R v Cox
[2006] SASC 188
•27 June 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v COX
Criminal Trial by Judge Alone
[2006] SASC 188
Reasons for the Verdict of The Honourable Justice White
27 June 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - TRIAL HAD BEFORE JUDGE WITHOUT JURY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION
Accused pleaded not guilty to offence of murder - election to be tried by judge alone - where accused pleaded mental incompetence pursuant to s 269C of the Criminal Law Consolidation Act 1935 (SA) - whether accused mentally unfit to stand trial pursuant to s 269H of CLCA -accused admitted objective elements of offence - whether subjective elements of the offence proved.
Held: accused mentally fit to stand trial - accused mentally competent at the time of the offence - defence of provocation not established - objective and subjective elements of offence of murder proved beyond reasonable doubt - accused found guilty of murder.
Criminal Law Consolidation Act 1935 (SA), s 269A, s 269C, s 269D, s 269E, s 269G, s 269H, s 269I, s 269J, s 269WA, referred to.
R v W-B (1999) 73 SASR 45; R v Maddeford [2000] SASC 411; R v Leach [2000] SASC 321; R v Berlingo [2003] SASC 109; M'Naghten's Case (1843) 10 Cl & F 200; 8 ER 718; Sodeman v The King (1936) 55 CLR 192; R v Porter (1933) 55 CLR 182; Stapleton v The Queen (1952) 86 CLR 358; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; Attorney-General v Brown [1960] AC 432; R v Radford (1985) 42 SASR 266; R v Harm (1975) 13 SASR 84; R v Byrne [1960] 2 QB 396; R v Telford (2004) 89 SASR 352; The Queen v R (1981) 28 SASR 321; R v Cooke (1985) 39 SASR 225; R v Voukelatos [1990] VR 1; Stingel v The Queen (1991) 171 CLR 312, considered.
R v COX
[2006] SASC 188Criminal Trial (By Judge Alone)
WHITE J
The accused is charged with the murder of Nicole Sheree Mazey on 12 September 2003 at Blakeview.
The prosecution case is that on the evening of Friday, 12 September 2003, the accused assaulted Ms Mazey violently, in particular by striking and kicking her. Ms Mazey sustained serious injuries from which she died in the Royal Adelaide Hospital on 19 September 2003.
The accused pleaded not guilty and raised a defence of mental incompetence to commit the offence. That defence having been raised, the question of the accused’s mental competence to commit the offence of murder was separated from the remainder of the trial (CLCA s 269E(1)).
At the conclusion of the trial of the accused’s mental competence, I stated my finding that the accused was mentally competent to commit the offence and said that I would provide my reasons later. This judgment includes my reasons for that finding.
During the course of the trial of mental competence, the question of the accused’s mental fitness to stand trial was raised. I directed that an investigation of that fitness take place and, at the request of the accused’s counsel, Mr Mead, ordered that a neuropsychological assessment of the accused be made. At the conclusion of the investigation into the accused’s mental fitness to stand trial, I indicated my satisfaction that the accused was mentally fit to stand trial, and said that I would provide reasons later. This judgment also includes my reasons for that conclusion.
Finally, this judgment includes my reasons and decision concerning the subjective elements of the offence and the defence of provocation.
The Objective Elements
On the application of the accused (the prosecution not objecting), I directed that the trial of the objective elements of the offence should proceed first. That meant that the trial proceeded in accordance with s 269G of the CLCA.
On the trial of the objective elements, the accused admitted that on 12 September 2003 at Blakeview he had assaulted Ms Mazey causing injuries which were the substantial cause of her death. On the basis of that admission, it was submitted by the accused that the Court could be satisfied, beyond reasonable doubt, that the objective elements of the offence were established. Being so satisfied, I recorded a finding that the objective elements of the offence were established (s 269G A(2)).
Mental Competence - Introduction
I then directed that the Court would proceed to hear relevant evidence and representations on the question of the mental incompetence of the accused to commit the offence (s 269G B(1)(a)).
Section 269C of the CLCA provides:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
Section 269D of the CLCA requires that a person’s mental competence to commit an offence is to be presumed unless found otherwise. The effect of that section and of the provisions of Part B(3) of s 269G is that the accused bears the onus of proving on the balance of probabilities that at the time of the alleged offence he was mentally incompetent to commit the offence.[1]
[1] R v W-B (1999) 73 SASR 45 at 48, [1999] SASC 147 at [6], per Bleby J. See also R v Maddeford [2000] SASC 411 at [8], per Nyland J; R v Leach [2002] SASC 321; R v Berlingo [2003] SASC 109 at [74].
The accused had previously foreshadowed a defence of mental incompetence. He had provided a draft report of a forensic psychiatrist, Professor Mullen, in relation to his mental competence. On 3 February 2006, Besanko J ordered, pursuant to s 269WA of the CLCA, that two psychiatrists, Dr Raeside and Dr Nambiar, examine the accused and that each prepare a report to the Court containing their diagnosis of the accused’s condition, if any, and their opinion as to whether any condition so found brought the accused within s 269C of the CLCA. Dr Raeside prepared a report dated 14 March 2006, and Dr Nambiar a report dated 7 April 2006. A second draft report of Professor Mullen (undated) was provided on 20 April 2006. It was not suggested that any further examination of the accused by Dr Raeside or by Dr Nambiar was necessary in the light of the final report of Professor Mullen. That meant that it was not necessary for the hearing to be adjourned for psychiatric examination (s 269GB(1)(b)).
Although the accused had the onus of proving, on the balance of probabilities, his mental incompetence, Ms McDonald who appeared for the DPP, commenced the trial of the accused’s mental competence by leading the evidence from the non-psychiatrist witnesses relevant to this subject. The evidence of a large number of witnesses was in documentary form. The accused consented to the tender of their written statements, and did not require their attendance for the purposes of cross-examination. Oral evidence was led from eight witnesses. Mr Mead then led evidence from the accused, Mr Reid (a neuropsychologist) and from Professor Mullen. Ms McDonald then led evidence from each of Drs Raeside and Nambiar.
I do not think that it is necessary for me to refer expressly to the evidence of all of the “lay” witnesses nor to all the incidents in the accused’s past to which they referred. I indicate, in case it should become necessary later, that I regarded their evidence generally as reliable.
The accused suffers from multiple sclerosis. That condition was first diagnosed in 1999 but it is likely that the accused was experiencing symptoms of that condition well before 1999.
The accused and Ms Mazey had lived continuously in a de facto relationship from July 2000. In the months before her death, the accused developed suspicions that Ms Mazey had been unfaithful to him both at the time of the commencement of their relationship, and during its continuance. The nature and validity of those suspicions will be considered in more detail later. For present purposes, it is sufficient to say that the suspicions appear to have been wholly unfounded. Mr Mead accepted that there was no evidence supporting the belief of the accused of infidelity by Ms Mazey, and there is a good deal of evidence suggesting its existence to be improbable.
The defence case was that the accused suffers from a psychological condition known as morbid jealousy with delusions of infidelity. This is a recognised mental illness and constitutes a mental impairment for the purpose of s 269C. Changes in the brain of the accused caused by his multiple sclerosis are said to be a cause, perhaps the cause, of the morbid jealousy.
Next, it was contended that the accused did not know that his conduct which resulted in Ms Mazey’s death was wrong, and was unable to control that conduct. Finally, it was contended that that lack of knowledge and incapacity to control his conduct was “in consequence of” the condition of morbid jealousy with delusions of infidelity.
Lack of Knowledge that Conduct Wrong: Approach
Under the common law, accused persons established the defence of insanity if they established that, at the time of committing the act, they were “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act [they were] doing; or, if [they] did know it, that [they] did not know what [they were] doing was wrong”.[2]
[2] M’Naghten’s Case (1843) 10 Cl & F 200, 8 ER 718; Sodeman v The King (1936) 55 CLR 192.
An accused did not understand the nature and quality of the act where the accused was “prevented by mental disorder from knowing the physical nature of the act he [was] doing …”.[3]
“In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object. In such a case he would not know the physical nature of what he was doing. He would not know the implications and what it really amounted to. … He [w]ould not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that is involved in the destruction of life.”[4]
[3] R v Porter (1933) 55 CLR 182 at 188.
[4] Ibid.
Under the second limb of the M’Naghten Rules, the question was whether the accused knew that their conduct was morally wrong, ie, “wrong according to the ordinary standards adopted by reasonable men”.[5] The summing up of Dixon J reported in R v Porter explained the concept of knowledge of “wrongness” as follows:
The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.”[6]
[5] Stapleton v The Queen (1952) 86 CLR 358 at 375 per Dixon CJ, Webb and Kitto JJ; R v Porter (1933) 55 CLR 182 at 190 per Dixon J.
[6] (1933) 55 CLR 182 at 189-90.
It is reasonable to suppose that the alternatives in s 269C(a) and s 269C(b) are to be given the same meaning as the common law counterparts. As was pointed out by Duggan J in Question of Law Reserved (No 1 of 1997):
The test for mental incompetence draws heavily on common law concepts and expressions, and although the procedures introduced by the legislation represent a marked departure from that which was in existence before the Act was passed, the previous law is of some assistance in determining the legislative intention in introducing some of the new procedures.[7]
[7] (1997) 70 SASR 251 at 258.
Inability to Control Conduct: Approach
Under the common law, proof of an inability to control the relevant conduct did not, by itself, make out the defence of insanity.[8] A disease of the mind depriving accused persons of the power of controlling their actions may have been evidence that the accused did not know the nature and quality of those actions, or did not know that they were wrong, but it was not, of itself, proof of insanity in the requisite sense. Thus, proof that the accused was acting under an uncontrollable impulse was insufficient, by itself, to make out the defence of insanity.
[8] Sodeman v The King (1936) 55 CLR 192; Attorney-General v Brown [1960] AC 432.
The inclusion of sub-paragraph (c) in s 269C indicates that a marked departure from the common law was intended. An inability to control the relevant conduct which is a consequence of a mental impairment will amount to mental incompetence to commit the offence. There may be a question as to the full scope of matters encompassed by the expression “unable to control the conduct”. On one view, it could extend to both willed and unwilled acts. It might, for example, extend to include acts committed in a state of dissociation. But the existence of such a state is often evidence indicating a lack of voluntariness of the conduct. Voluntariness is an element on which the prosecution has the onus of proof as it is defined to be one of the subjective elements of an offence.[9] That suggests that s 269C is not concerned with an inability to control conduct of this type.
[9] See the definition of “subjective element” in s 269A(1).
For the purposes of this case, I do not think it necessary to canvass this issue in detail. There was no suggestion that the accused was in a dissociated state. I proceed on the basis that the accused would establish an inability to control the relevant conduct if he could establish an inability to refrain from a willed action. Such an inability would exist if the accused had an uncontrollable impulse to carry out the actions which caused the fatal injuries to Nicole Mazey or if, although the relevant actions were willed, the mind of the accused was not able to control them.[10] Put slightly differently, the question is whether the accused lacked the capacity to exercise willpower to control his physical acts.[11]
[10] R v Radford (1985) 42 SASR 266 at 273 per King CJ; R v Harm (1975) 13 SASR 84 at 102 per Bright J.
[11] Cf the judgment of Lord Parker CJ in R v Byrne [1960] 2 QB 396 at 403.
The conduct which the accused must prove he was unable to control is the conduct comprising the objective elements of the offence, ie, the conduct comprising the actual assault on Ms Mazey resulting in her death. It is not sufficient for him to establish an inability to control his jealousy, or the manifestations of that jealousy such as his persistent suspicion and questioning of Ms Mazey, the checking of text messages on her mobile telephone, the checking of her clothing and the checking of her movements. I agree with the comments of Perry J on this topic in an analogous situation in R v Telford.[12]
[12] [2004] SASC 248 at [113]-[121]; (2004) 89 SASR 352 at 364.
I also proceed on the basis that what s 269C(c) requires is an actual inability to control the relevant conduct. Putting to one side those cases in which a partial inability to control the conduct is nevertheless so substantial that it can be said that there is no ability at all to control the relevant conduct, an impaired ability to control conduct is not sufficient for an accused to come within s 269C(c).
Background of the Accused
At the time of Ms Mazey’s death, the accused was 32 years old. He left school at the age of 16 and had had a number of varied employments before ceasing in the workforce altogether in 1999 following the diagnosis of multiple sclerosis.
In about March or April 1998 the accused commenced a relationship with a female (“LMB”). The relationship continued until early July 2000. As I understand it, the accused and LMB did not ever live as de facto husband and wife. Each maintained a separate home but they did spend considerable time together. A child (“ALC”) was born in January 1999. The accused had doubted his paternity of ALC but, after her birth, he accepted that he was her father and took an active part in her parenting. ALC was four years and seven months old at the time of Ms Mazey’s death.
The accused commenced his relationship with Ms Mazey almost immediately after the termination of his relationship with LMB. After a custody and access dispute in the Family Court, arrangements were made for the accused to have access to ALC. From the beginning of 2003 ALC stayed with the accused and Ms Mazey on two weekends out of every three (from 5.00 pm Friday to 5.00 pm Sunday).
The neuropsychological assessment of the accused by Mr Reid indicated that prior to the onset of his multiple sclerosis, the accused was a person of average intellect. The lesions of the brain produced by the multiple sclerosis have, however, resulted in some cognitive impairment (but not affecting the accused’s overall intellectual level). Mr Reid assessed that impairment as being “mild but significant”. The impairment relates to the accused’s ability to process information. It affects his memory, in particular his ability to “store” and learn new information, but not his ability to “retrieve” information already stored. His verbal fluency is also affected as the accused cannot always locate the precise word which he wishes to use. His ability to think quickly and to absorb information is also slightly impaired. The changes in the accused’s brain have not, however, resulted in any disinhibition in his behaviour.
I will refer to the evidence of Mr Reid later in my reasons concerning the mental fitness of the accused to stand trial. I record, however, at this stage, my satisfaction that the mild cognitive impairment assessed by Mr Reid did not compromise his ability to give evidence in the trial.
The Relationship of the Accused with Ms Mazey
Ms Mazey was 21 years old at the time of her death. From approximately May 2003 she had worked as an employee of Direct Personnel in a Telstra sales office. Prior to that time she had worked for approximately three years in a Wendy’s Icecream store, including working as a full-time manager of one store. From the age of three until she was about 18, Ms Mazey had been actively involved in callisthenics. Ms Mazey is described by her mother and father (and others) as having been of a generally vivacious nature and as having enjoyed good health apart from some low back pain attributed to her callisthenics.
The relationship of the accused with Ms Mazey, which commenced in July 2000, continued until her death. They became engaged in December 2001. It is very evident that Ms Mazey genuinely loved the accused. I base that conclusion on the evidence of Ms Mazey’s mother, her brother and of her friends, Mr and Mrs Reidy. It is also evident from notes written by Ms Mazey to the accused during the few weeks prior to her death.
I am also satisfied that the relationship of the accused and Ms Mazey was characterised by his domination of her, and by his abuse of her, both physical and verbal. There is a good deal of evidence indicating that Ms Mazey was a victim of domestic violence at the hands of the accused. I indicate that I accept the evidence on this topic which I summarise in the following paragraphs.
In November or December 2002 LMB observed a bruise on Ms Mazey’s left cheek. When she remarked on it, the accused, who was also present, said: “that’s what you get when you roll onto someone’s elbow, isn’t it Cole?” Ms Mazey laughed it off and agreed with the accused.
On another occasion, LMB observed a bruise on Ms Mazey’s left upper arm. There was no discussion on this occasion as to its cause.
Other witnesses observed marks and bruises on Ms Mazey. Her brother Scott said that on five or six occasions he had noticed fresh bruises on her upper arms and shoulders. He was told by Ms Mazey that they had been caused by bumping into objects. The times when Scott saw these bruises was unspecified, but must have been in the period July 2002 and March 2003.
The operators of shops adjacent to the Wendy’s store at which Ms Mazey worked also noticed injuries: sometimes bruises to her neck, face and arms, on one occasion a black eye, and another occasion two black eyes. Ms Mazey explained to them the single black eye by saying “I walked into a door”. She attributed the two black eyes to the accused having rolled over in his sleep and having hit her accidentally. On another occasion, Ms Mazey was observed to have four bruises on one side of her neck and a single bruise on the other, consistent with having been gripped tightly around the neck. Ms Mazey attributed these bruises to having ridden her bike through some bush. Ms Mazey proffered other explanations for the bruises and marks from time to time, including having been bumped while moving furniture, and having hit a door. Although provided by one of these proprietors with contact details for the Police Family Violence Unit, Ms Mazey denied having been hit by the accused.
After Ms Mazey commenced with Direct Personnel at the Telstra sales office in May 2003, several of her fellow workers observed injuries. Five reported seeing marks on Ms Mazey’s face and neck. It is possible that some of those marks were attributable to a skin condition. Four reported observing bruised or swollen eyes or a black eye. One reported observing bruising to the neck consistent with Ms Mazey having been gripped tightly around the neck. Two fellow workers who worked closely with Ms Mazey overheard, on several occasions, telephone conversations between Ms Mazey and a person who I find was the accused in which Ms Mazey said words to the effect “I have not told anybody” and “No one can hear me”. I consider it very probable that Ms Mazey was referring in the first statement quoted to bruises on her face.
One of the notes written by Ms Mazey in the weeks before her death included the statement “I’m telling people at work that Chocko jumped up and put his paws on both my cheeks below my eyes. I’m never going to tell anyone. I’m scared though ‘cos I don’t want anyone thinking that you did it. I love you.” (Chocko was the name of a dog of the accused).
Both of Ms Mazey’s breasts were found to be extensively bruised (both in the RAH and at autopsy). Dr Cala (the forensic pathologist) considered these bruises to be older than other bruises. He considered it likely that the bruises to the breasts resulted from a blow or a number of blows. He thought other postulated causes such as a fall, landing face down, or an application of force from a piece of furniture being pushed into Ms Mazey’s chest to be unlikely. In his evidence, the accused suggested that the bruising to the breasts might have resulted from pressure from sexual intercourse taking place on hard surfaces or on the trampoline in their backyard or, alternatively, because sometimes things got “uncoordinated” during sexual relations.
