satisfied that the accused has admitted or correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based; or (c) is not satisfied that the accused has no valid defence to the charge; the court shall record a plea of not guilty and require the prosecution to proceed with the trial: …” The provision uses the mandatory “shall” meaning that as soon as any of the instances of doubt listed in paragraphs (a) to (c), the court must record a plea of not guilty and require the prosecution to proceed to trial. The court has no discretion to proceed. I have no doubt that the majority, if not all, magistrates are aware of this elementary procedure. What is disturbing is the seeming desire to disregard the provision and turn a blind eye to it to “force pleas”. Ultimately however, there is no convenience in the practice since such convictions stand to be set aside on review as it is a clear violation of the accused’s inalienable right to a fair trial apart from it being an irregularity. Sections 271(2)(b) and 272 of Criminal Procedure & Evidence Act are some of the legislative provisions that give effect to accused’s right to fair trial guaranteed by the Constitution. Further, s 271(2)(b) of the Criminal Procedure & Evidence Act prescribes an elaborate procedure to record the plea which is designed to ensure a fair trial to the accused and which must be adhered to without deviation. The correct manner of recording the plea has been discussed in so many case authorities. There is no need for me to repeat on the subject that is now trite suffice to state that the purpose of explaining facts and canvassing of essential elements is not to test the accused person's credibility; to trap or force him into admissions in an endeavour to quickly dispose of a matter regardless, but is simply to determine precisely what it is that he is admitting to . This is achieved by putting across simplified questions which are easily understood by the accused as a layperson. Words loaded with difficult legal concepts must be eschewed. In the instant case the magistrate in her above-quoted exchanges with the accused she asked the accused whether he confirmed that when he committed the offence he was not suffering from a “mental illness”. This is despite the fact that mental illness is widely defined in the Mental Health Act that it cannot be expected of a layperson to understand such complicated legal terms. This was disapproved of on numerous occasions in this jurisdiction that the position is trite and no authority is 6 HH 546-22 CRB HRE R376/21 required. Should this however be necessary I refer to the following cases; S v Dube 1988 (2 ) ZLR 385 (SC); S v Bizwick 1987 (2) ZLR 83 (SC); S v Tachiona 1994 (2 ) ZLR 402 (H); S v Matimbe & Ors 1984 (1) ZLR 283 (H); S v Milanzi & Anor 1998(2) ZLR 212 (H). PROCEDURE IN TERMS OF THE MENTAL HEALTH ACT The trial magistrate explained that she believed that when the prosecutor requested that the accused be examined by two doctors, she was being asked to invoke s 192 of the Criminal Procedure & Evidence Act, which she did. She has however conceded that, with the benefit of hindsight, she should have ordered that the accused be examined. In my view, the magistrate failed to comply with both s 192 of Criminal Procedure & Evidence Act and the Mental Health Act. Section 192 of Criminal Procedure & Evidence Act reads: “192 Trial of mentally disordered or defective persons If at any time after the commencement of any criminal trial it is alleged or appears that the accused is not of sound mind, or if on such a trial the defence is set up that the accused was not criminally responsible on the ground of mental disorder or defect for the act or omission alleged to constitute the offence with which he is charged, he shall be dealt with in the manner provided by the Mental Health Act [Chapter 15:06].” Section 192 of the Criminal Procedure & Evidence Act does not itself prescribe a procedure to be followed when either of the two scenarios mentioned do occur. It is merely permissive of the relevant provision of the Mental Health Act to be invoked and directs the trial court to adopt the procedure provided by that provision. The section makes it mandatory that where either the accused is of unsound mind during trial (the present) or the defence is set up that he was not criminally liable at the time of commission of the offence (the past) by reason of mental disorder, the court must proceed to invoke the relevant provision of the Mental Health Act. Failure to do so constitutes a gross irregularity, especially where the accused is likely to be sentenced to a term of imprisonment or some other serious punishment. The trial magistrate dealt only with the first scenario. She purported to be inquiring from the accused whether he appreciated when he was committing the offence that his act was criminal. It is absurd that a person who was indeed mentally inflicted could validly claim to appreciate what he was doing during mental illness and confirm his liability. If he indeed