R v Mothobi (CRI/T 27 of 94) [1996] LSHC 86 (4 September 1996)

CRI\T\27\94 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX vs NKHAHLE MOTHOBI J U D G M E NT Delivered by the Hon. Mr Justice M L. Lehohla on the 4th day of September. 1996 I m u st first all e x p r e ss my gratitude to the w i t n e ss Dr S h a f i u d d in S h a i kh w ho h as g i v en e v i d e n ce in this C o u r t. In brief he h as indicated that this is n ot the first t i me he h as a p p e a r ed b e f o re C o u rt to g i ve e v i d e n ce c o n c e r n i ng the a c c u s e d. He stated that he is a consultant specialist; that is a psychiatrist h o l d i ng an MB D e g r ee f r om G u j a r at University in India. He is also p o s s e s s ed of a t wo y e ar D i p l o ma in P s y c h o l o g i c al M e d i c i n e. A ll in all this entailed a total of s e v en y e a r s' training. He is presently stationed at M o h l o mi H o s p i t al - a facility taking c a re of t h o se suffering f r om the disease of the m i n d; a nd he d o es e x a m i n a t i on of out- patients at Q u e en Elizabeth II H o s p i t al too. He h as h ad c o n s i d e r a b le practice e x a m i n i ng m e n t a l ly defective patients b o th in the H i gh C o u rt a nd e v en o n ce in the C o u rt of A p p e a l. At the request of this C o u r t, the w i t n e ss w as a s k ed to e x a m i ne the a c c u s e d. He in his o wn w o r ds said he r e a s s e s s ed h im on the 2 3 rd a nd 2 4 th A u g u s t, 1 9 9 6. Prior thereto he h ad furnished this C o u rt w i th reports d a t ed 5th O c t o b e r, 1 9 95 a nd 2 0 th D e c e m b e r, 1 9 9 5. He personally interviewed the a c c u s ed u s i ng services of an interpreter. T he interpreter w as a psychiatric nurse. He k e pt a r e c o rd of the interview a nd p r e p a r ed a report. T he report w as h a n d ed in a nd m a r k ed Exhibit " C" d a t ed 2 8 th A u g u s t, 1 9 96 a nd it b e a rs the w i t n e s s 's signature. T he w i t n e ss referred extensively d u r i ng the c a u se of his e v i d e n ce to this report a nd it r e a ds as f o l l o ws : " T h a t 's the M e d i c al R e p o r t. R EX vs N K H A H LE Mothobi CRI\T\27\94 I referred to M e d i c al R e p o r ts on a b o ve a c c u s ed p e r s on on dates 5th O c t o b er a nd 20th D e c e m b e r, 1 9 9 5. I reassessed h im on 2 3 rd a nd 24th A u g u s t, 1 9 9 6. D u r i ng the interview, he w as irritable a nd later b e c a me a n g ry a nd did not c o- operate well". T he conclusion the witness c a me to is that there is no c h a n ge in the patient's mental condition. This latter aspect of the witness's statement relates to the findings of the 5th O c t o b e r, a nd 20th D e c e m b e r, 1 9 9 5. At this latest stage of the report dated 2 8 . 0 8 . 9 6, the witness h ad benefit of scientific m e t h od b a s ed on w h at is called "a rating scale for fitness to stand trial". This is w h at he administered a nd the witness referred to p a ge 7 34 of these w o n d e r f ul w o r ks dated J u ne 1 9 9 6. T he entire d o c u m e nt consists of hardly 5 p a g es a nd I h a ve a s k ed that the Registrar should p h o t o c o py it a nd h a ve it incorporated into this J u d g m e n t. T he E x a m i n er indicated the accused as having scored 5 1, T he break-off point in the scoring scale is 3 1. T he witness m a de the C o u rt to u n d e r s t a nd that at 31 - at score 31 an a c c u s ed p e r s on is r e c k o n ed to be incapable of standing trial. It stands to reason then that at score 51 he is a lot m u ch w o r se than at the break-off point. T he w i t n e ss c o n d u c t ed this test in an e n d e a v o ur to d e t e r m i ne w h e t h er the a c c u s ed c o u ld stand trial. He relied on the rating scale p u b l i s h ed in S o u th A f r i ca by a t e am of E x p e r t s; ( 1) F . J . W. C A L I TZ D P . P H IL ( 2) P. H. JJ. V AN R E N S B E RG MD (3) H. W O S T H U I Z EN L LD (4) V E R S C H O OR L LD all of the University of O r a n ge F r ee State attached to t he d e p a r t m e nt of Psychiatry a nd C r i m i n al L aw relating to the subject "Criteria to u se to d e t e r m i ne ability to stand a criminal trial". I fully e n d o r se the witness's v i ew that theirs is a valid a nd a c c e p t ed test. On the basis of the questionnaire a p p e a r i ng on this d o c u m e nt the C o u rt w as m a de to u n d e r s t a nd that the w o rk is divided into four sections : T he first is legal i t em the next is psychiatricitem f o l l o w ed by special item a nd finally psycho-social i t em ranging f r om 0-3 in e a ch item. T he e x a m i n er w as reading, during the c o n d u ct of this examination, these items to a n u r se w ho in turn translated the s a me to the a c c u s ed a nd the a n s w e rs obtained w e re rated in t e r ms of degree of impairment. T he fact that f r om the w ay the thing is graduated or calibrated the patient s c o r ed 51 w h en 31 itself p ut h im in rather d im light satisfies me that he definitely couldn't stand trial. T he witness testified that the patient consistently in all occasions that he w as interviewed a nd treated c o m p l a i n ed of insects in his h e ad m