A neighbour of the accused and of Ms Mazey reported hearing, approximately one week before 12 September 2003, “constant screaming” of the words “stop, stop, Michael stop” from a female in the home of the accused. That screaming could only have been from Ms Mazey. The accused said that he had then been teasing Ms Mazey who was afraid of spiders, with a Huntsman spider and that accounted for her screaming. I considered that evidence to be quite unconvincing. I do not accept it. It does not explain the quality of the sounds heard by the neighbour or her observations of Ms Mazey immediately afterwards when Ms Mazey came out the front door.
Subject to one qualification, the accused denied that he had ever struck Ms Mazey. He denied ever seeing her with a black eye or with two black eyes. He denied any domestic violence. He did admit, however, to striking Ms Mazey during sexual intercourse. He said that this was done for Ms Mazey’s pleasure. This explained the bruising to the side of her face (which he described as “light bruising”) and the grip marks on her neck. The Chocko reference in Ms Mazey’s note was a reference, he said, to bruising which she had suffered as a result of their sexual activities. The accused also maintained that Ms Mazey would, from time to time, hit herself in an act of frustration, or self-recrimination. The implication was that some of her bruises had been self-inflicted.
As with the evidence concerning the means by which Ms Mazey’s breasts came to be bruised, I found this evidence quite unconvincing. It did not explain, in any event, the black eyes observed by others. I reject the evidence of the accused on this topic. The combined effect of the evidence which I have summarised above (and which I accept) is strongly indicative of the accused having been frequently violent to Ms Mazey, including by striking her, gripping her in a choking action, restraining her and punching her. Because of her love for the accused, Ms Mazey kept silent about these assaults. She gave false explanations to those who enquired about the bruises and marks. I conclude that she was repeatedly beaten by the accused who knew that he could assault her in the confident expectation that she would not report him, or the assaults.
I am also satisfied that the accused was a controlling personality in the relationship. This is very evident from a letter written by the accused to Ms Mazey dated 5 August 2003 and in incidents which Ms Mazey’s mother, brother and friend, Ms Tsirikos, recounted. The accused dominated Ms Mazey. She loved him and was fearful of a termination of their relationship and so accepted his behaviour. Ms Mazey sought continually to reassure the accused of her love (and faithfulness) and to avoid any activities which aroused his suspicions. In short, Ms Mazey was very much subject to the accused.
Friday 12 September 2003
The effect of the evidence of the accused was that by Friday 12 September 2003 the relationship between Ms Mazey and himself had deteriorated. He was convinced that she had been unfaithful, that she was being untruthful, and he had come to think that their relationship would have to end. His beliefs in this respect can only be understood by reference to the diagnosis of morbid jealousy and delusions of infidelity to which I will refer later. The accused had weighed up in his mind the implications of a termination of the relationship between himself and Ms Mazey, both emotional and financial.
12 September 2003 was a rostered day off for Ms Mazey. She and the accused spent most of the day at home. During the day there had been some discussion between them with the accused questioning her about her fidelity, her movements, her activity, whom she had met and so on.
At about 4.30 pm the accused left to pick up ALC for her organised access visit. He waited at LMB’s home for her to return with ALC at 5.00 pm. LMB observed him hunched over the steering wheel of his stationary car. She thought that he was withdrawn and that “he just wasn’t seeming right”.
The accused arrived back at his own home with ALC at approximately 5.45 pm. He played with ALC at the trampoline in the backyard. Ms Mazey was also present. After a while he went into his shed to attend to goldfish which he kept there. Ms Mazey continued playing with ALC.
The Accused’s Account of the Assault
The following account is drawn from the evidence of the accused in both evidence-in-chief and in cross-examination.
The accused said that while attending to his fish he shut himself in the shed to keep Ms Mazey away. She tried to enter so as to talk to him. At one stage, out of frustration, he threw an ice bottle so that it struck the boundary fence making a noise. He said that it was not thrown at Ms Mazey.
After enquiring of the accused whether she should prepare an evening meal, Ms Mazey did so, and all three persons sat together in the family room to consume it. After the meal the accused took ALC to her bedroom so that she could watch a video in that room.
He returned to the family room where discussion with Ms Mazey resumed, particularly on the topic of her fidelity. In the course of this discussion Ms Mazey admitted (the accused said) that she had been cheating on him with a named person. This devastated him. He regarded it as killing their relationship completely. It confirmed in his mind that Ms Mazey would have to leave.
Ms Mazey did not accept that position and protested. She tried continually to discuss the issues with him, including by confronting him, by grabbing him, and trying to make him face her. He, on the other hand, was trying to avoid her, by shunning her and walking about the house to evade her. The accused said:
… It has become very, very distressing to me and I sort of had, sort of, an anxiety panic, sort of overwhelming emotional sort of thing come over me that just wanted me to be left alone, I couldn’t contemplate talking about it. … I had a massive amount of pressure in my head and I didn’t really know what to do, I couldn’t breathe properly.
Whatever he did, Ms Mazey followed him, all the while protesting, apologising, and trying physically to stop him and make him talk to her. The accused pushed her away, forcibly, on numerous occasions. Sometimes he gripped her upper arm and shoulders and pushed her. At other times he pushed with flat open hands on “the chest area”, including on her breasts. He said words to the effect “Go away, leave me alone”. Sometimes Ms Mazey fell over as a result of the force of the pushes. But Ms Mazey did not leave him alone. Each time she got back up and persisted with her approaches. In at least one of the falls Ms Mazey hit her head on the floor.
The accused said that the events which followed were a blur and he could not remember all the detail and sequence of events.
At one stage, the accused grabbed the hood attached to Ms Mazey’s jumper and dragged her to an area behind a futon, saying “Stay there”. Initially his action forced Ms Mazey to walk backwards but then she fell backwards and was dragged. She may have banged her head on the floor at this time as well. Ms Mazey got up and approached the accused again. On a second occasion he dragged her by the hood of her jumper to the place behind the futon. On another occasion, when the accused went to walk past Ms Mazey (who was on the floor) she grabbed his leg and hugged it to her. He kicked her off. That was the only kicking which occurred. Before kicking her off, the accused dragged Ms Mazey again and forced her to the floor.
The accused said that at some stage he changed his shirt. He did so by going to a bedroom and then to the laundry. At one stage I was inclined to think that the change of clothing was more likely to have occurred after the conclusion of the assault and shortly before the accused left to take Ms Mazey to hospital. But the accused described other events happening at the same time as he changed his shirt. This included Ms Mazey banging her forehead and hands on the floor in apparent frustration at her inability to communicate with him. The accused likened her behaviour at this time to a child having a tantrum. The accused also recalled Ms Mazey calling out to him while he was in the bedroom, begging him to believe what she was saying.
After changing his shirt, the accused approached Ms Mazey and told her that if she did not stop following him he would tie her feet together. He had a belt which he had obtained from a bedroom when he said this. Despite this, Ms Mazey persisted in confronting him. The two of them then grappled, went to the ground and struggled until the accused sat on her legs so that he could tie them together, using the belt. I note that a belt and two buckles, one damaged, were located by the police in the house. Having restrained Ms Mazey in this way, the accused returned to the futon and looked at the television but, he said, not taking in the program being shown. Ms Mazey extracted herself from the belt and then tried to choke herself with it. This caused the buckles to fall off. Ms Mazey then commenced banging her eyes or her forehead with the heels of her hands, at the same time making remarks of a self-recriminating nature. The accused then took back the belt, throwing it into a bedroom. He put the two buckles into his pocket and later on to a coffee table, where they were found by the police.
Ms Mazey demonstrated frustration at the accused’s refusal to communicate with her. She threatened to go outside and to kill herself with a kitchen knife. The accused leapt over the breakfast bar and disarmed her. In the scuffle, a vertical blind covering an external door became detached. Having disarmed her, the accused returned to the futon and again looked at the television, although he said again that he did not take in whatever it was that was being shown.
Towards the end of the exchanges, Ms Mazey pushed a futon into him, jamming his knees between a coffee table and a second futon. The accused responded by pushing the futon forcibly back at Ms Mazey, causing her to fall backwards. In falling, she knocked over a stereo speaker and then fell into a doorway. Ms Mazey did not get up again after this fall. The accused returned to the futon and again looked at the television. After a short time, he returned the knife which he had taken from Ms Mazey to the kitchen area, leaving it on the kitchen bench. He also reattached the vertical blind which had fallen.
He then walked back past Ms Mazey and saw that she was motionless. He nudged her with his foot, asking whether she was alright. There was no response. He straddled Ms Mazey on his knees and saw that she had a bloodied lip. He thought she was then unconscious. He started to cry. He felt for her pulse and obtained a wet sponge with which to wipe her face. There was blood on the floor and he cleaned that with a towel. Although he did notice some swelling and fluid in the eyes, he did not notice any bruising to the eyes.
