R v Weazel

The accused, Cyril James Weazel, is charged with one count of murder allegedly occurring on 27 July 2011; the victim being his then de facto partner, Nancy Dynevor. In the alternative he is charged with causing her grievous bodily harm with intention to cause grievous bodily harm. The accused was brought up for arraignment in this Court in accordance with the usual practice, but Mr Austin of counsel for the accused raised as a preliminary question the fitness of the accused to be tried. Accordingly, the matter was listed for a hearing to determine that question.

The facts relied on by the Crown are set out in the Crown case statement which has been filed, and to which no detailed reference need be made. It is fair to say I think that the prosecution case comprises a history of violence to a greater or lesser extent allegedly inflicted by the accused on the victim over some hours whilst they went from place to place in or near Mount Druitt, ultimately returning to their shared boarding house room at Redfern. The case is essentially a circumstantial one relying on the alleged violence over this period, including assaults which occurred after their return to the Redfern premises, together with alleged threats. The Crown case refers to a conversation between the accused and ambulance officers who were called to the site after the victim died in which he claimed she received her injuries whilst fighting girls at Mount Druitt. In an interview with police he stated, on the other hand that after their return home to Redfern that night the deceased kept “whacking her head” against the wall for possibly 5 to 10 minutes. There is no doubt that the accused and, for that matter, the deceased were very heavily intoxicated.

Although a pulse was restored by the ambulance officers, the deceased sustained irreversible brain damage as a result of the period without adequate delivery of blood and oxygen to her brain. The cause of death was cardiac arrest because of multiple blunt force injuries and acute ethanol, or alcohol, intoxication.

The picture of physical injuries, however, is complex, including the likelihood that fractures to her ribs may have been caused by vigorous and prolonged chest compressions in an attempt at resuscitation. However, given the large number of blunt force injuries, which I do not need to describe, there is powerful objective evidence that the major contributing cause of death were blows inflicted by some person, rather than self-inflicted injuries. On the Crown case, the only candidate for that conduct is the accused.

I have set out these matters in a little detail to indicate that the trial, should it occur, will not be simple or straightforward. Witnesses as to the preceding events, of which there are a number, will need to be cross-examined; and for that to occur the accused must be in a position to instruct his counsel, as well as to his own actions, intents and understanding.

I have mentioned that the accused was heavily intoxicated at the relevant time, which adds a complicating feature to his ability to mount a defence, if he has one, to the Crown case. Mere amnesia or confusion about events relevant to a trial will not usually render an accused unfit for trial, even if that confusion or amnesia derives from some brain damage or psychiatric condition. It will usually be more significant to assess the understanding of the accused of the trial process itself: the role of his or her counsel; the role of prosecuting counsel and those of the judge and jury; and, more generally, the nature of the trial process designed to establish whether he or she be guilty or otherwise.

When a question of fitness to stand trial is raised the procedure is governed by ss 8 and 10 of the Mental Health (Forensic Provisions) Act 1990 which relevantly state:

Section 11 of the Act provides that the question of a person’s unfitness to be tried for an offence is to be determined by the judge alone and, s 12, that this is not to be conducted in an adversarial manner and that the onus of proof does not rest upon any particular party. Indeed, that is the way in which the present inquiry has been conducted.

The accused has been examined by two highly experienced forensic psychiatrists, a psychologist and a neuropsychologist, the latter having conducted, amongst other inquiries, appropriate psychometric testing. Their reports have been tendered by agreement between the parties. The Crown has submitted that these reports demonstrate that the accused is unfit to be tried, a submission which Mr Austin for the accused also makes. However, it is for the Court to determine whether the accused is unfit and it cannot be a matter decided by consent.

The test for examining unfitness to be tried, as has frequently been stated, emerges from the judgment of Smith J in R v Presser [1958] VR 45. Whilst the considerations identified by his Honour have often been referred to with approval and, with respect, constitute a useful guide, they are not to be regarded as legislative provisions. As his Honour himself said at p. 48, the test needs to be applied “in a reasonable and commonsense fashion”, and went on to say that, although certain minimum standards need to be satisfied before an accused can be tried without unfairness or injustice, it is not necessary that the accused “not have the mental capacity to make an able defence” (emphasis added). Nor is it necessary that the accused have sufficient capacity to act wisely or in his own best interests. The minimum requirements include the ability to understand the crime with which he is charged and, of course, its elements, the ability to plead to the charge and exercise the right of challenge, to understand generally the nature of proceedings, namely that it is an inquiry as to whether he did what he is charged with, able to follow the course of proceedings in a general sense, understand the substantial effect of evidence that may be called, give necessary instructions to his counsel, including his version of the facts, and, if necessary, being able to tell the Court about those facts. He must also understand the defences that might be available to him.

As I have mentioned, to take an extreme case, an amnesic accused will, ex hypothesi, not be able to recall the relevant events. Indeed, the accused here suffers to a greater or lesser extent, as the doctors found on examination, from considerable confusion and memory loss in relation to them, although his assertions to the ambulance officers and the police might suggest that he, at least at that time, recalled more than he now does.

In this case, it seems to me that the crucial questions are the extent to which the accused is able to understand and participate in the trial, especially as to the functions of the various persons involved in its conduct. The doctors all agree that having, regard to the accused’s history, presentation and testing he suffers from significant cognitive impairment (borderline impaired range), most likely in the form of alcohol related brain damage to the frontal lobe.

Set out below are more or less the quotations in the Crown’s submissions which seem to me to fairly set out the reports, as I read them.

The accused is in custody at the present time. It is likely, of course, that this present finding as to unfitness will necessarily affect the other proceedings, but I do not need to consider this question for present purposes.

The accused was arrested and charged with inflict grievous bodily harm with intent on 27 July 2011. He was then bail refused for a period of time up until 15 September 2011. From that date he was on bail until he was arrested and charged for separate robbery offences on 18 May 2013. Upon the death of the victim the charge of 27 July 2011 was changed to murder.

Section 14 of the Act provides that if following an inquiry the accused person is found unfit to be tried for an offence the court must refer the person to the Mental Health Review Tribunal and make other orders, including remanding an accused in custody.

The findings which I think are appropriate and which are agreed by the parties are as follows: