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JUDICIARY

IN THE HIGH COURT OF MALAWI

ZOMBA DISTRICT REGISTRY CRIMINAL CAUSE NO 02 OF 2014

THE REPUBLIC

-VERSUS-

OSWARD LUTEPO

DR. JOYCE BANDA (INTERESTED PARTY)

CORAM: HON. JUSTICE RE KAPINDU : Mrs. Kachale, Director of Public Prosecutions, for the State

: Mr. Mtupila, Counsel for the accused person

: Mr. Nkhwazi, Official Interpreter : Mrs. Chirombo, Court Reporter.

RULING

KAPINDU, J

1. This is an application made on behalf of the accused person herein, Mr. Oswald Flywell Lutepo, by his Counsel, Mr. Oswald Mtupila, for an order

for assessment of the accused persons mental health for purposes of his fitness to stand trial, presently.

2. The Application is supported by the Affidavit of Shunem Nkosi, who

deposes that the accused person is his Cousin and that he has been the accused persons Guardian ever since he fell ill in November 2014.

3. He deposes that the accused persons illness started back in November 2014 when he collapsed whilst in custody at Lilongwe Police Station, and was rushed to Kamuzu Central Hospital for treatment. Upon being

examined, the accused person was diagnosed with panic and anxiety

disorder. He was hospitalised for a few days and the discharged upon

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being prescribed medication and other therapeutic measures. A Hospital

record to this effect has been exhibited and marked SN1.

4. On 23 January 2015 the accused person was admitted once again at

Katoto MASM Medi-Clinic in the City of Mzuzu where he received similar diagnosis. He was again prescribed medication and referred to Mzuzu

Central Hospital. The examining physician stated that according to our observation, the patient needs a specialist consultation (psychiatric) for

more investigation and better management. The Medical Report of Dr. Isaac D Gasiga, the Medical Officer-in-Charge of Katoto MASM Medi

Clinic has been exhibited and marked SN2.

5. Mr. Nkosi depones that upon making inquiries, it was discovered that

there was no Psychiatric specialist at Mzuzu Central Hospital and he was

referred to St. John of God Hospital in the City of Mzuzu that provides psychiatric treatment and care. He depones that at St. John of God, the

accused person was recommended for some services, that I need not

mention here for confidentiality purposes, and which services were neither available at St. John of God nor at Mzuzu Central Hospital. He

was then referred to Kamuzu Central Hospital.

6. At Kamuzu Central Hospital he was once again diagnosed with the same anxiety disorder with panic attacks. Again we need not provide details

contained in that Report here. It suffices to mention that both the

Reports of Dr. Jonathan Ngoma, MBBS, FCP (SA) (Medical Specialist and Hospital Director at Kamuzu Central Hospital, whose Report is exhibited

and marked SN3), and Dr. Stanley Chifundo Tepeka, BSc (Clinical Medicine, Mental Health) (whose Report is exhibited and marked SN2) state that the accused person was referred, inter alia, for further psychiatric assessment. A referall letter from Dr. Ngoma to the Hospital Director of Zomba Mental Hospital has been exhibited and marked SN5.

7. Mr. Nkosi deposes that however, Zomba Mental hospital refused to act

because the referral letter from Kamuzu Central Hospital did not have sufficient particulars. I must mention that upon reading the referral

letter, I was not entirely sure why Zomba Mental Hospital did not act on

Dr. Ngomas referral. The accused person was then referred to Queen Elizabeth Central Hospital for assessment by a Psychiatric specialist, Dr.

Jennifer Ahrens.

8. He deposes that on a couple of occasions, the last one being Wednesday,

the 4th of March 2015, the accused persons appointment with Dr. Ahrens failed because of the extremely busy schedule of the Doctor.

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9. He has been scheduled another date on either the 9th or 10th of March

2015.

10. Mr. Nkosi deposes that meanwhile, the accused persons condition

continues to deteriorate by the day. This is consistent with the Diagnosis

of Dr. Tepeka.

