S v CHAUKE 2016 (1) SACR 408 (SCA)


Trial — Mental state of accused — Enquiry in terms of ss 77, 78 and 79 of Criminal Procedure Act 51 of 1977 — Nature of enquiry — Psychiatrist reporting that accused not suffering from any mental illness or defect after unspecified examination lasting just one day — Such not meeting requirements set out in ss 79(3) and (4) — Report to be based on holistic assessment of all relevant facts and circumstances.


In the appellant’s trial in the High Court on two counts of murder his defence counsel requested that he be examined by a psychiatrist in order to determine his mental accountability at the time when the offences were committed. The matter was adjourned for this purpose. On resumption of the trial, a report drawn up by his psychiatrist after an examination conducted in one day — in the presence of four colleagues — was handed in to court. The report stated that they found no acute or residual symptoms of a mental illness and concluded that the appellant was fit to stand trial and that there was no evidence that he was mentally ill at the time of the alleged offence. It did note, however, that the appellant had previously been admitted to a psychiatric hospital and periodically received antipsychotic medication.

After the appellant testified, the court questioned him and asked him inter alia whether during an ‘attack’ of his disorder he understood what he was doing. The appellant replied in the negative. The court then called the investigating officer regarding the appellant’s mental capacity, who testified that his impression was that there was nothing wrong with the appellant. Relying on the findings of the report, the court rejected the appellant’s defence that he did not know or remember anything about the offences, and convicted him of the two counts of murder.

On appeal it was argued that the court had failed to comply with the provisions of ss 77 and 79 of the CPA and should have referred the appellant for observation in terms of those provisions.

Held, that the record reflected a concern that the appellant might, at the time of the commission of the offences, have been suffering from a mental illness or defect. In such circumstances the court ought to have acted in terms of s 78(2) and directed that the matter be enquired into and reported on in accordance with the provisions of s 79.

Held, further, that the report by the psychiatrist did not meet the requirements set out in ss 79(3) and (4) and was of no assistance for the purposes of an enquiry into the appellant’s mental state. It was silent on the nature of the tests conducted and the basis upon which the conclusions were reached, and the trial court was accordingly not in possession of all relevant facts regarding the appellant’s mental condition. Such a report ought to be based on a holistic assessment of all such relevant facts and circumstances and include interviews with persons other than merely the medical personnel conducting the assessment.

Held, further, that the court had erred in attempting to seek assistance from the investigating officer, who was not an expert in the field of mental disease, and that this constituted an irregularity. The appeal was upheld and the convictions and sentences were set aside.


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