Discovery of Mental Unfitness Before Trial (Zimbabwe)

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If, as a result of his interviews with his client, the defence lawyer considers that X is not mentally fit to stand trial, he should liaise with the prosecutor in the case so that the mental condition of X can be brought to the attention of a magistrate and an order can be made for a psychiatric investigation into the mental competence of X to take place.

Where X is mentally unfit to stand trial he must be dealt with under s 27 of the Mental Health Act.

In terms of s 27(1) of the Act, if it appears that a person being held in custody pending trial is mentally disordered or defective, the prosecutor or the person in charge of the place of detention (which may be a police station or a prison) must report this fact, without delay, to a magistrate of the province in which the place of detention is situated.

The procedures to be followed in this sort of case are set out in subsections (2), (3), (4) and (5) of s 26.

The Chief Magistrate's Circular No 9 of 1984 suggests that in this sort of case the magistrate should request the prosecutor, as soon as possible, to obtain from the police docket copies of the witness statements as to X's conduct at the time of the crime, and, where necessary, any further information about his mental condition from relatives and associates. The case should be remanded. The circular says that on receipt of the information, if it appears that X may be mentally disordered, arrangements should be made through the police or prisons for the requisite medical examination to be made as required by the Mental Health Act.

Section 26 actually requires that, within twenty-four hours of receipt of a report, the magistrate must direct that the medical examination take place.

Two medical practitioners (or one, if two are not available) must state in writing their opinion as to the mental condition of the prisoner. Based on this opinion the magistrate must then decide what to do with X. If such person is considered to be unfit to stand trial because he is mentally disordered or defective he will be committed to a mental institution until he has recovered. After recovery he can then be put on trial: s 30 Mental Health Act.

Often persons who are mentally unfit to stand trial may also have been mentally disordered or defective when they committed the crime. It is, therefore, useful if the doctors also consider whether X is likely to have been mentally disordered or defective at the time that the offence was perpetrated. This may save having to have a further medical investigation after X has recovered and is put on trial. If the doctors say that X was mentally disordered or defective at the time of the offence, there is little point in putting him on trial after his recovery unless there is some doubt about the opinion of the doctors. If he were to be tried, a special verdict would be returned under s 28 of the Mental Health Act. He would then have to be sent to a mental institution even though he has already been in a mental institution and he has recovered from his mental condition.

As regards the procedure for dealing with an accused person who displays signs of being mentally disordered after the trial commences, see later under "Trial - Mental Unfitness of X to Stand Trial".

See Zimbabwe Criminal Defense Manual