11. It is in light of these developments that Mr. Nkosi deposes that it would

only be fair and just that the court should intervene by issuing specific directions on how the accused person should be examined, and an

assessment made as to whether or not he is fit to stand trial in the

matter herein.

12. Counsel Mtupila made the application under the Courts inherent jurisdiction, but invited the Court to be guided by the provisions of

Section 133 of the Criminal Procedure and Evidence Code (Cap 8:01 of the Laws of Malawi) (CP & EC) in coming to its decision.

13. The Director of Public Prosecutions, Mrs. Kachale has no objection to the application. However she has invited the Court to be very specific

and detailed as to the particular aspects of assessment that this Court

requires for purposes of these proceedings, in order to guide the psychiatric specialists in making their forensic psychiatric assessment.

14. The full text of Section 133 of the CP & EC is in the following terms:

(1) When in the course of a trial or preliminary inquiry

the court has reason to believe that the accused may

be of unsound mind so as to be incapable of making his defence, the court shall adjourn the trial or inquiry

for such period, not exceeding one month, as the court

may deem fit, and shall thereafter (a) order that during such adjournment the

accused shall be kept in custody or at such other

appropriate place as the court may direct, for observation and treatment;

(b) direct that a medical practitioner examine

the accused and inquire into his mental condition, with particular reference to his capability of making

his defence, and report to the court thereon, and the

medical practitioner shall comply with such direction

and his report shall on its mere production be admissible in evidence as proof of its contents;

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(c) the court shall forward to the medical

practitioner with its the reasons for its giving such directions.

(2) If at the time and place to which the hearing

shall be adjourned such report is not, or has not been, furnished to it, the court may, without requiring any

attendance before it of the accused, adjourn the trial

or inquiry for such further period, not exceeding

fourteen days, as may appear to it necessary to enable such report to be so furnished.

(3) If at the time and place to which the hearing

or the further hearing shall be adjourned, such report is, or has been, furnished to the court, it shall

consider the same. Copies of the report shall be

supplied by the court to the prosecution and to the accused or his legal practitioner either at the hearing,

or, if practicable, before it. The court may in its

discretion cause the medical practitioner who furnished the report to be summoned to give oral

evidence at the hearing. If upon consideration of the

report and of any evidence which may have been

adduced upon the question of the mental condition of the accused by or on behalf of the prosecution or the

accused the court is of the opinion that the accused is

of unsound mind and consequently incapable of making his defence it shall adjourn further

proceedings in the case to a then unspecified time and

place. (4) If the case is one in which bail may be taken,

the court may release the accused on sufficient

security being given that he will be properly taken care of and prevented from doing injury to himself or any

other person, and for his appearance before the court

or such other officer as the court may appoint in that

behalf. (5) If the case is one in which bail ought not to

be taken, or if sufficient security be not given, the

court shall make a reception order for the admission of the accused to a mental hospital. No person admitted

to a mental hospital under a reception order made

under this subsection may be discharged from such hospital without the sanction of the court unless a

discontinuance has been entered discontinuing the

proceedings in the course of which such order was

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made. If such a discontinuance has been entered a

copy of the discontinuance order shall be served on the Secretary for Health and the person detained may

be discharged from the mental hospital upon an order

in writing by the Secretary for Health or by three of the visitors of the mental hospital one of whom shall be a

medical practitioner.

(6) Whenever any preliminary inquiry or trial is

postponed the court may at any time resume the preliminary inquiry or trial and to appear or be

brought before such court, when, if the court

considers him capable of making his defence, the preliminary inquiry or trial shall proceed. But if the

court considers the accused to be still incapable of

making his defence, it shall act as if the accused were brought before it for the first time.

(7) Any question arising under this section in

any proceedings held before the High Court shall be determined by the judge and not by a jury.

