R v Cyril Weazel [2014] NSWSC 1664

Supreme Court New South Wales

Medium Neutral Citation: R v Cyril Weazel [2014] NSWSC 1664 Hearing dates: 22, 23 and 24 September; 9, 10, 13 and 15 October 2014 Decision date: 25 November 2014 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: The accused is not guilty of both counts on the indictment. Catchwords: CRIMINAL LAW - special hearing - counts of murder and causing grievous bodily harm with intent - inadequate evidence to establish causation or intent Legislation Cited: Mental Health (Forensic Procedures) Act 1990 Category: Principal judgment Parties: Regina (Crown) Cyril Weazel (Accused) Representation: Counsel: P McGrath SC (Crown) M Austin (Accused) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2011/242994 Publication restriction: Nil

Judgment

Introduction 1In the early hours of the morning of 27 July 2011 the deceased, Nancy Dynevor, was taken by ambulance from a boarding house in Redfern to the Royal Prince Alfred Hospital at Camperdown NSW. There, despite various attempts to resuscitate her, she was pronounced dead at 11.55 am. A post mortem examination revealed that she had suffered multiple blunt force injuries, which were the principal contributing causes of her death. Later that day the accused, Cyril Weazel, who was the partner of the deceased, and who had been with her throughout the time before she was hospitalised, was arrested and charged with her murder. 2Some time later a question arose as to the accused's fitness to be tried, and an enquiry as to this matter was conducted pursuant to the Mental Health (Forensic Procedures) Act 1990 ("the Act"). On 17 September 2013 Adams J of this Court found the accused unfit to be tried and ordered that he be detained. Pursuant to s 14 of the Act his Honour referred the matter to the Mental Health Review Tribunal ("the tribunal"). On 16 December 2013 the tribunal determined, pursuant to s 16 of the Act, that it was unlikely that the accused would become fit to be tried within 12 months after the finding of unfitness. The Director of Public Prosecutions ("DPP") was notified of this determination. On 18 January 2014 the DPP advised the Court, pursuant to s 19 of the Act, that he intended to proceed with the charge of murder, and an alternative charge of causing grievous bodily harm with intent to do so. A special hearing was therefore required to be conducted pursuant to s 19 of the Act. 3The special hearing commenced before me on 22 September 2014. No prior election had been made by either party to have the hearing determined by a jury. Accordingly, pursuant to s 21A of the Act, the hearing proceeded before myself alone. The accused was arraigned on two charges: first, that on 27 July 2011 he murdered Nancy Dynevor; alternatively, that between 15 and 28 July 2011 he caused grievous bodily harm to Nancy Dynevor with intent to cause grievous bodily harm. In accordance with s 21(3) of the Act the accused was taken to have pleaded not guilty to both charges. As required by the Act, the accused was represented by a legal practitioner, namely Mr Mark Austin of counsel. 4I think it appropriate at this stage to briefly indicate the principal legal issues which arose at the hearing, so that my description of the events which preceded the death of the deceased can be seen in context. In relation to the murder charge, the first issue was that of causation, namely whether the Crown has proved, beyond reasonable doubt, that it was an act or acts of the accused which substantially contributed to the death of the deceased. If the Crown cannot establish that matter, then obviously the accused must be found not guilty of murder. If the Crown succeeds on that issue, then a further significant issue arises relating to the accused's intention at the time of inflicting the fatal injuries. The Crown does not suggest that he intended to kill the deceased, but rather that he intended to really seriously injure her. A finding adverse to the Crown on that issue would almost certainly lead to an acquittal. Finally in relation to the first charge, if the Crown were to succeed on both those issues, so that the verdict would otherwise be guilty of murder, the partial defence of substantial impairment was raised, which would reduce the appropriate verdict to one of manslaughter. And if the Crown cannot succeed in relation to the first charge, the second charge requires consideration, namely that the accused caused grievous bodily harm to the deceased with intent to do so. 5I should also say at the outset that the mental condition of the accused which led to the finding that he was unfit to be tried was not such as could give rise to a defence of mental illness. The evidence which was before Adams J, some of which was also tendered before me, indicated that he had significant cognitive impairment, almost certainly caused by alcohol related brain damage and associated frontal lobe impairment. In this regard, he gave the medical experts a history of having commenced drinking alcohol at the age of 13 or 14, and consuming large quantities of alcohol ever since. He is now 46 years old.