S v SEROBA 2015 (2) SACR 429 (GJ)

General principles of liability — Criminal capacity — Temporary pathological incapacity — Proof of — Psychiatric evidence — Assessment of — Court to analyse logical reasoning — Conflict between evidence for state and evidence for accused — Court preferring evidence of state in circumstances where it had difficulty with defence psychiatrist’s diagnosis that accused was probably psychotic when he committed crimes a number of years earlier.

The accused was standing trial in the High Court on inter alia two counts of murder. The defence raised by the accused was one of pathological incapacity and it was suggested that the court should proceed in terms of s 78(6) of the Criminal Procedure Act 51 of 1977 and find the accused not guilty and detain him in a psychiatric hospital pending the decision of a judge in chambers. The crimes were allegedly committed in 2007, and when the accused was arraigned he was sent for observation to a psychiatric hospital, where he was examined by three psychiatrists. The accused was granted leave to see a psychiatrist of his choice, who after an evaluation drew up a report. The matter was then set down for hearing in June 2010. The state then requested that the accused be sent to the psychiatric hospital for further evaluation and a further report was drawn up by three psychiatrists. Because the accused’s psychiatrist had emigrated to Canada, he saw another psychiatrist of his choice, who evaluated him and drew up a report. After this another judge ordered that he be sent to a different psychiatric hospital for further report, which was compiled in 2015 by three other psychiatrists. It was the unanimous finding of all the psychiatrists at the psychiatric hospitals that the accused was fit to stand trial. At the trial the state led the evidence of a professor of psychiatry and the defence led the evidence of a psychiatrist. Both agreed that the accused was able to appreciate the wrongfulness of his actions. The professor was of the opinion that the accused was also able to act in accordance with such appreciation of the wrongfulness of his actions, whereas the psychiatrist for the accused stated that if the accused had on the day of the incident been suffering from a delusional disorder, he would not have been able to appreciate the wrongfulness of his actions.

Held, that the court needed to assess whether the varying opinions advanced were founded on logical reasoning. If the expert opinion could not logically be supported, then it had to fail.

Held, further, that there was a problem with the diagnosis in 2010, of the accused’s psychiatrist that he was probably psychotic when he committed the offences. She had not consulted with the accused in 2010 and had based her finding on the report of two other doctors. The psychiatrist herself agreed that the accused may also not have been psychotic in 2007. Due to the fact that neither the professor nor the eight other psychiatrists who observed the accused at the two psychiatric hospitals in 2007, 2011 and 2015 detected any delusional disorder or paranoia, the court was inclined to follow the findings of the professor rather than the findings of the accused’s psychiatrist.
Held, further, that the accused was able to appreciate the wrongfulness of his actions and that he had acted wilfully and with the intention in the form of dolus directus to shoot the two deceased.