Introduction

Accused persons who are found to be mentally disordered or intellectually handicapped, either when they committed the alleged crime or when they are to stand trial for a crime, cannot be treated in the same way as persons who are sane, and generally speaking they have to be dealt with under the Mental Health Act [Chapter 15:12].

There are five situations in which the problem of dealing with mentally disordered or intellectually handicapped persons may be encountered:

1. a person who appears to be mentally disordered is arrested by the police;
2. an accused person is awaiting trial and it appears to the authorities that he or she may be mentally disordered or intellectually handicapped;
3. after a trial has begun, it appears to the court that the accused person is or may be mentally disordered or intellectually handicapped;
4. after an accused person has been convicted, it appears that the accused person may be mentally disordered or intellectually handicapped;
5. evidence led at the trial shows that the accused person was mentally disordered or intellectually handicapped at the time the crime was committed, though he is now sane.

Dealing with each in turn:

Police powers on arrest of mentally disordered or intellectually handicapped person

If a person who appears to be mentally disordered or intellectually handicapped is arrested for a petty crime such as shouting or screaming in a public place, a police officer can apply to a magistrate for a reception order under section 4 of the Mental Health Act [Chapter 15:12].  The application must be accompanied by an affidavit in which the applicant states that he or she believes the person concerned to be mentally disordered and the grounds for that belief.  A reception order is an order issued by a magistrate or a judge (usually a magistrate) and directing that the person in respect of whom it is issued should be removed to and detained in an institution.  On receipt of the application the magistrate must get the person examined by two medical practitioners, one of whom should be a government medical practitioner, and if the magistrate is satisfied from the certificates of the practitioners that the person is mentally disordered or intellectually handicapped and a danger to himself or others, the magistrate may issue a reception order committing the person to an institution.  Once a reception order is issued, the person is detained in the institution for up to six weeks where he or she is examined and treated under the Mental Health Act [Chapter 15:12].

Alternatively, a police officer may make what is called an urgency application under section 11 of the Mental Health Act [Chapter 15:12].  Under this procedure, the police officer obtains a certificate from a medical practitioner or a psychiatric nurse practitioner indicating that the person is mentally disordered or intellectually handicapped and, on the basis of that certificate and an affidavit from the applicant, the person is received into a “suitable place” (usually a hospital or similar institution).  The person in charge of the “suitable place” must notify a magistrate within 24 hours of the person’s admission, and thereafter the magistrate must proceed in the same way as if an application had been made for a reception order.

This procedure is particularly suitable for keeping mentally disordered people who commit petty crimes out of the criminal courts.  They can be given treatment rather than punishment.

Mental illness disclosed before trial

If it appears to the Prosecutor-General, a public prosecutor or a person in charge of a prison or a police lock-up that a person who is being detained there pending trial is mentally disordered or intellectually handicapped, he or she must report it to a magistrate of the province where the person is being detained.  If the trial has already begun, the report must be made to the judge or magistrate presiding at the trial.  There is no reason why such a report should not be made by a defence lawyer, if he or she considers his or her detained client is mentally disordered or intellectually handicapped.

A magistrate to whom such a report is made must, within 24 hours, direct two medical practitioners (or one medical practitioner and a psychiatric nurse) to examine the accused person and certify his or her mental state.  In practice, the magistrate will ask the superintendent of the prison where the person is detained to arrange for such examination.  If the accused person is on remand, the case will have to be remanded for long enough to allow the examination to take place — but not for longer than two weeks at a time.

The magistrate will consider the medical certificates when they have been prepared and, if he or she is satisfied that the accused person is mentally disordered or intellectually handicapped and would not be able to understand the nature of any criminal proceedings or to conduct his defence properly, he must order the accused person to be detained in an institution (or in a special institution if the medical practitioners have certified that the accused is a danger to others).  If the accused person was being detained for a petty crime (i.e. if the magistrate considers that he would not receive a sentence of imprisonment or a fine of more than level 3) the magistrate must stay the criminal proceedings and either order the accused person to submit himself to medical treatment or order the accused’s guardian or close relative to apply for the accused to be received into an institution for treatment as a civil patient.

The concern at this stage is whether the accused person is so mentally disordered or intellectually handicapped as to be unable to understand the nature of any criminal proceedings or to conduct his defence.  Note that amnesia in respect of the facts and circumstances of the crime with which the accused is charged does not in itself render him unfit to stand trial.

Mental illness disclosed during trial

1.  Mental disorder rendering accused unfit to stand trial

If, after a trial has commenced, the accused person appears to the presiding judge or magistrate to be mentally disordered or intellectually handicapped or if the judge or magistrate receives a report to that effect from the prosecutor or the person in charge of the place where the accused is detained, the judge or magistrate may adjourn the proceedings for up to 14 days and remand the accused person in custody so that his mental condition may be investigated.  The judge or magistrate will direct two medical practitioners (or, if two are not available, one medical practitioner and one psychiatric nurse) to examine the accused and prepare certificates as to his mental state.