claimed so, that was a better reason to have him examined! Why would people then take the trouble to have an insane person treated if those people can lucidly differentiate between right and wrong and are able to maneuver the normal course of human affairs with prudent 7 HH 546-22 CRB HRE R376/21 moderation like any other? Would there be any difference between the normal and the mentally unsound? In S v Taanorwa 1987 (1) ZLR 63 (SC) @ 65, the court lamented and cautioned against the practice by psychiatrists of relying on the accused person’s information only for purposes of determining whether at the time of commission of the offence the accused was suffering from a mental disorder. This is more so for a judge or magistrate who is usually bereft of important information such as accused’s full medical history, how he behaved after the act, general stories of the accused’s past behaviours, e.t.c. It has long been recognized that the accused himself may normally be unaware of what happened and the strangeness of his actions and is usually keen to conceal or deny that he is mentally afflicted. It is therefore an irony that the court scrounged for proof of mental abnormality from the one least capable of providing it and often most anxious to deny it. The magistrate did not take caution to differentiate the period when accused was mentally ill which is when the offence was committed and the period of plea recording when he had regained his lucidity. Further, the magistrate was not qualified to arrogate to herself the expertise of a psychiatry doctor or designated psychiatric nurse, especially in light of the common cause facts that accused had been on medication for a staggering 25 years; that he alleged that he had not taken this medication for some time when the offence took place; that his prison warrant confirmed that he was a mental patient; and that he only resumed his medication when already lodged in remand prison. It is only those experts who can give an opinion on the mental state of an accused AT THE TIME of commission of an offence after properly examining and evaluating the accused’s behaviour. In S v Chiwambutsa 1987 (2) ZLR 59 (SC) at 61E the court emphasized this point by stating: “I feel that had the two psychiatrists interviewed Tabetha Chiwambutsa and RSM Nyakwima they might have formed different opinions. They might have come to a different conclusion. I cannot suggest that the appellant suffers from some mental disability   or   a diminished sense of responsibility. I am not qualified to give an opinion on that. However, that possibility was not eliminated. It remains. What the courts require in cases such as this is a medical examination which not only meets the requirements of the Mental Health Act but goes beyond establishing that the person is or is not "mentally disordered or defective". (underlining for emphasis) See also S v Taanorwa (Supra). The words “…. on consideration of the medical evidence and such other evidence as he thinks fit ” as used in ss 28 (4), 27 (3) and 26 (4) of the Mental Health Act must be interpreted to mean that the judicial officer must always consider medical evidence before 8 HH 546-22 CRB HRE R376/21 coming to the conclusion on the subject. The question of whether one is or was mentally unsound cannot be left to surmise, conjecture or some other opaque conclusions by unqualified persons; it must be proved by medical science. CONCLUSION Once confronted with the circumstances as discussed and the request from the prosecutor, the magistrate was obligated to alter the plea to one of Not Guilty and thereafter invoke the provisions of the Mental Health Act and order the examination of the accused. This was particularly important in that in the event of the doctors confirming that he was mentally disordered at the time of commission of the offence, the court was obliged to proceed in terms of s 29(2) of the Mental Health Act by returning a special verdict to the effect that the accused person is not guilty because of insanity. The failure by the magistrate to alter the plea and order medical examination of the accused constitute a gross irregularity. The conviction of the accused and the imposition of 10 years prison sentence suspended on conditions must be set aside. Nine months of the sentence has already been served which constitutes prejudice to the accused. DISPOSITION In the premises, IT IS ORDERED THAT: 1. The conviction of the accused under Harare CRB R376/21 and the imposition of 10 years prison sentence suspended on conditions be and are hereby set aside. 2. The matter is remitted back to the Magistrate’s court for trial de novo before a different magistrate. 3. In the event of a conviction, the sentence must not exceed the sentence originally imposed and the 9 months already served to be taken into account as part of that sentence. 4. This judgment to be brought to the Chief Magistrate’s attention for purposes of training. MAKOMO J:……………………………………….. 9 HH 546-22 CRB HRE R376/21 MUNGWARI J: I agree ……………………………