The accused realised that Ms Mazey needed assistance. He decided to drive her to the hospital in his own car. He could not ring for an ambulance because they did not have a landline in the home. They had no credit on their mobile telephone. He was aware that the 000 number could be rung even without credit but decided not to try that. It had not worked once on a previous occasion. He did not think it worthwhile asking the neighbours to ring an ambulance.
The accused put ALC in the child restraint seat in the car. He dragged Ms Mazey across the floor to a position close to the garage (which was attached to the house). From there he manoeuvred Ms Mazey into the front passenger seat and restrained her there with the seat belt. Ms Mazey remained unconscious.
The accused then drove her to the Lyell McEwin Hospital where she was assisted by nursing staff, paramedics and security staff onto a barouche and taken into the hospital. The accused then drove ALC to his parents’ home, left ALC with his father, and returned to the hospital with his mother.
The accused denied having lost his temper at any stage but said that he had been overwhelmed with frustration.
The account of the accused given in evidence was very similar to an account which he gave when interviewed by the police on the evening of Sunday 14 September 2003. As is to be expected, the process of examination and cross-examination revealed a greater amount of detail but in substance, the two accounts were quite similar. The account given to the police appeared to make the prospect of Ms Mazey having suffered self-inflicted injuries more prominent than did his evidence in the trial.
The Injuries to Ms Mazey
On arrival at the Lyell McEwin Hospital, Ms Mazey was unconscious with massive facial and head swelling, a swollen and lacerated lip, swollen and closed eyes and her breathing was difficult. After initial treatment she was transferred to the Royal Adelaide Hospital. There, Ms Mazey was found to have massive facial swelling and bruising, bilateral pneumothoraces requiring a chest drain, and gross swelling of the neck. A CT scan of her brain revealed gross cerebral oedema and a small subdural oedema. Despite intensive care treatment, Ms Mazey did not survive. Death was certified on 19 September 2003.
The post-mortem examination by the forensic pathologist, Dr Cala, showed multiple bruises to the top and back of the head, back of the neck and to the limbs, torso and trunk. In addition, both breasts were bruised. As already noted, Dr Cala regarded those bruises as older, ie, as having been caused by blows to the breasts before 12 September 2003. There was, in addition, a distinct “tram track” type bruise to the left upper back which Dr Cala considered to have been caused by a cane or stick having been brought down forcibly on Ms Mazey’s back. Both arms had multiple bruises, many of which Dr Cala considered were consistent with restraint of Ms Mazey by the holding of her arms.
It is not necessary to describe the bruises in detail. They are best seen in photographs taken during the autopsy. The stark feature of the photographs is the multiple number and the severity of bruises to the back and top of the head, eyes, mouth, breasts, torso, arms, trunk and legs.
In general, Dr Cala considered that the multiple bruises to Ms Mazey had been caused by numerous blows or by Ms Mazey having been restrained. Dr Cala accepted that some of the bruises could possibly have been caused by Ms Mazey falling against an object, but did not consider the multiple bruises to have been caused by a fall or falls.
I regard the evidence of Dr Cala as reliable and I accept his opinions.
On the basis of Dr Cala’s evidence, the evidence of Dr Dean, who was involved in the treatment of Ms Mazey in the Royal Adelaide Hospital, and the photographs of Ms Mazey taken in the Royal Adelaide Hospital and at autopsy, I am satisfied beyond reasonable doubt that multiple violent blows were inflicted on Ms Mazey, and that from time to time she was restrained violently by being gripped around her arms and neck. I accept the opinion of Dr Cala that the cause of death was blunt force head trauma. Specifically, the assaults to Ms Mazey’s head resulted in raised inter-cranial pressure resulting in a condition known as bilateral tonsillar herniation. The effect of that condition was pressure on that part of the brain stem controlling the function of the heart and lungs. This resulted in a cessation of that functioning. Dr Cala said that severe force must have been applied to the head to produce this injury.
Implausibility of the Account of the Accused
I consider the account of the accused in relevant respects to be implausible.
The behaviour attributed to Ms Mazey by the accused stands in stark contrast to my assessment of her personality style and of her domination by the accused. The observations of Ms Mazey by her own family and her friends, supported as they are by Ms Mazey’s notes to the accused, indicate her genuine love for the accused and her submission to him. She is also described as having doted on ALC. I think it quite unlikely that a person with that personality style and submission to the accused would have behaved in the aggressive and persistent way described by him. I consider it quite unlikely that with ALC in the house Ms Mazey would have engaged in the behaviour described by the accused. The notion that Ms Mazey may have inflicted on herself many of the serious injuries which she suffered is, in my assessment, fanciful.
It is evident that there had been difficulties in the relationship of the accused with Ms Mazey in the past. Neighbours have described Ms Mazey standing outside her home, even in the cold and rain, in apparent distressed circumstances. That seems to have been Ms Mazey’s method of coping with the behaviour of the accused.
Furthermore, the account of the accused does not plausibly explain the severe injuries suffered by Ms Mazey. Mr Mead elicited, in cross-examination of Dr Cala, that individual injuries were of a kind that could possibly have been suffered in a fall, or by Ms Mazey knocking against an object, and some possibly by self-infliction. But it is the totality of the injuries which has to be considered. It is highly unlikely that Ms Mazey could have suffered all of the injuries which she did other than through direct assault. For example, Ms Mazey has bruises in areas unlikely to be exposed to injury in the event of a fall. A fall, or even more than one fall, does not explain the multiple bruises suffered by Ms Mazey, let alone the severe force of the blow or blows which caused her death. Even if some of the injuries were caused by a fall, the extensive number of them indicates that an individual fall, or even a number of falls, is unlikely to have been their cause. Some of Ms Mazey’s injuries were very consistent with having been caused in defensive action by her. I accept Dr Cala’s opinion about this.
The Account of ALC
As it happens, there was an eye witness. ALC saw much of what occurred. ALC was interviewed by a child psychologist on 14 September 2003. That interview was video taped. Both the tape and a written transcript of the interview were tendered by consent, without either ALC or the child psychologist being required to attend for cross-examination. It is quite understandable that the accused would have wished to spare ALC the experience of giving evidence and of having to recall and recount what she observed. For this reason, I do not draw any inference adverse to the accused from the fact that he did not seek to have ALC cross-examined. Further, in assessing the inferences to be drawn from ALC’s statement, I keep in mind that she was not cross-examined.
ALC was not, of course, under oath in the course of the interview. There was also no explicit questioning concerning ALC’s knowledge of the importance of being truthful. There are, however, some indications in the interview that ALC was able to distinguish between “true” and “pretend”. There was also no questioning seeking to elicit what ALC may have overheard from adults about what may have occurred, which might have “contaminated” her recall.
It is necessary for me to exercise considerable caution before acting on the contents of ALC’s statement. Her tender years and the matters I have already mentioned indicate why that is so. Furthermore, there are some aspects of ALC’s account which are not supported in any way by other evidence. For example, ALC said that the accused jumped on Ms Mazey’s back with both feet but there were no bruises consistent with such a jumping found on Ms Mazey. Dr Cala said that had she been jumped on in that way, it is likely that bruises would have been left. The demonstration which ALC gave using dolls of the accused’s action suggests that what she may have been describing was the accused standing on Ms Mazey’s back, rather than jumping, but nevertheless this indicates the need for caution about relying on ALC’s account. I also note that ALC described one incident but later acknowledged that she had not actually seen it. This indicates the possibility of her imagination having been at work. I take account of the fact that ALC was probably in or just outside her bedroom while parts of the assault were occurring, and is therefore unlikely to have had an unrestricted view of what was taking place.
ALC’s interview was, for the most part, conducted by non-leading questions. Thus, her account was largely uninfluenced by the questions asked of her. On some occasions, ALC corrected the interviewer.
ALC appears to have good verbal communication skills. Furthermore, ALC mentions several incidents in, and related to, the assault which are also mentioned by the accused in his account. For example, ALC mentioned the jumping on the trampoline shortly after she arrived at the house; the accused feeding the fish in the shed; her calling Ms Mazey to come admire her new shoes (a matter also mentioned by the accused), the accused throwing an object at the fence (ALC thought that it was a rock); Ms Mazey enquiring about preparing tea; going inside from the trampoline with Ms Mazey and the accused coming in separately; the accused watching television during the assault while Ms Mazey was on the floor; a mark on the wall near the speaker where the accused pushed Ms Mazey (the police observed an indentation in the plasterboard wall evidently made by a corner of the speaker); the push against the curtains (this appears to be a reference to the vertical blinds); the accused kneeling next to Ms Mazey at the end of the assault and crying; and the accused cleaning up the floor before moving Ms Mazey. These matters suggest that much of the account of ALC has a sound basis in reality.
During the greater part of his interview, which occurred a few hours after the interview of ALC, the accused cannot have been aware that she had been interviewed, let alone of the content of what she had said. His account of incidents mentioned by ALC cannot be explained as an attempt to match and/or explain the matters observed by her.
