IN THE HIGH COURT OF MALAWI
SITTING AT MANGOCHI
CRIMINAL CASE NO 361 OF 2010
Coram: Hon. Justice R. Mbvundula
Maele, Likomwa, Chistsime,Counsel for the State
Domasi, Counsel for the Accused
Minikwa/Saiti/Mpasu, Official Interpreters
Gondwe/Mutiti Court Reporter
The accused was charged with the offence of murder contrary to section 209 of the Penal Code, being accused of causing the death of Yohane Makiyi with malice aforethought. The fact that the deceased, Yohane Makiyi, was killed at Angoni Lodge at Monkey Bay in Mangochi District on the material day is not in dispute. In pleading to the charge the accused said, "I understand the charge. I am surprised and I don't know the person who was killed on this day." The court accordingly entered a plea of not guilty.
It is the case for the state that on the night when the incident herein occurred the accused was seen by the deceased's wife assaulting the deceased. Prior to the assault the accused had attempted to have sexual intercourse with the deceased's wife, who then was sleeping with her husband outside a building, and when he faced resistance, he started to assault the deceased.
PW1 , Jonathan Justin Kawanga, a security guard at the then Malawi Lake Services told the court that it was around 1 a.m. when a certain woman he did not know knocked on his door. Kawanga's wife however recognised her as someone from Angoni Lodge. The woman informed them that an unknown person was hitting her husband on the head with a heavy object. She said the man had attempted to have sex with her and when she protested the man started to hit her husband. Considering the matter to be out of his control, Kawanga took the woman to the police and when they returned with the police they found the man, whom the deceased's wife identified as the assailant, singing songs and warming himself by a fire and wearing only an undergarment. The man was not moved by the presence of the police. The woman directed the police to a manhole behind the lodge where the deceased had been dragged. The deceased's body was retrieved from the manhole.
Two police officers who responded to the complaint and carried out investigations also testified. The first was Sergeant Goliati. The other was Detective Sub Inspector Mbewe. They both confirmed the state and behaviour of the accused at the scene, as narrated in the evidence of Kawanga, and that the deceased was recovered from the manhole and, further informed the court that the deceased was pronounced dead on arrival at the hospital. It was also their testimony that there was evidence of violent assault to the deceased's head and that when the accused was confronted about the assault the accused did not deny but claimed to have chased and killed a black scorpion.
In his own caution statement the accused stated that he had gone to Monkey Bay three days before the incident herein to practice sorcery and religious prayers. He admitted to have been at the lodge at the time of the incident. He stated that on this day he asked the deceased to lend him K5.00 which the deceased declined. He went on to state that during the evening in question he was sleeping in the house next to where the deceased and his wife were also sleeping and as he slept he heard some noise and immediately took some papers and lit a fire. Then he saw a black scorpion which he took and placed in a cup. He said it was after this that the police arrived accusing him of murder. He denied attempting to have sexual intercourse the woman or killing the deceased.
It is in evidence that there was no scorpion on the scene. In the assessment of Sub Inspector Mbewe the conduct of the accused signified insanity on his part. His opinion, he said, was further supported by the accused's conduct whilst in police custody when he defecated and smeared the stool all over himself. It was also the officer's opinion that a person in his normal senses would have escaped after assaulting the deceased but the accused remained on the scene, unmoved.
The police came across a blood stained animal bone on the scene and believe that it is the instrument which was used to assault the deceased. The findings of a post mortem examination of the deceased supports this belief. The medical officer who conducted the post-mortem examination of the deceased found evidence of assault with a heavy object.
The deceased's wife, Ainess Jasten, recorded a statement with the police which was tendered in evidence under the provisions of section 175 of the Criminal Procedure and Evidence Code. The statement was so tendered because Ainess Jasten was reportedly not traceable at the time of the trial. According to the evidence of the state, at the time of the incident she was well advanced in age. The defence did not object to the admission of the statement.
Ainess Jasten's statement is to the effect that the accused arrived at the lodge on the evening of the material day and said he was coming from Chileka in Blantyre and was looking for a place to sleep. Ainess' husband, the deceased, offered him a room to sleep. The deceased slept outside whilst she was in another room. Later in the night she noticed someone crawling along the wall in the room where she was sleeping and when he asked him where he was going he said he was looking for a place to sleep. It would appear that after this the woman relocated to where her husband was since she narrated, in her statement to the police, that after some minutes the man approached "where she had gone to sleep with [her] husband". The man started to pull the blanket and when she asked him what he was doing he did not give a sensible answer, and after a few minutes the man started to assault her husband whom he subsequently dragged and dumped into a newly constructed septic tank. She then rushed to Malawi Lake Services where she reported to "Mr Chiwanga" who with his wife accompanied her to the police. On return with the police they found the man warming himself by a fire and the police arrested him.
