S v McBride

• Jurisdiction: South Africa
• Judge: Mcewan J
• Judgment Date: 26 February 1979
• Citation: 1979 (4) SA 313 (W)
• Court: Witwatersrand Local Division

S v McBride
1979 (4) SA 313 (W)

1979 (4) SA p313

Citation	1979 (4) SA 313 (W)
Court	Witwatersrand Local Division
Judge	Mcewan J
Heard	February 19, 1979; February 20, 1979
Judgment	February 26, 1979

Flynote : Sleutelwoorde

Criminal law — Persons, liability of — Mental state of accused — When ss (6) and (7) of s 78 of Act 51 of 1977 applicable — What findings would have to be made in order that s 78 (7) should apply — Accused

1979 (4) SA p314

having killed his wife whilst suffering from endogenous depression — Accused capable of appreciating the wrongfulness of his act but unable to A act in accordance with an appreciation of such wrongfullness — Accused having recovered from such mental illness but recurrence possible — Section 78 (6) of Act applicable — Section 78 (6) peremptory.

Criminal procedure — Verdict — Accused committing murder whilst suffering from endogenous depression — Accused capable of appreciating wrongfulness B of his act but unable to act in accordance with an appreciation of such wrongfulness — Whether ss (6) or (7) of s 78 of Act 51 of 1977 applicable — What findings would have to be made in order that s 78 (7) should apply C — Section 78 (6) held to be applicable even though accused had recovered from mental illness — Section 78 (6) peremptory.

Headnote : Kopnota

By applying the statement in S v Mnyanda 1976 (2) SA 751 (A) at 766G and 767B - E and in R v Hugo 1940 WLD 285 st 289, made specifically in relation to psychopaths, it can be assumed that a general test can be formulated as follows:

(1)

If an accused person at the time of the offence by reason of mental D illness did not have the capacity of self-control necessary to restrain himself from committing the act which he knew to be unlawful, the case falls under ss (6) read with ss (1) (b) of s 78 of the Criminal Procedure Act 51 of 1977.

(2)

If, notwithstanding mental illness, the accused still possessed such capacity, but it was weakened by the mental illness, then the case will fall under ss (7) of s 78 of the Act.

E In determining on which side of the border-line the case falls, the Court will be guided by the specialist medical evidence, but will also take all the other evidence into account.

The accused had been charged with the murder of his wife. From the evidence it appeared that the accused had killed his wife whilst he was F suffering from endogenous depression. The expert medical evidence was that the accused was capable of appreciating the wrongfulness of his act but that he was unable to act in accordance with an appreciation of the wrongfulness of his act. Subsequent to the murder of his wife, the accused had recovered from his mental illness, but there was a possibility of it recurring. On behalf of the accused it was contended that a finding in terms of s 78 (7) of Act 51 of 1977 should be made and not a finding in terms of s 78 (6) which would require that the accused, although he had G recovered, be committed to a mental hospital or prison pending the signification of the State President's decision.

Held, that, in order that ss (7) should apply, a finding would have to be made that: (a) the accused appreciated the wrongfulness of his act in shooting his wife; and (b) he was capable of acting in accordance with such appreciation; and (c) consequently he was guilty of murder.

H Held, further, on the evidence, that the Court had to accept the evidence of the medical experts that the accused, although he could appreciate the wrongfulness of his act, could not act in accordance with such appreciation.

Held, further, that the proper verdict would be one in terms of s 78 (6) of Act 51 of 1977.

Held, further, that the terms of s 78 (6) were peremptory and the Court had to issue an order that the accused be detained in a mental hospital or prison pending the signification of the State President's decision, although a recommendation would, in the particular circumstances, be made that consideration be given at the earliest possible time to the question of the release of the accused from detention subject to suitable conditions.

1979 (4) SA p315

Case Information

Criminal trial on a charge of murder. The facts appear from the reasons for judgment.

E Marais for the State.

G Hoffmann for the accused. A

Cur adv vult.

Postea (February 26).