ALC spoke of the accused hurting Ms Mazey by pushing her to the ground on to the tiles in the lounge room so that Ms Mazey “cracked her head” (but ALC acknowledged that she had not actually seen this). She also spoke of the accused pushing Ms Mazey to the walls and to the curtains. They were fighting and screaming. She said that the accused kicked Ms Mazey’s head. Ms Mazey wished to leave the accused alone and to take ALC with her, but the accused hid the keys so that she could not get out. Then the accused hurt Ms Mazey. The accused “just said ‘say the name’ and she didn’t, and now she’s asleep”. ALC described Ms Mazey breathing “like coughing” after the assault. She also described the accused as having been angry.
ALC spoke of the accused accidentally punching her as she sat next to Ms Mazey on the lounge holding her hand. After accidentally punching her, the accused punched Ms Mazey. ALC did have a bruise on the outer side of her right knee which she said resulted from the accused’s punch. The bruise is very apparent in photographs taken on Monday 15 September 2003. The accused said that ALC’s account of a punch was inaccurate. Instead, ALC had knocked her knee against the trampoline shortly after first arriving at the home. That knock had resulted in the bruise. Both the content of that explanation and the manner in which it was given cause me to have considerable reservations about its reliability. I consider that it was an invention of the accused to explain the very evident bruising suffered by ALC.
Even when account is taken of ALC’s youth and of the other matters I have mentioned earlier affecting the reliability of her statement, I think that it is of some assistance in the assessment of the accused’s evidence. In the first place, it does not provide any support at all for Ms Mazey having been badgering the accused. It seems highly unlikely that ALC could have invented or imagined the accused saying “say the name”. That conduct is very consistent with being a manifestation of the accused’s morbid jealousy and indicates that it was the accused who was badgering Ms Mazey. ALC’s statement indicates that rather than Ms Mazey relentlessly pursuing the accused, she wanted to leave the house but was prevented from doing so by the accused.
For these reasons I have considered it appropriate to take account of the events described by ALC in considering the reliability of the evidence of the accused and in making my findings.
The Lies of the Accused
At the Lyell McEwin Hospital, the accused was asked by those assisting Ms Mazey as to what had happened. Initially, he said that Ms Mazey had been beaten up at “a train station” but did not respond to questions asking for the station to be identified. Shortly afterwards, the accused told an ambulance officer “I think she’s been beaten up on the way home from the train station”.
The accused then took ALC to his parents’ home. While there, he told his father “I’ve hurt Nicole. She’s bleeding everywhere and I’ve taken her to the hospital and I have to go back there”. When he returned to the Lyell McEwin Hospital, the accused told a triage nurse that Ms Mazey had been assaulted on the way home from the train station and said something indicating that he had found her in the home on his return.
A police officer (Constable Kohler) spoke to the accused at approximately 8.30 pm on 12 September 2003. The accused told Constable Kohler that he had been absent from the house from about 4.30 pm to 6.30 pm and that when he arrived home he found Ms Mazey inside unconscious. Shortly after 10.00 pm that same day, the accused repeated to another police officer his account of having arrived home with ALC and having found Ms Mazey in an injured state on the floor.
Shortly afterwards, the accused was arrested and charged with the attempted murder of Ms Mazey and with assaulting her occasioning grievous bodily harm. Initially, the accused declined, on legal advice, to participate in a formal interview. However, on the evening of Sunday 14 September 2003, the accused contacted the investigating police officers and indicated that he now wished to provide a statement. The accused was then interviewed and provided the account to which reference has been made earlier.
In his evidence, the accused said that he had said that the assault had taken place “possibly” on the way home from the train station because “I was scared and I didn’t really want to go into it without Nicole to help me and to understand what had really happened”. Later in his evidence, the accused said, in relation to what he had said about finding Ms Mazey, “I admit I made a mistake”.
The accused’s lies on the night of 12 September 2003 will be considered later in the context of his knowledge of the wrongfulness of his actions. For present purposes, I note that the accused lied in an exculpatory way. In my opinion, much of his evidence had an exculpatory quality about it and I have taken that and his lies into account in assessing the reliability of his evidence.
The Psychiatric Condition of the Accused
I accept that in September 2003 the accused suffered from morbid jealousy with delusions of infidelity. This was the opinion of Professor Mullen, who I regarded as an impressive witness. Professor Mullen is recognised for his particular expertise in the area of morbid jealousy. Each of Drs Raeside and Nambiar agreed with the diagnosis. In the case of the accused, the morbid jealousy was manifested by excessive suspicion concerning the fidelity of Ms Mazey. He had the belief that during the course of their relationship, Ms Mazey had had numerous sexual encounters and relationships with both men and women. That belief was delusional. Although Professor Mullen described the condition as “morbid jealousy with delusions of infidelity”, for the sake of convenience, I will refer to it as “morbid jealousy” only. Professor Mullen’s opinion as to the existence of the condition was based very much on the history which he had been given by the accused. I regard the accused’s evidence as unreliable in a number of respects. Absent corroboration in other evidence, I may well have doubted the reliability of the history in this respect given to Professor Mullen. But there is support for the accused’s evidence in notes written by Ms Mazey to the accused in the weeks before her death, in a letter which he had written to Ms Mazey, in the interview of ALC, and in the behaviour of Ms Mazey, observed by her work mates.
I am satisfied that the accused did engage in a number of behaviours caused by his morbid jealousy. This included excessive questioning of Ms Mazey, checking her text messages, believing that he saw in those text messages coded messages relating to sexual encounters, checking Ms Mazey’s underwear, checking surreptitiously on her movements and requiring her to account in minute detail for her movements and expenditure. Despite an absence of any justification, the accused had a belief, bordering on a conviction, that Ms Mazey had been, and continued to be, unfaithful to him, and that it was only a matter of time before she admitted that this was so, and disclosed relevant details.
Dr Nambiar considered that the accused also suffered from a paranoid personality disorder and a delusional disorder of the body dysmorphic type relating to the size of his genitals. Neither Professor Mullen nor Dr Raeside supported those diagnoses, at least in full. In the end result, it is not necessary for me to consider these alternative conditions in detail, as it was not suggested that either by themselves indicated that the accused did not know that what he was doing was wrong, or that he was unable to control his conduct. I do, however, take into account the symptoms of these conditions to which Dr Nambiar referred.
I am satisfied that the condition of morbid jealousy constitutes a mental impairment for the purpose of s 269C of the CLCA.
Rejection of the Account of the Accused
I regard aspects of the account of events given by the accused as quite unreliable. Particular incidents of the kind he described did occur but not in the context asserted by him. In relevant respects the accused’s account is inherently implausible. It does not provide a complete explanation for the injuries suffered by Ms Mazey. It is not supported (and in fact is contradicted) by the account of ALC. It has all the hallmarks of a version determined upon by the accused after he knew that Ms Mazey was unlikely to recover, and was therefore not going to be able to contradict him. I am satisfied that the account of the accused inverts substantially what did in fact occur. His account contains most of the elements of the events which occurred, but portrays himself as the “victim” and Ms Mazey as the “aggressor”. Contrary to the account of the accused, I am satisfied that he was the one pressing Ms Mazey. He would not accept her denials that she had in any way been unfaithful. He tried to force an admission, with accompanying details, from her. His assault was a continuation of the domestic violence which he had inflicted on her in the past.
I am satisfied that Ms Mazey did not make any admission at all of infidelity, let alone that she had been cheating with the person named by the accused in his evidence. I am satisfied that rather than continually confronting the accused, Ms Mazey sought to avoid him. Ms Mazey did not threaten to go outside and kill herself. She did want to leave the house with ALC but the accused prevented her doing so. Although it does not matter, I suspect that Ms Mazey would have been reluctant to leave without ALC.
Findings Concerning the Assault
As my findings concerning the manner of the assault are relevant both to the decision about mental competence and to the trial of the subjective elements, I have thought it appropriate to make these findings after applying the ordinary criminal onus.
I am satisfied, beyond reasonable doubt, that in the assault the accused punched, shoved and kicked Ms Mazey, with the punches and kicks being mostly to her head. In addition, the accused restrained Ms Mazey, sometimes by gripping her upper arms and shoulders, sometimes by gripping her neck, and on one occasion by use of the belt. The accused also forcibly dragged Ms Mazey by taking hold of the hood attached to her jumper. Immediately before one of his punches, the accused accidentally punched ALC when a punch aimed at Ms Mazey was misdirected. The fatal blows occurred late in the assault, because they caused Ms Mazey to lose consciousness. The assault ended very shortly after that loss of consciousness. It is not possible to say whether the fatal blows were punches or kicks.
Ms Mazey did fall more than once during the assault. She was kicked in the head while on the floor. Her fatal injuries were not caused by hitting her head in a fall.
At least twice during the assault, the accused sat on the futon. Part way through the assault the accused changed his shirt and obtained from a bedroom the belt he used to tie up Ms Mazey. The actions comprising the assault did not occur in one continuous sequence of events. There were intervals of respite interspersed.
