R v Weazel [2013] NSWSC 856

Supreme Court New South Wales

Medium Neutral Citation: R v Weazel [2013] NSWSC 856 Hearing dates: 17 September 2013 Decision date: 21 June 2013 Jurisdiction: Common Law Before: Adams J Decision: 1. In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990, the matter is referred to the Mental Health Review Tribunal.

2. In accordance with s 14(b)(iii) of the Act, the accused is remanded in custody until the determination of the Mental Health Review Tribunal pursuant to s 16 of the Act.

3. The Registrar is directed to provide the following documentation to the Mental Health Review Tribunal within 14 days:

(a) a copy of this judgment;

(b) a copy of the orders made;

(c) a copy of the transcript of the proceedings;

(d) a copy of the psychiatric reports; and,

(e) a copy of the Crown case statement. Catchwords: CRIMINAL LAW – murder – unfitness to be tried – referred to the Mental Health Review Tribunal Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina (Crown) Cyril James Weazel (Accused) Representation: Counsel: P McGrath (Crown) M Austin (Accused)

Solicitors: Director of Public Prosecutions (Crown) Legal Aid New South Wales (Accused) File Number(s): 2011/242994

Judgment 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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: 8 Procedure where question of unfitness raised before arraignment (1) If the question of a person's unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. (2) The Court may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted. 10 Procedure on raising question of unfitness (1) If, in respect of an offence: (a) the Court determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted, or (b) the question of a person's unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence, the Court must (except as provided by this section), as soon as practicable after the determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence. (2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith. (3) Before conducting an inquiry, the Court may do any one or more of the following: (a) adjourn the proceedings, (b) grant the accused person bail in accordance with the Bail Act 1978, (c) remand the accused person in custody for a period not exceeding 28 days, (d) request the accused person to undergo a psychiatric examination or other examination, (e) request that a psychiatric report or other report relating to the accused person be obtained, (f) discharge any jury constituted for the purpose of those proceedings, (g) make any other order that the Court considers appropriate. (4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. "Expert Opinions In determining his unfitness for trial the accused was examined by Doctor Richard FURST, Forensic Psychiatrist, Doctor llana HEPNER, Clinical Neuropsychologist and Doctor Peter ASHKAR, Consultant Forensic Psychologist on behalf of the defence and by Doctor Yvonne SKINNER, Psychiatrist, on behalf of the Crown. General Mental State Examination Based on the accused's history, presentation and the testing conducted all experts seem to agree that he suffers from significant cognitive impairment (borderline impaired range) most likely in the form of alcohol-related brain damage to the frontal lobe. Assessment of The Accused's Fitness Dr Ashkar Dr Ashkar attempted to assess the offender's ability to understand the criminal process and to assist in his defence using a semi-structured interview based on the Presser criteria and reported as follows (par. 10 Report 17 September 2012): "Cyril was not comfortable answering these questions and many of his responses were off point. I formed the opinion there was little point in persisting with the interview and abandoned it prematurely…. 11. Based on the information I was able to collect, Cyril demonstrates knowledge of the charge that he is facing but he does not know the details that underpin the charge. He is able to recall much of his behaviour surrounding the alleged offence, but there are gaps in his memory due in part to alcohol intoxication at that time. Cyril demonstrates little understanding of legal strategy and process. He is unable to recall and/or identify material of importance to his defence. … 14. ... Cyril will be much better placed to assist in his defence when these gaps in his knowledge are filled. He has the intellectual capacity to process and identify important information but he will require assistance from his solicitor and the court to do so. Legal concepts will need to be carefully explained to support his understanding and reasoning about these matters and he will require more time than most people to process this information. His memory for language-based material is poor and important information will need to be written down for him". Dr Hepner Dr Hepner addressed the Presser criteria in her report of 26 October 2012 and found that Mr Weazel was able to understand the charges against him and had the capacity to plead to a charge, however his ability to understand the full legal implications of entering a plea was less clear. He understood the nature of the proceedings and the substantial effect of evidence against him, but his ability to follow the course of proceedings was less certain. His impairments in areas of memory, vocabulary knowledge, non-verbal reasoning, planning, organisation and his variable speed of information processing would be expected to impact on his ability to follow proceedings in a courtroom. Concerns were also raised with his ability to make out his defence, instruct and inform counsel of his version of the facts, and his capacity to decide what defence he will rely on. Dr Hepner was of the opinion that Mr Weazel did not meet all the Presser standards. Dr Furst Dr Furst considered Dr Hepner's opinion that Mr Weazel had the capacity to understand legal advice and stated as follows: "Based on his presentation and interview and failure to understand and/or remember a number of questions put to him, I doubt he would have the capacity to understand legal advice in a meaningful way, or apply any understanding to his current legal problems and the trial at hand." Dr Furst summarised his findings as to fitness as follows: "Mr Weazel has evidence of moderate-severe cognitive impairment, probably as a consequence of alcohol related brain damage and associated frontal lobe impairment. He was illogical, garrulous, disinhibited and easily irritated. He does not make sense and would struggle to answer basic questions of fact. He would be a vulnerable witness at trial, would probably struggle to attend to the court process or comprehend legal advice given to him, and would be unlikely to give coherent instructions to his legal counsel. He also lacks endurance. Having regard to the standards of Presser and Kesavarajah I was of the opinion that Mr Weazel was unfit to plead and unfit to be tried. Given his apparent cognitive impairment is likely to be of a permanent nature and nearly two years have elapsed since the alleged offences, I doubt he will become fit to be tried within the next 12 months." Dr Skinner Having summarised the accused's history, presentation and testing Dr Skinner expressed the following opinions: "In my opinion Mr Weazel is not fit to stand trial. He does understand the nature of the charges against him and has some understanding of the functions of the officers of the court and his legal council (sic). However, I was not able to determine whether he is fully aware of the seriousness of the charges. He has only a limited understanding of the functions of officers of the court and he might have delusional ideas in relation to his legal advisers, or might misunderstand their advice. I do not believe that he is capable of giving instructions to solicitors or properly understanding the meaning of evidence against him. I do not believe he would be able to follow proceedings in court." In relation to his prognosis Dr Skinner expressed the opinion that if he remained abstinent from alcohol,: "some improvement in his cognitive functions would be expected over the next twelve to eighteen months. However, I do not expect that he would improve sufficiently to become fit to plead and to stand trial in the foreseeable future, and not within the next twelve months." Appropriate Findings On The Evidence Section 14 of the Act provides that if following an inquiry an accused person is found unfit to be tried for an offence the Court must refer the person to the Mental Health Review Tribunal, and may make other orders including remanding an accused in custody." 1. 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. 2. 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. 3. 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. 4. The findings which I think are appropriate and which are agreed by the parties are as follows: 1. In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990, the matter is referred to the Mental Health Review Tribunal. 2. In accordance with s 14(b)(iii) of the Act, the accused is remanded in custody until the determination of the Mental Health Review Tribunal pursuant to s 16 of the Act. 3. The Registrar is directed to provide the following documentation to the Mental Health Review Tribunal within 14 days: 1. a copy of this judgment; 2. a copy of the orders made; 3. a copy of the transcript of the proceedings; 4. a copy of the psychiatric reports; and, 5. a copy of the Crown case statement.