IN
THE HIGH COURT OF SWAZILAND
CRIM.
CASE NO.94/88
In
the matter of
THE
KING
vs
PHUMLANI
FREDERICK CHIBI
CORAM
: HANNAH,
CJ.
FOR
THE CROWN : MRS.
FRUHWIRTH
FOR
THE DEFENCE : MRS.
HLANZE
JUDGMENT
(12/5/89)
Hannah,
CJ.
The
accused has pleaded not guilty to an indictment which alleges that on
21st March 1988 he murdered Raymond Chibi, who was his father, and to
whom I shall refer in this judgment as "the deceased". At
the outset of the trial Mrs. Hlanze, who appears for the accused,
intimated that the defence wished to raise the issue of insanity and
wished to call Dr. Lasich, a psychiatrist, who has been treating the
accused and who travelled from Durban to give evidence. Accordingly
the court heard his evidence following the rule that evidence on such
an issue should normally be heard at the beginning of or early in the
proceedings. At the conclusion of his evidence the Crown called its
witnesses, the allegations in the indictment still remaining in
issue. The accused elected not to give evidence.
Section
165 (1) of the Criminal Procedure and Evidence Act provides -
2
"If
an act either of commission or omission is charged against any person
as an offence and it is
given in evidence on the trial of such person for such offence that
he was insane so as not to
be responsible according to law for his act at the time when it was
done, and if it appears to the
court before which such a person is tried that he did the act but was
insane as aforesaid at
the time when he did it, the court shall return a special finding to
the effect that the accused did
the act charged, but was insane as aforesaid when he did it."
As
appears from this subsection two questions arise. Has the Crown
established that the accused did the act with which he is charged
i.e. unlawfully killed the deceased? Secondly, has the accused
established that he was insane so as not to be responsible according
to law for his act at the time when it was done? The Crown must prove
the first issue beyond reasonable doubt: the accused must prove the
second issue on a balance of probabilities.
The
evidence on the first mentioned issue was for the most part
straightforward and unchalleged. In the morning of 21st March 1988
the accused's mother was alerted by a noise from the bathroom and on
going there found the deceased lying on the floor with the accused
standing over him hitting him with an iron bar. She saw the accused
hit the deceased - three times she thought - on the back of the head
and she observed an injury to the back of the deceased's head. After
the mother had intervened the accused ran off. The mother's evidence
was supported by Njabulo Lukhele who came on the scene when she was
struggling with the accused for possession of the iron bar and I have
no doubt that the accused did attack the deceased with an iron bar
and did inflict wounds on his head.
According
to Lukhele the deceased was still alive after the assault but
unconscious and he put him in a van in order to take him to hospital.
On the way the van skidded and the deceased fell
3
out
and the journey was completed in another vehicle. Lukhele said he saw
no additional injury to the deceased following the road accident but
Mrs. Hlanze correctly submits that the Court must be sure that the
accident was not the cause of the death of the deceased.
In
my view, the answer lies in the medical evidence. According to the
doctor who carried out the autopsy on the deceased there were four
distinct areas of major cut wounds on the head of the deceased. There
was a deep penetrating wound about 5cms on the left temporal region,
there was a deep penetrating wound about 7cms on the left hair-line
extending over the hair-covered scalp, there was a laceration on the
occipital region about 4cms long and a wound over the right temporal
region.
There
were fractures to the skull associated with these wounds and a
fracture of the occipital bone. Cause of death was intracranial
haemorrhage. In the opinion of the doctor these wounds were
consistent with blows being applied to the head with the iron bar,
exhibit one, which, I would add, is very heavy.
The
doctor was cross-examined by Mrs. Hlanze as to the possibility of the
fall from the van on the way to the hospital having been the cause of
the death of the deceased but the doctor considered that had his head
struck the ground with any degree of force there would have been
evidence of this visible on the head such as an area of haematoma;
but there was-none. In my judgment, the evidence of the doctor taken
together with the other evidence in the case rules out any reasonable
possibility that the death of the deceased was caused as a result of
the road accident. I am left in no doubt that his death was caused by
the assault perpetrated on him by the accused.
I
turn now to the evidence of Dr. Lasich. He is a psychiatrist of
considerable experience and I found his evidence compelling. He first
saw the accused on 30th September 1988 and then three times
4
in
October 1988 and again in April 1989. He provided the Court with the
case history of the accused from which it emerged that the accused
had been receiving treatment prior to 21st March for depression and
that his behaviour prior to that time had been abnormal. For example,
he had on one occasion placed a wall clock in the freezer because he
found it too noisy, an incident confirmed in evidence by the
accused's mother. As a result of his examination of the accused and
with the assistance of an assessment by a clinical psychologist who
also conducted tests on the accused Dr. Lasich was firmly of the
opinion that at the time of the killing the accused suffered from
paranoid schitzophrenia with a schizoid premorbid personality. In
layman's terms he had a split mind and suffered from delusions and
hallucinations with a predominant idea of being attacked or
persecuted.
These
delusions of danger became focused on his father and it was as a
result of this that he attacked his father. He acted, said the
doctor, in order to protect himself from what he falsely interpreted
as a threat to his life by his father. In the doctor's view the
mental illness suffered by the accused rendered him incapable of
appreciating, either morally or legally, the wrongfulness of his act.
In
my opinion, the doctor's diagnosis finds substantial support in
various circumstances surrounding the killing such as the fact that
the accused enjoyed a good relationship with the deceased, as was
testified to by the mother, that he killed the deceased quite openly
and without any apparent provocation and had been displaying abnormal
behavioural patterns during the evening preceding the killing. I find
in terms of section 165 (1) that the accused has established that at
the time of the killing he was insane so as not to be responsible
according to law for his act at the time it was done.
In
terms of section 165 (2) and (3) of the Criminal Procedure and
Evidence Act where a special finding in terms of section 165 (1) is
returned the Court must order, pending signification of His
5
Majesty's
pleasure, that the accused be kept in custody as a criminal lunatic
in such place and in such manner as it directs. The Court has no
option in the matter even when, as in the present case, the opinion
of the psychiatrist is that the accused has responded well to
treatment and that confining him in a hospital would be
counter-productive. All I can say is that the Court will expedite its
report to the Attorney-General and urges the Attorney-General to use
his best endeavours to ensure that the matter is brought to His
Majesty's attention as soon as possible.
Accordingly,
I make a special finding in terms of section 165 (1) of the Criminal
Procedure and Evidence Act that the accused was insane so as not to
be responsible according to law for the killing of the deceased and I
order that he be kept in custody at the Mental Hospital, Manzini
pendingsignification of His Majesty's pleasure.
N.R.
HANNAH
CHIEF
JUSTICE