Ability to Control his Conduct
As already noted, the accused must prove three matters to displace the presumption of mental competence: the existence of a mental impairment; (relevantly) that he was unable to control his conduct or that he did not know that his conduct was wrong; and that state, or those states, were in consequence of the mental impairment.
I now turn to the question of whether the accused was able to control his conduct. I repeat that the conduct to be considered is the conduct comprising the assault in which the fatal injuries were inflicted.
As neither Dr Raeside nor Dr Nambiar considered that the accused was incapable of controlling his conduct, I will commence by considering the opinion of Professor Mullen.
Professor Mullen interviewed the accused on two occasions. He was also present for a significant part of the accused’s cross-examination. I formed the impression that Professor Mullen was very careful in his manner of expression of his opinion. Professor Mullen said that he considered the condition of morbid jealousy and the minor degree of cognitive impairment assessed by Mr Reid, coupled with the circumstance of pressure and stress to which the accused was undoubtedly subject at the time of the assault, “could” have affected both the self-control of the accused and his ability to think and reason about the nature and wrongfulness of his action. There was a “probability” that both these capacities were “significantly impaired”. Later, Professor Mullen repeated that the accused’s delusions “could” have affected his knowledge that the conduct involved was wrong. He said:
… the person caught up in a delusion of infidelity loses any sense of proportion. It becomes the beginning and the end of their existence. It induces very intense emotional responses, and in that state of high arousal of total preoccupation and absorption into the belief, the capacity for any kind of prudential wisdom is going to be affected.
Earlier, Professor Mullen said:
Delusions are not just abnormal or wrong beliefs. The point of a delusion is that it becomes the centre and core of someone’s understanding of their world. It comes to dominate their thinking, it comes to structure their understanding of the world … The most important thing about the delusion of infidelity, it becomes everything. The search for evidence, the fear of the loss of a partner, the anger of humiliation, all of this becomes the context in which they live almost minute by minute. I think that there is no equivalent in normal experience, however intensely when we are even in love, that is the closest we come to it, even then most of us pull ourselves away from that intense preoccupation to get on with our work, our day to day activities. As morbid delusions take over, even that becomes impossible.
Professor Mullen said that he thought that the ability of the accused to think rationally about the reasons by which ordinary people might consider a particular act to be right or wrong would “certainly” be impaired but acknowledged that the extent of such impairment was a matter for the court, rather than himself. He said the delusions raised the strong possibility that the accused’s capacity for control was affected, but again acknowledged that the extent of any impairment was a matter for the court to assess.
Professor Mullen attached particular significance to the fact that the attack on Ms Mazey had occurred in front of ALC, then four years and seven months old. He considered that this indicated either “extraordinary brutal insensitivity” by the accused, or that the capacity of the accused to control his conduct was impaired. The latter was more likely than the former. He accepted, however, that that opinion assumed that the deceased had been aware of ALC’s presence during significant parts of the assault.
As I have said, I consider that Professor Mullen, having observed a substantial portion of the accused’s cross-examination, was very careful in his manner of expression during the course of his evidence.
Ms McDonald submitted that the opinion of Professor Mullen, even accepted at face value, did not establish that the accused was mentally incompetent. I do not accept that submission. In my opinion, Professor Mullen was being careful to distinguish the respective roles of an expert psychiatrist and that of the court. He was appropriately leaving it to the court to make the ultimate assessment. The decision concerning the accused’s mental incompetence is not to be approached simply by a consideration of the opinion of the psychiatrists on the ultimate question in the trial. I have to consider whether the morbid jealousy which Professor Mullen said could have affected the accused’s knowledge or wrongfulness and capacity for self-control did have that effect.
The Presence of ALC
I do not attach the same significance to the presence of ALC as did Professor Mullen. In the first place, I am not satisfied that the accused was aware that ALC was observing substantial portions of the assault. I think it much more likely that he was oblivious to her presence.
In his evidence, the accused said that his belief was that ALC had not been present in the room at all during the assault.
When interviewed on 14 September 2003 the accused told Detective Sharpe that Ms Mazey had approached him in the lounge while ALC was watching television in her own bedroom. He thought ALC was still in the bedroom during at least significant portions of the assault. He said that he asked Ms Mazey not to scream, reminding her “[ALC] is here”. Although it is not clear, my impression is that he was then referring to the presence of ALC in the house rather than her presence in the lounge room. Later, the accused said that ALC had come out of the bedroom once but that he had put her back into that bedroom. He also said that ALC had come out of the bedroom at the time when Ms Mazey was lying still on the floor, which was, in effect, after the assault had finished.
This evidence indicates a belief by the accused that ALC was, for the most part, in her bedroom. I have already indicated that I accept that ALC observed a considerable portion of the assault. I find that the accused was not aware of her presence or that she was observing what was occurring. Accordingly, I consider that the accused was not constrained in any significant way by the fact of her presence.
Furthermore, I consider that the presence of ALC, even if the accused had been aware of it, would not have inhibited his conduct. The evidence of LMB, which I accept, shows that on a number of previous occasions, the accused had been physically and verbally abusive of her in the presence of ALC. On one occasion he head‑butted LMB while physically wresting ALC from her arms. This incident also occurred, apparently, in the presence of the accused’s own mother. Neither her presence nor that of ALC had inhibited the accused from violent conduct involving LMB.
On another occasion, a series of events occurred in ALC’s presence. The accused punched the windscreen of LMB’s car with sufficient force to fracture it. Using LMB’s ponytail, he forced her head several times into the side window of the car all the time shouting abuse at her. The distress of ALC, who was in the back seat, at this conduct was evidenced by her screaming. Later, the accused threw a drawer in LMB’s room towards her so that it punctured the covering on an internal door. It is not clear whether ALC observed the drawer being thrown but she was present in the house at the time. There was also considerable verbal abuse of LMB on this occasion.
On a third occasion, while LMB was placing a child seat in her car, the accused repeatedly closed the car door on her legs, bruising them. ALC was present when this occurred and in a position to observe what was occurring.
On a fourth occasion, the accused verbally abused LMB in ALC’s presence. This was on an occasion when the accused was taking access to ALC from LMB.
Finally, in this respect, I note that once ALC started kindergarten, the accused had access to her on weekends. She would stay with the accused and Ms Mazey. Yet the accused said that it was normal on weekends for him to consume amphetamines extensively. This also suggests a lack of insight by him of the effect of his behaviour on ALC’s development.
Accordingly, while it is difficult to accept that such a violent assault could have been inflicted in front of a child, I do consider that that is what occurred in this case. I do not attach the same significance to the presence of ALC as does Professor Mullen.
Inferences from the Conduct of the Accused
In determining whether the accused could control his conduct, it is the totality of that conduct which is to be considered. The various aspects of the conduct to be considered include its duration, the opportunities for pause or respite during the course of the conduct, the complexity of the actions comprising the conduct, the extent to which the conduct was purposeful or directed as opposed to being random or disorganised, the motivation for the conduct, the extent to which it was responsive to an identified precipitant and, perhaps, the extent to which the accused had had opportunities to reflect upon previous conduct of a similar kind. I accept, as Professor Mullen pointed out, that consideration of these aspects has to take account of the accused’s psychiatric state.
In the present case, the conduct appears, in a relative sense, to have been prolonged. It was not an isolated action completed in an instant. It is not possible to say how long the assault lasted, but it must, at least, have been several minutes and I think likely to have been much longer. The various actions described by the accused could not have been completed in only a matter of moments. In addition, there were pauses in the assault. On the account of the accused, there were three occasions when he returned to the futon and looked at the television. Two of those occurred before Ms Mazey became unconscious. ALC observed the accused looking at the television on at least one occasion. The accused changed his shirt – going into a bedroom and into the laundry. He also had the presence of mind to get the belt which he used to restrain Ms Mazey. The very length of time over which the assault occurred, with the occasions of respite during it, militate against a finding that the accused was incapable of controlling himself throughout the period of the assault.
As to the complexity of the conduct, it is noteworthy that the accused engaged, even on his own account, in a variety of actions. There is the pushing of Ms Mazey, both to her upper arms and shoulders and to the chest and breasts. There is the dragging of Ms Mazey by use of the hood attached to her jumper. Ms Mazey had also been gripped around her upper arms at some stage. It is possible, in Dr Cala’s opinion, that she had been struck with a cylindrical object (although I note that no object of a kind which might have inflicted such a blow was found by the police). The accused had leapt over the breakfast bar and restrained Ms Mazey. He had also restrained Ms Mazey from leaving the house. He had the presence of mind to get the belt and the ability to subdue Ms Mazey so that he could use it. After the buckles broke off, he collected them and the belt, throwing the belt into a bedroom and pocketing the buckles. He had noticed the broken vertical blind and repaired it (although this appears to have happened at the end of the sequence of events comprising the assault). This is a reasonably complex set of actions.
The accused’s actions do not have any quality of randomness or disorganisation about them. His actions appear to have been quite focussed and quite deliberate. The areas where the bruising was pronounced indicate that the accused targeted the head, face and neck.