(8) If the trial is one before the High Court, and

the High Court has reason to believe that the accused

may be of unsound mind so as to be incapable of making his defence at any time after the accused has

been given in charge of a jury, the High Court may

order the jury to be discharged from giving a verdict on the count or counts in the charge when it makes any

adjournment under this section.

(9) Notwithstanding the discontinuance pursuant to this section, the Secretary for Health shall

furnish to the court monthly reports in the prescribed

form on the status of the person detained until such person is discharged from hospital.

(10) Where it appears that there is sufficient

reason to believe that an accused is of unsound mind

and incapable of conducting his defence, the court may, if the accused is not represented by a legal

practitioner and the court considers that the interest

of justice so requires, assign a legal practitioner to act on behalf of the accused.

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15. I have searched extensively for local authorities on the point. I could not

find any. In the premises, I had to look elsewhere for guidance.

16. The learned DPP brought to the Courts attention the case of R v M (John) decided by the English Court of Appeal.1 The facts were that the appellant was convicted of various charges of a sexual nature for

offences committed against his partner's granddaughter when she was

aged between 8-10. The issue of the appellant's fitness to plead

was raised by the defence and a jury was empanelled to try that

issue. Medical evidence was that the appellant suffered a

serious impairment of his short term memory caused by long

term affects of excess alcohol but that he was otherwise capable

of understanding the charges against him. The jury found that

he was fit to plead and his case proceeded to trial where he was

found guilty of the charges. He appealed against the jury's

finding of fitness to plead on the grounds that the trial judge

had set the threshold for fitness too low. Dismissing the appeal,

the Court of Appeal approved the trial judge's direction that the

jury could find unfitness to plead if the defence could establish

on a balance of probabilities any one of six things that was

beyond the appellant's capabilities:

(a) understanding the charges;

(b) deciding whether to plead guilty or not;

(c) exercising his right to challenge jurors;

(d) instructing solicitors and counsel;

(e) following the course of the proceedings;

(f) giving evidence in his own defence.

On the evidence it was open for the jury to find that he was fit to

plead. The question is always one for the jury even if the medical

evidence supports a finding of unfitness.

17. I must be quick to point out that the references to the jury are inapplicable in the present case; but otherwise the R v M (John) case

provides some important insights on the factors to be taken into

consideration when making an assessment as to the accused persons capacity to stand trial.

1 [2003] EWCA Crim 3452. This fair summary of the case was accessed on the website

http://www.e-lawresources.co.uk/R-v-M-%28John%29.php (accessed 5 March 2015).

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18. Further, the National Institute of Mental Health and Neuro-sciences

(NIMHN) in India has provided us with very insightful guidelines on the issue of mental assessments for purposes of determining fitness for

trial.2 The NIMHN has stated that in law, fitness to stand trial deals with the mental capacity of an individual to participate in legal proceedings. It has stated that fitness to stand trial is a legal construct that usually refers to a criminal defendants ability to participate in legal proceedings related to an alleged offence (Mossman et al., 2007).3

19. The NIMHN has further stated, correctly in my view, that fitness to stand trial evaluations have profound significance because of their

influence on court decisions, court proceedings, resources utilised and the far-ranging consequences for the defendant with regard to referral to

a forensic psychiatry setting. (Melton GB et al., 2007; Melton GB et al., 1997; Quinnell & Bow, 2001).4

20. In the America decision of Dusky v. US. 362 U.S. 402 (1960), the

Supreme Court stated that fitness of an accused person for trial related to "whether he had sufficient present ability to consult with his lawyer

with a reasonable degree of rational understandingand whether he [had] a rational as well as factual understanding of the proceedings

against him"

21. The NIMHN has also researched the position obtaining in Canada,

stating that in the Criminal Code of Canada, an individuals ability is defined in terms of three areas of information. First, the accused must

understand the nature or object of the proceedings. Second, the accused

must understand the possible consequences of the proceedings, and finally, he or she must be able to communicate with counsel (Zapf et al., 2001).5 It goes further to explore the position in Australia, observing