If, after considering the medical certificates and hearing any other evidence he or she considers necessary, including oral evidence from the medical personnel, the judge or magistrate considers the accused person to be so mentally disordered or intellectually handicapped as to be unable to understand the nature of the proceedings or to conduct his defence properly, he or she must record that fact, and then must do one or other of the following:

• issue an order directing that the accused be removed to an institution and detained there;
• if the judge or magistrate considers that the accused would be a danger to others and a medical certificate by a designated medical practitioner so recommends, order the accused to be detained in a special institution;
• If the judge or magistrate considers that the crime for which the accused person is being charged will not result in imprisonment without the option of a fine or a fine of more than level 3, order the proceedings to be stayed and either order the accused person to submit himself to medical treatment or order the accused’s guardian or close relative to apply for the accused to be received into an institution for treatment as a civil patient.

Where a magistrate orders the detention of the accused, the order has the effect of a reception order and is subject to confirmation by a judge.

If after considering the medical reports and other evidence the judge or magistrate is not able to come to a conclusion about the accused person’s mental state, he or she may order that the accused be removed to an institution for further examination, but in that event the accused may not be detained for more than eight weeks.  Alternatively he or she may order the accused person’s release for the purpose of further examination.

If the judge or magistrate finds that the accused person is mentally disordered or intellectually handicapped, the trial is held in abeyance until the accused recovers and he cannot demand that he be either acquitted or convicted.

2.  Mental disorder not rendering accused unfit to stand trial

If medical evidence adduced in the circumstances outlined above shows that the accused person, though mentally disordered or intellectually handicapped, is able to understand the nature of the criminal proceedings and to conduct his defence properly, the trial will normally proceed.  However, if the medical evidence from two medical practitioners, one of whom is a designated practitioner, indicates that the accused is a danger to others, then special procedures must be followed after the verdict in the trial.

• If the accused is acquitted or discharged, the court may immediately thereafter order that he be returned to prison and subsequently detained in a special institution.If a magistrate makes such an order, the accused cannot be detained for longer than eight weeks, and the papers are sent to the Registrar of the High Court, via the Prosecutor-General, for consideration of a judge who can order the accused’s continued detention in the institution for an indefinite period.
• If the accused is convicted, the court may impose sentence in the ordinary way and, in addition, order that the accused should be returned to prison and subsequently detained in a special institution.If the sentence is one of imprisonment it will be served in the special institution.A magistrate’s order that the accused should be detained in a special institution is subject to review by a judge of the High Court, and such an order, whether made by a magistrate or a judge, counts as a conviction for the purposes of an appeal.

Recovery of person found unfit to plead or stand trial

Upon the recovery of a person who is in an institution after an order under section 27 or 28 of the Mental Health Act [Chapter 15:12] (i.e. a person who has been detained in the institution after being found before or during trial to be mentally disordered), he or she must not be released unless the Prosecutor-General has been given at least 14 days’ notice of the proposed release.  The Prosecutor-General will then decide whether or not to revive the prosecution.

Mental illness becoming apparent after conviction

Where it becomes apparent after conviction in a magistrates court that the accused was mentally disordered or intellectually handicapped, the High Court should set aside the verdict on review and have the convicted person examined in terms of section 28 of the Mental Health Act [Chapter 15:12].  After that, the magistrate would be free to deal with him under section 28 of the Act (i.e. following the procedure as if the person had been found mentally disordered during the trial) or, if the person can understand the nature of the criminal proceedings, to proceed with the trial.

If a convicted person appears to an officer in charge of the prison to be mentally disordered, the officer must report it to the nearest magistrate, who must direct that the convicted person be medically examined.  If the medical evidence shows that the person is mentally disordered or intellectually handicapped, the magistrate must order his removal to an institution or special institution (depending on the medical evidence).

Accused person who was mentally disordered when the crime was committed

The courts most frequently deal with mental disorder in cases where the accused person, though sane when the trial takes place, was mentally disordered or intellectually handicapped when the crime was committed.

If, having heard evidence, including medical evidence, a judge or magistrate finds that the accused “did the act constituting the offence charged … but that when he did the act he was mentally disordered or intellectually handicapped so as to have a complete defence in terms of section 248 of the Criminal Law Code”, the court must return a special verdict to the effect that the accused is not guilty because of insanity.  The court must then make one of the following orders:

• that the accused be returned to prison for transfer to a mental institution for examination;
• if the court considers that the accused is charged with a petty crime (i.e. that he would not have been sentenced to imprisonment without the option of a fine or to a fine of more than level 3), either order the accused person to submit himself to medical treatment or order the accused’s guardian or close relative to apply for the accused to be received into an institution for treatment as a civil patient;
• if the court is satisfied that the accused is no longer mentally disordered or intellectually handicapped or is otherwise fit to be discharged, order his discharge and, where appropriate, his release from custody.