There was a reason for the accused’s conduct, namely, his belief that Ms Mazey had been unfaithful and his conviction that it was only a matter of time before she would admit it. This is not a case of an incident causing a sudden flare up by the accused.
On my findings, the accused had previously assaulted Ms Mazey. He had had the opportunity of reflecting on that conduct. Of itself, that may not indicate very much at all about his ability to control his conduct on 12 September 2003. It may, however, be relevant in this way. The accused was aware of the dominant position which the love of Ms Mazey gave him. He knew she was unlikely to report his conduct. This may have removed to some extent a perceived need for self-regulation in his conduct. But overall, I think it adds little to the issue of his ability or inability to control his conduct.
I do attach some, but limited, weight to the accused’s conduct after the conclusion of the assault. I fix this as being at about the time when the accused nudged Ms Mazey and found her to be unconscious. As well as cleaning up the floor and sponging Ms Mazey’s face, the accused made decisions about calling for assistance. He thought about dialling 000, realised his mobile telephone had no credit, remembered that a 000 call could be made without credit, but remembered that on a previous occasion that had not worked. He thought of asking the neighbours, but rejected that as an alternative. In relation to that evidence, Professor Mullen said:
That account is a very complex set of thoughts and reasoning and decision-making. It requires the ability to recall previous events accurately, to think about that, to make really very subtle decisions. Someone who is in a state of mind capable of that process could not, in the immediate prior period, have been in a state so disordered that they couldn’t reason about their actions or so out of control that they couldn’t modify their actions. It requires a very together – to use a colloquialism – state of mind, it would seem to me.
On any view, the accused was in control of his conduct from the time he nudged Ms Mazey. I take into account, however, that his conduct from that time may be as consistent with him having recovered the ability to control his conduct, as it may be indicative of an ability to control that conduct all along. Dr Nambiar accepted that there were difficulties in inferring from the composure by the accused after the conclusion of the assault that he had also been composed during the course of the assault.
I consider that the recollection of the accused of the assault, and of the physical description of the house, is also relevant. The accused left the house on the evening of Friday 12 September 2003 with Ms Mazey, and because of his arrest and detention in custody, has never returned. His memory of the events which happened during the assault itself must, of course, depend upon the information he was able to “store” while the assault was continuing. His memory of the condition of the house, and the places where items could be found in it, had to have been “stored” during the assault itself and in its immediate aftermath. What is remarkable is how many of these things the accused could recall, for example, his changing of his shirt, his sitting down on the futon on three occasions, his repair of the blind, the knocking over of a speaker, the tying of Ms Mazey with a belt, and so on. Professor Mullen accepted that at least in relation to the condition of the home:
At that stage clearly he could not have been in such a disturbed state of mind of the type that I was talking about where he would not be able to reason about his actions or he is so out of control. It requires a certain calmness to be able to see the detail and recall it.
The fact that the accused was sufficiently collected to be able to remember these matters militates against a conclusion that he was so disturbed or agitated that he was unable to control his conduct.
I do not think it necessary in the present context to consider the implications arising from the accused’s lies at the Lyell McEwin Hospital.
Conclusion on Inability to Control Conduct
Although I accept Professor Mullen’s opinion that morbid jealousy can produce a state of exquisite emotional arousal, and that in the accused’s case, it may well have produced intense arousal, I am not satisfied, having regard to the nature and quality of the accused’s conduct, its duration, its complexity, its purposefulness, and the accused’s memory of it, that the accused’s conduct was entirely uncontrolled. The accused may have lost control to a significant extent but I do not consider that it was lost completely.
More importantly, for present purposes, I am not satisfied, for the reasons given above, that the accused was unable to control the conduct comprising the assault, and in particular, the fatal blows or kicks.
Knowledge that the Conduct was Wrong
In the submissions on this topic, the accused relied very much on the passage in the summing-up of Dixon J in R v Porter[13] to which I referred earlier in these reasons. Mr Mead submitted that the accused did not know that what he was doing was wrong because:
… through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people [made his conduct] right or wrong.[14]
By reason of his morbid jealousy, he had not been able “to reason about the matter with a moderate degree of sense and composure”.[15]
[13] (1933) 55 CLR 182 at 188.
[14] Ibid at 188.
[15] Ibid at 189-90.
Even if one accepts for the moment that the accused was in the exquisite emotional state described by Professor Mullen, it is difficult to see how that deprived the accused of the ability to reason rationally or with a moderate degree of composure about the moral wrongness of striking Ms Mazey so repeatedly and so severely as to knock her senseless and to cause her death.
I repeat that what the accused has to establish is that he did not know that his conduct in assaulting Ms Mazey was wrong. It is immaterial that he did not know that his suspicions were unfounded, or that Ms Mazey’s denials of infidelity were honest denials. What has to be established is that he did not know that it was wrong to strike and kick Ms Mazey.
Dr Nambiar suggested that the knowledge of the accused of the wrongfulness of the conduct could be tested by putting oneself in his deluded position, and by then inquiring whether, in that deluded condition, one might think it right or wrong to strike a third party. So, using different factual circumstances as an example, if the delusion was that a third party was about to harm the deluded person, he or she would not think it wrong to defend himself/herself by striking the third party. If, on the other hand, the delusion was more inconsequential, it would be wrong for the deluded person to strike a third party. As I understand it, Dr Raeside supported this approach.
Mr Mead was critical of this approach, submitting that it assumed an ability, in the context of the delusion, to think rationally. In other words, it seemed to assume the very question to be determined, ie, whether the person was able, in that circumstance, to think rationally of the reasons to which ordinary people made that action right or wrong. I consider that there is some force in that submission.
An alternative way of considering the matter is to consider the position as though the deluded belief, in the context of an intense emotional state, was true, ie, in this case, that instead of the accused’s belief that Ms Mazey had been unfaithful being delusional, it was a well-founded belief. Would a well-founded belief, in the context of an intense emotional state, that the object of his love had been unfaithful, and a desperation to have her confirm the infidelity and provide details about it, have deprived the accused of the knowledge that it was wrong to strike her? One can appreciate that the accused, in that state, might seek to pursue his aims by resort to violence, despite knowing that it was wrong to do so. It is not so apparent that his ability to reason about wrongness would be lost altogether.
Each of Dr Raeside and Nambier considered that the accused knew of the wrongfulness of his conduct.
In the present case, there are, in my opinion, a number of indicia that the accused knew that what he was doing was wrong.
In the first place, I attach significance to the duration of the assault and the opportunities for pause and respite which occurred during it. I have referred already to these occasions and it is not necessary to repeat them. I consider it unlikely that, at least at those times, his emotional state was at such an intense level that he could not think rationally about what was right and what was wrong. I also consider that the focussed quality of his conduct militates against a finding that the accused did not know that what he was doing was wrong.
I consider the lies told by the accused at the Lyell McEwin Hospital to be very relevant in the present context. Those lies were relied upon by Drs Nambiar and Raeside as indicating a knowledge by the accused of the wrongfulness of his conduct. They considered that it was because he knew that his actions were wrong that the accused sought to avoid responsibility for them by his lies.
Strictly speaking, as Professor Mullen pointed out, the fact of the lies is an indication that, at the time the lies were told, the accused knew that what he had done was wrong and wished to avoid responsibility for it. It does not preclude altogether the possibility that he did not have that knowledge at the time of the assaults. It is possible, for example, that the accused was in such an agitated state at the time of the assaults that he did not know that what he was doing was wrong, but realised shortly afterwards what he had done, and how he would be held responsible for it and hence sought to exculpate himself. However, as Professor Mullen acknowledged, the lies told so soon after the assault do raise doubts about the claim that the accused did not know that his conduct was wrong. It is not unreasonable, he said, to assume that the state of mind of the accused an hour after the assault is indicative of the state of mind at the time of the assault. But before one makes that assumption, it has to be remembered that one is dealing with a person whose mind is disordered.
My conclusion is that the accused told the lies because of his knowledge that what he had done was wrong, and that he had knowledge of that wrongfulness at the time of the assault. The false account which the accused continues to give, in an exculpatory way, is another indication that the accused knew, at the time, that what he was doing was wrong.
I am confirmed in that view by the evidence, which I have accepted, that the accused had assaulted Ms Mazey on previous occasions and had been concerned that others should not learn the true cause of her injuries. That is evident in his telephone call to Ms Mazey inquiring whether she had told anyone about the injuries. It is also evident in the explanation proffered to LMB as having suffered a bruise to her cheek by her rolling onto his elbow during the night. Although knowing it was wrong, the accused was prepared to engage in the conduct because he thought Ms Mazey would not report him.
I refer again in this context to the amount of detail which the accused was able to remember. That too indicates that his mind was sufficiently collected during parts of the assault, and in its immediate aftermath to be able to “store” the memories. Professor Mullen said that in many domestic violence situations the aggressor does not recall much of what occurred nor the sequence in which events occurred. In many cases, it can be attributed to the inability of the mind to process information at times of high stress or high pressure. The very memories which the accused has, despite his cognitive impairment, suggest that his state of mind was not so overwhelmed that he could not remember quite an amount of detail. That being so, I think it likely that he retained sufficient composure to be able to reason rationally about the rightness and wrongness of what he was doing.