2 http://www.nimhans.kar.nic.in/prison/chapter_11-f__stand_trial.pdf. 3 Mossman D, Noffsinger SG, Ash P, Frierson RL, Gerbasi J, Hackett M, Lewis FC, Pinals

DA, Scott CL, Sieg KG, Wall BW, Zonana HV. AAPL Practice Guideline for the forensic psychiatric evaluation of competence to stand trial. J Am Acad Psychiatry Law. 2007;35:S3-72. (Availble online at http://www.peterash.com/pdf/AAPL_competence_guideline., cited in NIMHN, http://www.nimhans.kar.nic.in/prison/chapter_11-f__stand_trial.pdf (accessed 5 March 2015).

4 Melton GB, Petrila JP, Poythress NG, Slobogin C 1997. Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (ed 2). New York: Guilford Press; Melton GB, Petrila J, Poythress NG 2007. Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (ed 3). New York: Guilford Press; Quinnell F, Bow J. Psychological tests used in child custody evaluations. Behavioral Sciences & the Law. 2001;19:491-501.

5 NIMHN, (note 1 above). See also Zapf P, Roesch R, Viljoen J. The utility of the Fitness Interview Test for assessing fitness to stand trial. Can J Psychiatry. 2001;46:426432.

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that In the Australian legal system, a person is deemed to be fit to stand trial if he or she has the ability to achieve a lay persons understanding of: the court process, the charges that have been made,

and how s/he will instruct legal advisors to proceed in relation to the

charges (Large et al., 2009; Mullen, 2002).6

22. The NIMHN concludes that Almost all legislations have certain common components which are used to determine the impairment in cognitive,

emotional and behavioural domains of brain functioning, with regard to assessment of fitness to stand trial. They are as follows, a)

comprehending the charges framed against them, b) realising the

seriousness of the penalties if proven guilty, c) following the proceedings of the court, d) helping their lawyer to defend their case and e)

appropriate behaviour in the court. It further concludes that The court may order an assessment of the defendants mental condition if it believes that such evidence is necessary to determine a) fitness to stand

trial, b) whether the defendant was, at the time of the commission of the

alleged offence, suffering from a mental disorder, c) whether that mental disorder impairs reasoning power of the defendant and d) for placement

of the individual in an appropriate place such as a mental hospital,

rehabilitation, or high security prison, and that Even if a person is suffering from mental disorder, it should be assumed that he/she has the mental capacity to decide on various matters unless the contrary

can be shown. This position mirrors the provision in Section 11 of the Penal Code (Cap 7:01 of the Laws of Malawi) that Every person is presumed to be of sound mind, and to have been of sound mind at any

time which comes in question, until the contrary is proved.

23. In the instant case, I presume the accused person to be of sound mind. I

presume that at all materials times he has been and still is of sound

mind unless the contrary is proven. Be that is it may though, I should also be mindful that the law does provide guidelines on how courts are

to proceed where there is reason to believe that the accused may be of

unsound mind so as to be incapable of making his defence. I lay

emphasis on the words may be to highlight the fact that subjecting the accused person to the procedure under Section 133 of the CP & EC does

not suggest or presuppose that the accused person is of unsound mind.

Neither does it create a presumption of unsoundness of mind. The Section 133 of the CE & EC procedure does not displace the

6 NIMHN (note 1 above). See also Large M, Nielssen O, Elliott G. Reliability of psychiatric

evidence in serious criminal matters: fitness to stand trial and the defence of mental illness. Australasian Psychiatry 2009;43:446-452; Mullen P. Commentary: Competence assessment practices in England and Australia versus the United States. J Am Acad Psychiatry Law. 2002;30:486.

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presumption of soundness of mind under Section 11 of the Penal Code.