The accused did not adduce any evidence in his defence.
There are two main issues for determination in this trial and they are:
1. whether the evidence of the state has proved beyond reasonable doubt that it is the accused who killed the deceased in circumstances amounting to murder; and
2. if the answer to that issue is in the affirmative, whether the defence of insanity avails the accused.
Burden of proof
The law requires that the state must prove the guilt of the accused beyond reasonable doubt, and not for the accused to prove his innocence.
The facts of this case also raise the issue as to whether, if the accused did kill the deceased, he was thereby influenced by a condition of mind amounting in law to insanity. The burden of proving that lies on the defence as every person is presumed to be of sound mind, and to have been of sound mind at any time which comes into question: section 11 of the Penal Code. The standard of proof is on a balance of probabilities: Lusuwa v Republic [2002-2003] MLR 183.
1. whether there is proof beyond reasonable doubt that the accused killed the deceased in circumstances amounting to murder
The evidence before this court unquestionably establishes that Yohane Makiyi was assaulted to death. This is clear from the evidence contained in the statement of the deceased's wife, that of the police officers who conducted investigations as well as the findings from the post mortem examination of the deceased's body. There is, additionally, the statements of the accused himself about some killing by him albeit with reference to a non-existent something else.
It is not in doubt that at the time the deceased was assaulted only three persons were present - the deceased, his wife and the accused. In view of the statement by the deceased's wife that it was the accused who assaulted the deceased, and the accused himself confessing to the killing of something at the same time and place, it is this court's finding that the accused is the person who assaulted the deceased, although he may not have realised that what he was assaulting was a human being. The evidence points squarely at the accused and no other person or other reasonably possible agent of the death. It is the finding of the court that the prosecution has proved beyond reasonable doubt that it is the accused caused the death of Yohane Makiyi.
2. whether the defence of insanity avails the accused
The defence of insanity was raised in the final submissions of the defence. Under section 12 of the Penal Code a person of unsound mind is not criminally responsible for his acts or omissions if at the time in issue he was suffering from that condition of mind. In the Supreme Court of Appeal decision in Lusuwa v Republic [2002- 2003] MLR 183 it was held that the defence of insanity or irresponsibility should be raised during trial and the defence should establish proof of it on a balance of probabilities, and that if such be the case it is important to ascertain the mental condition of the person concerned both before and after the commission of the act in order to be able to answer the question whether he was capable or incapable of understanding what he did at the time. Therefore, it was held, a medical examination of an accused about his mental state should establish his condition both before and after commission of the crime to enable the court determine whether or not he was capable of forming the necessary intent. It was held further that where nothing is done to discharge the burden, the defence cannot be relied upon. It was also held that the defence must be raised at the trial and that the trial Judge is under no duty to direct the jury if the defence is not raised.
This court has been troubled by the fact that the requirements set out in the above judgment were not fulfilled since the defence was alluded to rather belatedly at the submissions stage. The Lusuwa judgment says where nothing is done to discharge the burden the defence cannot be relied upon. Going by that position alone this court should disregard the defence submission that the accused was of unsound mind at the time of the commission of his acts, based on the consideration that it did not discharge the burden accordingly. It is however the view of this court that this case should be treated as an exception because notwithstanding the failure by the defence to discharge the burden of proving the accused to have been of unsound mind, the omission was made good by prosecution evidence. A key prosecution witness, one of the investigating officers, expressed the point that from his observation of the conduct of the deceased throughout the whole episode he was convinced that the accused was of unsound mind. State counsel also agreed in their final submissions with the position that the accused must have, at the time, been labouring under a condition of mind amounting to insanity. On that account, and not being persuaded to the contrary by the totality of the evidence on record, this court accepts that a finding of insanity on the part of the accused be made and finds the accused not guilty by reason of insanity in accordance with the provisions of section 135(1) of the Criminal Procedure and Evidence Code.
Under section 135(2) of the Criminal Procedure and Evidence Code it is a requirement that upon making the above finding the court must make a reception order for the admission of the accused to a mental hospital, and the court may further order a restriction of the discharge of the accused from such mental hospital without the sanction of the Minister.
In accordance with section 135(2) of the Criminal Procedure and Evidence Code this court hereby makes a reception order requiring the accused, Musatope Chapotera, to be admitted at Zomba Mental Hospital, until such time as the Minister shall be satisfied as to the propriety of his discharge therefrom.
Pronounced in open court at Mangochi this 13th day of March 2017.