a k i ng f u n ny s o u n d s. T he rating scale test w as administered first on 2 4 th A u g u st 1 9 96 a nd the a c c u s ed or the patient w as not on m e d i c a t i on as he is still n ot on a ny today. T h us he w as fully conscious a nd well orientated in t e r ms of t i me a nd surroundings. It is the o p i n i on of the witness that it is highly unlikely that the a c c u s ed or the patient could h a ve b e en given a ny d r u gs before the e x a m i n a t i on the witness administered. T he conclusions reached a nd the opinion f o r m ed by the witness w e re that the a c c u s ed is suffering f r om delusional (persistent persecutory t y pe of) disorder. I n d e ed I also b e ar witness to the fact that a c c u s ed actually c h a r g ed me with persecuting h im e v en t h o u gh I h ad a l w a ys g o ne out of my w ay to be particularly gentle with h im bearing in m i nd that I h ad benefit of perusing the preparatory record before m e e t i ng h im in Court. T he witness w e nt further to express his w i sh to a dd s o m e t h i ng on w h at he h ad stated before C o u r t; a nd w h at he told the C o u rt I f o u nd v e ry spell-binding a nd very revealing indeed. He said that after the 2 4 th after examining the accused he administered w h at is called abreaction treatment through the veins of the accused. In this process the patient is m a de d r o w sy but not fully asleep. T he w h o le point for doing this w as to ensure that if he h ad consciously tried to evade answering questions or w as cagey about telling the examiner anything or w as trying to suppress his k n o w l e d ge of things, this w ay his resistance to the questions is r e m o v ed a nd his resistance gets loosened up. W h i le the patient w as in this state the examiner asked h im to r e m e m b er w h at occurred on the 2 2 nd D e c e m b e r, 1991; that is the day of the events. T he patient started at the s a me point that he h ad indicated on previous occasions, viz, that he departed f r om the place of w o rk after slaughtering a sheep a nd left for h o m e. He h ad s o me f ew drinks. A friend h ad asked to take h im h o me but he declined. W h en he reached h o me he s aw people w ho w e re enjoying s o me drinks. T h ey offered h im s o me but he declined to take any. T h en they started taunting h im that he h ad h ad so m u ch drink that he couldn't take any m o r e. He also, according to the witness r e m e m b e rs talking to a lady related to the deceased a nd he left for h o m e. W h at the witness found significant w as that before the abreaction treatment the patient w as not able to r e m e m b er any of the things w h i ch he n ow r e m e m b e r ed or referred to while under the induced state of drowsiness. He couldn't r e m e m b er these things while he w as in a conscious state. I underline this aspect of the matter as really revealing indeed a nd p ay particular h e ed to the i m p o r t a n ce of the p a m p h l et that I referred to before. T he witness w e nt further to indicate a nd e m p h a s i se that the patient couldn't recollect anything related to the offence a nd that he w as c o m p l e t e ly b l a nk regarding the offence. T he witness further, in a general w a y, stated that in v i ew of the past medical history of the patient a nd especially his version of having h ad drink - he w as alerted to the fact that s o me p e o p le in this sort of condition i.e. p e o p le w ho take drink for a long time, go into a blackout, but others recover f r om it, w h i le in the c a se of the a c c u s ed it a p p e a r ed that he w as completely blank. F or p u r p o s es of the ruling I am g o i ng to m a ke I am i n d e ed pleased to learn that the accused, if he u n d e r g o es medication, c an r e c o v er a nd that during treatment he w o u l d n 't be e x p o s ed to a ny of the factors w h i ch precipitated his a b n o r m al behaviour. That's as far as the evidence that I h a ve h e a rd g o e s. In the addresses, I h a ve b e en a s k ed by the Director of Public Prosecutions - a nd C o u n s el for the a c c u s ed sharing the s a me v i ew - that the condition of the a c c u s ed falls within the a m b it of Section 1 66 read w i th Section 1 7 2. S.166(I) reads as follows : "If, when the accused is called upon to plead to a charge, it appears to be uncertain for any reason whether he is capable of understanding the proceedings at the trial. So as to be able to make a proper defence, the procedure prescribed by s.172 shall be observed". S.172 subsection 2 reads as follows : "If the Court finds the person charged with an offence insane or mentally incapacitated pursuant to subsection 1, the judicial officer presiding at the trial shall record such verdict or finding, and shall issue an order committing such person to some prison pending the signification of the King's Pleasure". In brief this is what in fact I intend doing. I accordingly make record of the fact that the accused at the time of commission of the offence was mentally incapacitated to the extent that he would not be able to understand the proceeding and in turn make a proper defence. I order therefore that he be committed to some prison pending the signification of the King's Pleasure. It should be plain here that in fact even in the words of the Court of Appeal in T itso Matsaba vs Rex C. Of A.