What Section 133 of the CP & EC does is to create procedural safeguards to ensure that where there is reason to suspect, or to believe,

that a person might possibly be of unsound mind, such person should

ordinarily not be subjected to trial before his or her mental competence for purposes of trial is professionally assessed and established. In other

words, the Section 133 procedure is a due process or fair trial procedure

to be followed in such cases.

24. In the present case, I have above highlighted the various medical

opinions all of which suggest that the applicant has psychiatric issues

that must be attended to by psychiatric specialists. His Counsel has in that regard made an application for this Court to order a formal

assessment by psychiatric specialists to establish fitness for trial.

25. According to Professor Newman, writing on Criminal Procedure in Malawi,

if an accused person appears incapable of pleading to a

charge and making a defence, and the Court is of the

Opinion that this inability is due to mental infirmity, then

the procedure set out in Section 133 of the Code will be

followed. The Court must adjourn the hearing of the case,

for a period not to exceed one month, and direct that during

such period, the accused must be kept in a mental hospital.

There, he will be examined by a medical practitioner who

will inquire into his mental condition, with particular reference to his capability of making his defence, and

report to the Court thereon.7

26. I have given this matter my most careful consideration. I take into

account that the State does not oppose the application. When all the facts, particularly the representations from highly qualified and

competent medical professionals that have been made are considered, I

opine that there is enough suggestion to trigger the operation of the observation, assessment and/or treatment procedure laid down under

Section 133 of the CP & EC. I therefore proceed to grant the application

made on behalf of the accused person. In the premises, I Order that:

a) The accused person, Mr. Oswald Flywell Lutepo should, be kept in, and I

order the Hospital Director (or any such person currently having overall

charge of the Queen Elizabeth Central Hospital (QECH) in the City of

7 D Newman, Criminal Procedure in Malawi, 131.

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Blantyre, to keep the accused person in custody thereat, for observation,

treatment and psychiatric assessment as to his fitness for trial.

b) The Hospital Director (or any such person currently having overall

charge of QECH) should cause two psychiatric specialists, one being Dr. Jennifer Ahrens, mentioned in Shunem Nkosis affidavit, and another to be appointed by the said Hospital Director (or any such person currently

having overall charge of QECH), to conduct an independent assessment

of the mental condition of the accused person, and in particular, his capacity to stand trial in criminal proceedings.

c) Should the Hospital Director of QECH form the opinion that the accused person be referred to a specialist mental institution for such observation,

treatment and psychiatric assessment, he or she shall make such a

clinical decision on professional grounds, and communicate the same to the Court immediately for the Courts prior endorsement, before

transferring the accused person to such other health facility.

d) Without restricting the generality of the assessment that the psychiatric

specialists may make in their Report, the Court specifically invites the

specialists to consider the following factors that the Court shall consider

when making its determination on the accused persons fitness to stand trial.

i. His ability and/or capacity to comprehend the charges framed against him;

ii. His ability and/or capacity to realise the seriousness of the penalties

if proven guilty; iii. His ability and/or capacity to follow the proceedings of the court;

iv. His ability and/or capacity to help his lawyer to defend his case;

v. His ability and/or capacity to maintain appropriate behaviour in the court; and

vi. His ability and/or capacity to competently give his own evidence

should the need arise and should he elect to do so.

e) The Reports herein should be furnished to this Court no later than 30

calendar days from the date hereof.

f) The Court shall require two Reports, one each from the two psychiatric

specialists, which will be compiled and issued independently of each

other.

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g) The Hospital Director (or any such person currently having overall

charge of QECH) shall have the Responsibility of causing the said Reports to be furnished to the Court under strict confidential cover.

h) The matter is adjourned to Thursday, the 16th of April 2015 to consider the Reports of the psychiatric specialists on the accused persons mental health and capacity to stand trial, and to make further directions and

any other necessary orders as may be appropriate.

Made in Open Court at Zomba this 5th Day of March 2015

RE Kapindu, PhD

JUDGE