Within 14 days after the accused person has been received into an institution under the first of the above options, the superintendent of the institution must issue a written certificate about the accused’s mental condition, and the certificate is sent to a three-member special board with a copy to the Prosecutor-General, and the special board makes recommendations as to the accused person’s release, detention, care, management and treatment.  The board’s recommendations are sent to the Mental Health Review Tribunal, again with a copy to the Prosecutor-General, for review.

It should be pointed out that before the Mental Health Act [Chapter 15:12] came into force in 2000, the consequences of a “special verdict” were much more drastic for the accused person.  A court had to order the accused’s further detention in an institution after giving a special verdict, even if the accused was charged with a petty crime and even if he had recovered by the time of the trial.

Requirements for special verdict

For a defence of insanity to succeed and a special verdict to be returned, the accused must show that at the time of committing the act, he or she was suffering from a mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind, however caused, which made him:

• incapable of appreciating the nature of his conduct, and/or of appreciating that his conduct was unlawful;or
• incapable of acting in accordance with any appreciation he may have of the nature of his conduct and/or that his conduct was unlawful.

Even temporary mental disorder may entitle an accused person to a special verdict.

The burden of proof of a defence of insanity lies on the accused person, and it is discharged by proof on a balance of probabilities.  It has been said that it is illogical to place the burden of proving insanity upon the accused, because he is the person least capable of discharging the burden and is often anxious to deny that he is insane.  However, there is nothing to prevent the prosecution from accepting that the accused was mentally disordered and undertaking the onus of proof, thereby assisting the court to come to a just conclusion.  In almost all cases, moreover, if the accused claims to have been mentally disordered or intellectually handicapped when he committed the crime, he is examined at State expense and the defence and prosecution accept the findings of the medical practitioners who examined him.

Evidence required for special verdict

Section 29 of the Mental Health Act [Chapter 15:12] states that a special verdict can be given if the court is satisfied from “evidence, including medical evidence” that the accused person was mentally disordered or intellectually handicapped when the crime was committed.  This seems to mean that medical evidence is essential, but it has been held that it is not always necessary.

What constitutes mental disorder or intellectual handicap

The term “mentally disordered or intellectually handicapped person” is defined in the Mental Health Act [Chapter 15:12] as a person who is “suffering from mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind”.  This is a wide definition, but the term “mentally disordered or intellectually handicapped” in section 29 extends beyond the definition.  It can cover a purely temporary condition, however caused.  The only issue is whether the accused’s mental condition prevents or prevented him from knowing the nature and quality of his act or that his act was wrong, or whether it gives or gave rise to an irresistible impulse.

The following conditions (listed in John Reid Rowland’s book Criminal Procedure in Zimbabwe at p. 12-11) have been held to amount to a mental disorder or intellectual handicap which could give rise to a special verdict:

• a state of automatism due to head injuries received;
• feeble-mindedness which results in an adult having the mental age of a young child;
• a state of hysterical dissociation associated with a trance;
• a somnambulistic (i.e. sleep-walking) condition;
• irresistible impulse resulting from a disease of the mind, if the impulse could not have been resisted by the accused in the particular circumstances, even though he may have known that his act was wrong.
• consumption of drugs or alcohol resulting in a mental disease such as delirium tremens, though normally voluntary intoxication does not give rise to a special verdict even if it renders the accused incapable of knowing that what he was doing was wrong.

On the other hand, a black-out caused by tiredness and overwork rather than injury, which results in a temporary loss of memory, consciousness and vision, does not constitute a mental disorder or intellectual handicap that would justify a special verdict.  And amnesia, or an inability to remember what happened, would not justify a special verdict unless it was associated with a mental disorder or unconscious action amounting to automatism.

Deaf mutes

People who are deaf or mute, or both, are not mentally disordered, but communicating with them may cause problems, so if such a person is an accused in a criminal trial it may be necessary to find someone who is conversant with sign language to act as an interpreter, if the accused has been trained in that language.

Section 193 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals with the situation where an accused person is unable to conduct his defence properly because he is deaf or mute or both, although he is not mentally disordered or intellectually handicapped.  If the court is satisfied, having heard evidence, that it is in the interests of public safety or for the protection of the accused that he should be kept in custody, the court may order that he be kept in custody in a prison.  The nature of the evidence to be led is not specified, but there would need to be convincing medical evidence of the need to incarcerate the accused before such an order could be justified.  If such an order is made, it must be transmitted to the Minister responsible for justice, who ascertains the President’s decision for the further detention or care of the accused.

Query:  Is this procedure constitutional in the light of section 49 of the Constitution?  Probably not.