(CRI) 5\90 (unreported) this is not a conviction, the accused is not being said to be guilty of anything. The words in that case by Kotze J. A. concurred in by Browde J. A. and Leon J. A. at p a g es 4 a nd 5 are - T h us e x p o u n d e d, the c o n c l u d i ng portion of the special verdict r e a ds ' B ut (he) w as m e n t a l ly d i s o r d e r ed or defective so as n ot to be responsible a c c o r d i ng to l aw for the act or o m i s s i on c h a r g ed at the t i me w h en he did the act or m a ke the o m i s s i o n' " I m ay o n ly a dd for e m p h a s is that the a c c u s ed w as n ot m a de to p l e ad before the a b o ve c o n c l u s i on w as r e a c h e d. J U D GE 4th S e p t e m b e r, 1 9 96 For C r o wn : Mr Mdhluli For D e f e n c e: Mr Lesuthu Criteria for fitness to stand criminal trial F. J. W. Calitz, P. H. J. J. v an R e n s b u r g, H. Oosthuizen, T. Verschoor Objective. To identify criteria whereby triability can be determined. Design. psychiatric interview. Questionnaire survey. T he final rating w as decided on the basis of a structured Setting Oranje Hospital, Bloemfontein. Participants A total of 736 questionnaires w as sent to 176 judges of the S u p r e me Court, 4 80 magistrates and 32 attorneys-general and state advocates in South Africa and Namibia, and 33 psychiatrists and 15 clinical psychologists working in forensic psychiatric units in South Africa. With the information from the completed questionnaires, rating criteria were compiled T he rating criteria w e re applied by m e a ns of a structured interview to 100 persons referred in terms of section 77(1) of the Criminal Procedure Act 51 of 1977. A multiprofessional psychiatric team w as requested to evaluate the same 100 observandi independently A total of 298(40.5%) of the questionnaires were returned. F r om the data of the Results completed questionnaires, 19 legal items, 17 psychiatric items, 2 special laboratory tests and 2 psychosocial items were identified as the most important and clear diagnostic indications for the evaluation of triability. T he similarity between the findings of the researchers and those of the multiprofessional psychiatric team w as meaningful to 1% of significance. For the proper application of the criteria a cut-off point of 31 w as determined. A score of 31 of higher therefore indicates that a patient is unfit to stand trial, while a score of less than 31 indicates triability Conclusions T he application of the proposed final rating criteria as a single method of rating is at the very least just as reliable as the multiprofessional team in evaluating fitness to stand trial. The proposed criteria, used as a single rating instrument, are cost-effective in terms of time and staff avoid unnecessary hospitalisation and ensure that mentally ill accused will have a fair trial. The law demands that, to receive a fair trial, an individual must possess sufficient mental capacity to comprehend the nature and object of the proceedings and his o wn position in relation to those proceedings; he must also be able to advise counsel rationally in the preparation and implementation his o wn defence. If he is unable to do one or m o re of these, he is incompetent to stand trial' and usually transferred as a state patient. It has always been a problem to determine the triability of accused persons, mainly because of costly evaluation methods, c u m b e r s o me procedures, unnecessary hospitalisation and inadequate vague criteria. While the final decision on competency is a legal one, the courts often call u p on psychiatrists and, in s o me cases, psychologists for an advisory opinion. In m a ny jurisdictions, however, the court has consistently failed to inform the examining psychiatrist or psychologist what questions it wishes answered. E v en if a specific request for an evaluation of competency to stand trial is m a d e, it appears that the vast majority of psychiatrists and psychologists have no awareness of what legal test or criteria to apply. If they deal with the question at all, m a ny s e em to feel that the accused m u st be free f r om a ny s y m p t o ms of mental illness before he is triable. C o n c l u s i on T he conclusion of this study is that the application of the p r o p o s ed final rating criteria as a single m e t h od of rating is, at the very least, just as reliable as the multiprofessional t e am in evaluating w h e t h er s o m e o ne is fit to stand trial. T he proposed criteria, used as a single rating instrument for determining triability, h a ve the following advantages, viz.: (I) T h ey are cost-effective in terms of time, staff a nd finances; (ii) they avoid unnecessary hospitalisation, (iii) they could act as a screening m e t h o d; (iv) they will prevent a mentally ill accused from inappropriately being declared a state patient, (v) they ensure that mentally ill accused will have a fair trial, and (vi) they could be used in training other disciplines to evaluate triability.