The State v Davison Chikomo

The accused, Davison Chikomo, was charged with murdering his mother-in-law, Memory Gasva, on 15 November 2014 at North Strateque farm, Chivhu. The deceased had invited the accused from Gokwe to Chivhu and persuaded him to attend her church (Paul Mwazha Church) for prayers and cleansing, claiming he was possessed by evil spirits. After a church service, while returning home, the deceased gave the accused maheu (traditional drink) to carry. The accused drank some maheu and claimed it contained herbs/roots and that the deceased was trying to poison him. He then struck the deceased on the head with a stone weighing 4.949kg - once while she was standing, then twice more as she lay on the ground. The deceased died from head injury and cervical spine subluxation. The accused claimed he suffered a mental blackout after drinking the maheu and could not recall the assault. He was examined by two medical practitioners who found no evidence of mental disorder. The accused had been in pre-trial custody for almost 2 years.

• Whether the accused suffered from a mental disorder or defect at the time of committing the offence that would provide a complete defence under section 227 of the Criminal Law Code
• Whether the accused proved on a balance of probabilities that he was temporarily insane or suffered a mental blackout
• Whether the accused acted under diminished responsibility due to acute mental or emotional stress under section 218 of the Criminal Law Code
• Whether the accused possessed the requisite mens rea (intention or realization of real risk) for murder
• What weight should be given to pre-trial incarceration in sentencing
• The appropriate sentence for murder committed under diminished responsibility

The accused was found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act. He was sentenced to 3 years imprisonment wholly suspended for 5 years on condition that he does not during that period commit an offence involving the unlawful killing of another human being for which upon conviction he is sentenced to serve a term of imprisonment without the option of a fine.

1. Under section 227 of the Criminal Law (Codification and Reform) Act, an accused pleading mental disorder or defect as a complete defence bears the burden of proving it on a balance of probabilities (section 18(4) proviso). 2. A plea of temporary insanity or mental blackout requires clear and convincing evidence, preferably expert psychiatric or psychological evidence, to establish that the accused was incapable of appreciating the nature or unlawfulness of his conduct or incapable of acting in accordance with such appreciation. 3. Diminished responsibility under section 218 arises where the accused's capacity to appreciate the nature or unlawfulness of conduct, or to act in accordance with such appreciation, is diminished (not negated) on account of acute mental or emotional stress. 4. Diminished responsibility is not a defence to a criminal charge but operates as a mandatory mitigating factor in sentencing. 5. A court can find diminished responsibility based on the totality of circumstances even without expert medical evidence, where the facts support a finding that emotional stress affected the accused's mental capacity. 6. In sentencing for murder committed under diminished responsibility, courts must balance the triad of the crime, the criminal, and the interests of society, tempering justice with mercy where appropriate. 7. Substantial pre-trial incarceration, while not forming part of the sentence, is a relevant mitigating factor that must be considered together with all other circumstances, including the harsh conditions and psychological trauma of pre-trial detention.

The court observed that society expects its members to keep their emotions and tempers under control, and a fit of rage or lost temper should not by itself be mitigatory. However, the critical consideration is examining the circumstances that led the person to fail to exercise self-control. The court noted that prison conditions in Zimbabwe are harsh with overcrowding and other vices, and pre-trial incarceration is particularly difficult because remand prisoners live a routine life without freedom to participate in prison programs, despite being presumed innocent. The court commented that while deterrence is an important objective of punishment, individual deterrence has little application where an accused is a first offender whose conduct appears out of character. General deterrence must also be considered against the backdrop that there is no evidence that punishing an offender automatically deters similarly minded would-be offenders. The court implored members of society to exercise self-restraint and control in their dealings with one another, emphasizing that violence as a method of dispute settlement should not have a place in modern society. The judgment also noted that it is hardly possible to satisfy every member of society as to whether a sentence is appropriate, as the bereaved will call for harsh sentences while those on the accused's side will call for leniency.

This case is significant in Zimbabwean criminal jurisprudence for its comprehensive analysis of the distinction between complete mental disorder as a defence (section 227 of the Criminal Law Code) and diminished responsibility as a mitigating factor (section 218). It clarifies that: (1) the burden of proving mental disorder or defect rests on the accused on a balance of probabilities (section 18(4) proviso); (2) temporary insanity or blackout must still be proved through appropriate evidence, preferably expert psychiatric/psychological evidence; (3) diminished responsibility arising from acute emotional stress can be found even without expert medical evidence if the surrounding facts support it; (4) the court must assess each case individually when sentencing for offences committed under diminished responsibility; and (5) substantial pre-trial incarceration can, together with other mitigating factors including diminished responsibility, justify a wholly suspended sentence even in murder cases. The judgment provides important guidance on the modern codified approach to mental states affecting criminal responsibility and the proper weight to be given to pre-trial detention in sentencing, particularly in the context of constitutional rights to trial within a reasonable time.