Judgment

McEwan J:

B The accused is charged with the offence of murder. It is alleged that on or about 7 October 1977 and at or near Berea in the district of Johannesburg he did unlawfully and intentionally kill Josephine Ethel McBride, a white female. To this charge the accused pleaded guilty. However it was indicated by counsel for the State that s 78 (6) read with C s 78 (1) of the Criminal Procedure Act 51 of 1977 ("the Act") might apply. That sub-section reads as follows:

"If the court finds that the accused committed the act in question and that he at the time of such commission was by reason of mental illness or mental defect not criminally responsible for that act, the court shall find the accused not guilty by reason of mental illness or mental defect, D as the case may be, and direct that the accused be detained in a mental hospital or a prison pending the signification of the decision of the State President."

In the light of that possibility the Court directed that a plea of not guilty be entered.

Certain basic facts are not disputed. They are:

(1)

On 7 October 1977 the accused shot the deceased who was his wife.

(2)

E He shot her in the flat in Berea, Johannesburg, where they were living.

(3)

He used a Browning pistol which he had had in his possession for 10 to 15 years.

(4)

The deceased died as a result of the gunshot would so inflicted.

F The accused also made it clear in his evidence that he intended to kill his wife.

The accused was brought before a magistrate on 3 November 1977. After he had heard the evidence of a district surgeon who had examined the accused, the magistrate, acting in terms of s 78 (2) of the Act made an order in terms of s 79 (2) read with s 79 (1) (b) committing the accused to G Sterkfontein Hospital for observation. At the hospital he was under observation from 3 November 1977 until 13 January 1978 under the supervision of Dr Luiz, who was then the principal psychiatrist of the hospital. On 7 December 1977 the accused was examined by three psychiatrists. They were Dr Luiz, who was the psychiatrist appointed by H the medical superintendent of the hospital in terms of sub-para (i) of s 79 (1) (b); Dr Shubitz, the psychiatrist appointed by the Court under para (ii); and Dr Levinson, the psychiatrist appointed on behalf of the accused, under para (iii). The three psychiatists prepared a joint report. It is a short report. I shall read the whole of it.

"Psychiatric report in terms of s 79 (4) (a) of the Criminal Procedure Act.

Name: R T McBride

Place of examination: Sterkfontein Hospital, Krugersdorp.

A.

Description of nature of the enquiry

The examination was carried out by three registered psychiatrists

1979 (4) SA p316

McEwan J

1.

Dr C Shubitz

2.

Dr B Levinson

3.

Dr M A Luiz

A Separately and independently examined and reported on the accused at a meeting held on 7 December 1977.

The nature of the enquiry covered chronologically the following periods:

From 3 November 1977 until 7 December 1977.

The purpose of the interviews was a psychiatric assessment.

B.

The accused is suffering from an endogenous depression manifest in B depressed effect which has resulted in impaired judgment. He is at present not certifiable in terms of the Mental Health Act.

The opinion was unanimous.

C.

He is capable of understanding the court proceedings and making a proper defence.

D. (a)

In the opinion of Drs Shubitz, Levinson and Luiz the accused could appreciate the wrongfulness of his act.

(b)

C All three psychiatrists agreed that he could not act in accordance with an appreciation of the wrongfulness of his act.

We base this opinion on the fact that he was suffering from endogenous depression. We regard him therefore as not being criminally responsible for the act in question (as laid down in s 78 (1) (b)."

D According to Dr Shubitz and Dr Levinson endogenous depression is commonly accepted as a state of psychosis. Attacks normally last for six to nine months if the patient is not treated. They are more likely to occur in a person of advancing age.

If the report and findings of the psychiatrists are accepted the Court E will have no option but to order the detention of the accused in a mental hospital or prison pending the signification of the State President's decision. That statement is, however, subject to an argument which will be mentioned later.

Dr Luiz stated that a State President's patient will normally be detained F in a mental hospital for a minimum of two to four years depending upon whether there are any recurrences of his mental illness or upon his response to treatment, as the case may be.

It was submitted on behalf of the accused that such an outcome of the present trial would be most unfortunate in his particular circumstances. Since his discharge from Sterkfontein Hospital the accused has recovered G from the mental illness of endogenous depression. It appears that he was released on bail. According to the State the magistrate made a mistake in granting bail. In all the circumstances of this case it may, however, have been a fortunate mistake. The accused found and still has employment as stock controller for a large motor firm. He holds a responsible position H which entails exacting and meticulous work. His salary is R425 per month and he has the use of a company car. He...