The State v Upenyu Zhou

On 16 January 2019, at Jindu River, Village Machovha, Chief Chingoma, Mberengwa, the accused, aged 20 years, was with his 9-year-old nephew (the deceased) who had left home at about 1000 hours to herd goats. At the grazing area, the accused forcefully inserted three sticks into the deceased's anus, causing fatal injuries. The accused then placed the deceased's body into a pond. At about 1200 hours, Nyasha Banda followed them to the grazing area and found the accused sitting on a rock alone with the deceased's body floating in the pond. Nyasha attempted rescue but abandoned it upon realizing the deceased was dead. A post-mortem examination by Dr Roberto Lara Diaz on 22 January 2019 concluded the cause of death was septic shock, peritonitis, and three penetrating sticks into the anus. The accused was examined by psychiatrist Dr N. Mawere at Mlondolozi Special Institution on multiple occasions, who concluded that at the time of the offence, the accused was suffering from mental retardation and temporal lobe epilepsy, and did not appreciate the wrongfulness of his actions.

• Whether the accused committed the act that caused the deceased's death
• Whether the accused was mentally disordered at the time of the commission of the offence such that he could not be held criminally responsible for his actions
• Whether a special verdict of not guilty by reason of insanity should be returned in terms of section 29(2) of the Mental Health Act

1. The accused is found not guilty and acquitted by reason of insanity. 2. The accused is hereby returned to prison pending transfer to Mlondolozi Special Institution for further examination and treatment in terms of section 29(2)(a) of the Mental Health Act (Chapter 15:23).

Where a court is satisfied from evidence, including medical evidence, that an accused person committed the act constituting the offence charged but was mentally disordered at the time of the commission of the offence to such an extent that he did not appreciate the wrongfulness of his actions, the court shall return a special verdict of not guilty by reason of insanity in terms of section 29(2) of the Mental Health Act. Mental disorder that negates criminal responsibility must be established through expert psychiatric evidence, and where such a verdict is returned, the accused may be committed to a special institution for examination and treatment.

The court noted that the accused accepts the evidence of state witnesses and the contents of the post-mortem report. The court also observed that while the accused was mentally disordered at the time of the offence, he was fit to stand trial at the time of the proceedings. The judgment emphasizes the importance of expert medical evidence in determining mental capacity and criminal responsibility, particularly psychiatric examination and EEG testing to establish the nature and extent of mental disorder.

This case demonstrates the application of section 29(2) of the Mental Health Act [Chapter 15:12] in Zimbabwe, which provides for a special verdict where an accused person commits an offence but was mentally disordered at the time such that they cannot be held criminally responsible. It illustrates the process and evidential requirements for establishing mental incapacity as a complete defense to a murder charge, including the necessity of expert psychiatric evidence and the court's discretion to order institutionalization for treatment rather than punishment. The case affirms the principle that criminal liability requires both the physical act (actus reus) and the requisite mental state (mens rea), and that mental disorder can negate criminal responsibility even in the most serious offences.