I accept the opinions of Drs Raeside and Nambiar on this topic.
For all these reasons, I conclude that the accused did know, during the course of the assault, that his actions constituting the assault on Ms Mazey were wrong.
“In Consequence of”
It follows from what I have said that, although satisfied that the accused did suffer from a mental impairment, I am not satisfied that the accused has brought himself within either of the limbs (b) or (c) of s 269C. This conclusion makes it unnecessary to consider the third limb of a mental impairment offence. That is, if the accused did not know that his conduct was wrong, or had been unable to control his conduct, whether that was “in consequence of” his morbid jealousy.
There may be some difficulties in drawing the conclusion that this third limb was established. As already noted, the accused did not say himself that had lost his temper. There is, therefore, not a secure foundation for a finding that the morbid jealousy with the delusions of infidelity had produced such a state of loss of temper that the accused had lost the ability to control his conduct or did not know that his conduct was wrong. However, it is not necessary for me to explore these issues further. For the reasons I have already given, I am satisfied that the accused was able to control his conduct and did know that it was wrong.
Conclusion on Mental Incompetence
For these reasons, I was satisfied that the accused had not established, on the balance of probabilities that he was mentally incompetent to have committed the offence of murder of Ms Mazey. As already indicated, I announced my decision on that issue to the parties on 25 May 2006.
Mental Fitness to Stand Trial
The accused’s evidence extended for a little over three days. Professor Mullen was in court for much of the cross-examination on the third day of his evidence. During the afternoon break on that day, Professor Mullen raised with Mr Mead a concern about the mental fitness of the accused to stand trial. That concern was conveyed to the court. After a short adjournment, Mr Mead indicated that the trial should proceed and the cross-examination of the accused was completed. Mr Mead then applied to have the re-examination adjourned until the following morning. I acceded to that application.
On the following morning (11 May 2006), an application was made for an order for an investigation of the mental fitness of the accused to stand trial. Mr Mead relied only upon the fact that Professor Mullen had raised a concern about the accused’s fitness to stand trial, it being submitted that such an expression of concern by a forensic psychiatrist was, by itself, sufficient to establish reasonable grounds that the accused may be unfit to stand trial (CLCA s 269J).
I did not accede to the application at that stage. I was a little surprised by it, having observed the accused during the trial and in particular while he gave his evidence. In further submissions, it emerged that the accused may have said things in cross-examination which had not been anticipated by his legal advisors, or Professor Mullen, which it was thought raised issues about whether he was thinking rationally and whether he was confabulating. There was a concern as to whether the accused’s multiple sclerosis had resulted in cognitive impairment affecting his rationality. Professor Mullen was concerned that there may have been a decline in the accused’s intellectual state in the period of one month which had elapsed since he had last seen him.
Ultimately, I agreed to order an investigation into the mental fitness of the accused to stand trial. I did so with some reluctance as I thought that there were limited grounds for doubting the accused’s mental fitness to stand trial. Furthermore, the mental fitness of an accused to stand trial is to be presumed unless it is established that the person is mentally unfit to stand trial (CLCA s 269I). My reluctance stemmed from the fact that the accused had seen three experienced forensic psychiatrists prior to the trial, none of whom had raised any issue about fitness to stand trial. On the contrary, one (Dr Raeside) had expressly stated his view that the accused was mentally fit to stand trial. In addition, the accused was represented by an experienced counsel and an experienced solicitor who had spent many hours with the accused. Neither of them had previously suspected that there was any issue about the accused’s fitness to stand trial. I had myself observed the accused in the witness box. I had not seen any indication that the accused was not following or addressing the issues in the trial.
However, there was evidence that the condition of multiple sclerosis can cause cognitive impairment. Accordingly, the issue having been raised, I thought it appropriate to accede to the application and, on the application of Mr Mead, I ordered a neuropsychological assessment of the accused.
That assessment was carried out by Mr Reid on 15 May 2006 and a report dated 16 May 2006 was provided to the court. I have referred above to relevant aspects of Mr Reid’s report and will not repeat it. With respect to the matters specified in s 269H of the CLCA, Mr Reid reported:
(a)I believe that [the accused] is able to understand and is able to respond rationally to the charges or allegations he is facing.
(b)Similarly, I believe that [the accused] is able to exercise and give rational instructions about his procedural rights.
(c)I believe that with some qualification, [the accused] is able to understand the nature of the proceedings and to follow the evidence or the course of the proceedings.
Mr Reid went on to say that the accused may have some difficulty in the effective processing of more complex information, and that where pressed to make complex decisions he might have difficulty, resulting in some degree of confusion. Mr Reid recommended a régime during the accused’s own evidence of ten minutes rest being provided after 30 minutes of evidence. When he was not himself in the stand, a brief rest period after every hour was recommended.
When the trial resumed after receipt of Mr Reid’s report, Mr Mead did not contend that the accused should be found to be mentally unfit to stand trial. He did, however, (in effect) foreshadow that a submission would be made about the weight to be attached to the accused’s evidence in light of Mr Reid’s report and recommendation.
At the conclusion of the evidence and representations on the issue of fitness to stand trial, I indicated my satisfaction that the accused was fit to stand trial. I was not satisfied that the presumption contained in s 269I of the CLCA had been displaced. I said that I would provide more detailed reasons later. The following are my reasons.
Although the régime for the taking of evidence recommended by Mr Reid had not been followed during the trial, I did not consider that it compromised the quality of the evidence which had been given, nor the accused’s understanding of it. I did not consider such a regime to be necessary at the time the evidence was being given, nor did I consider it necessary, on reflection, having considered Mr Reid’s report. I thought it was appropriate to give effect to my own assessment of the way the accused had coped in the witness box. There had been no indication at all that a régime of that kind was necessary. The accused had coped well in the witness box. Although I did not have any oral evidence from Mr Reid at the time I gave my ruling on the issue of fitness to stand trial, I note the following passage from Mr Reid’s cross‑examination during the trial of the accused’s mental competence on the effect which the court’s sitting régime may have had on the accused’s evidence:
I’ve provided an opinion in my report based on my findings, if you like, in an office examination setting and based on the known condition he has from all the information I have to hand. On the basis of my findings I have raised the possibility that he could have difficulty in dealing with any information for a prolonged period and especially where information is quite complex and that’s regardless of whether that is in a court setting or any other setting. So, I attempt to extrapolate from an office setting potentially to another setting and that’s always fraught with danger, so that’s why we raise it as a possibility and make suggestions. To actually determine whether or not that is a likelihood in any given situation, it probably is useful to look at the way he copes in those other situations, including the court setting. (Emphasis added.)
In my assessment of the accused’s evidence, he did not demonstrate any more than the usual fatigue which is to be expected of persons unused to concentrating for prolonged periods who are in the witness box for extended periods. The accused conducted himself well in addressing the cross-examiner’s questions, even when he had been in the witness box for a long period.
During the course of his evidence, I drew to the attention of the accused the distinction between having an actual recollection of an event and the making of a surmise about what had occurred. I asked him not to surmise. The accused responded by telling me that if he did not recall exactly what had happened then he would indicate that by saying “I don’t recall”. I accept that the accused did not always seem to keep to that intention.
There are a number of indications that the accused understood the nature of the proceedings, that he followed the questions and that he was answering appropriately (whether they were truthful or complete answers is another issue of course). There were also a number of indications in the cross-examination that the accused well understood the implications in the cross-examiner’s questions and attempted to deal with them. For example, in one answer to Ms McDonald he said “If you are trying to get the fact I changed [my shirt] because I had blood on my shirt, that’s not the case”. On another occasion, he was able to indicate quite clearly the way in which a police officer (Mr Tully) had (he said) made an inaccurate entry on a plan which he had drawn. On another occasion, he sought to explain the presence of blood at various locations on the floor in the family room by attributing that to the actions of police officers walking through the family room without care and themselves spreading the blood. In relation to a suggestion that he pulled some hair (including the roots) from Ms Mazey’s head he drew to the cross-examiner’s attention to a paragraph in the forensic report indicating that there were no roots attached to the hair. The accused was able to correct a mistake in a question as to whether the shirt from which he had changed had been yellow or orange. On other occasions, in the cross-examination, the accused drew the cross-examiner’s attention to the fact that there was no evidence in the trial supporting a proposition which she had put. He proffered an explanation for the bruise on ALC’s knee. This is not a complete list of the examples indicating that the accused well understood the questions being asked of him, well understood the significance of the questions in the trial, and by which he demonstrated his familiarity with the evidence upon which the prosecution relied, but it is sufficient to indicate that the accused followed the issues in the trial, and the evidence, remarkably well.
Finally, I note that Mr Mead withdrew any suggestion that the accused had been confabulating during his evidence.
In short, having regard to the fact that a number of experienced professionals (both psychiatric and legal) had seen the accused prior to trial without raising any issue about his fitness to stand trial, to my own observations of him in the witness box, to the content of the accused’s answers during his evidence, and, finally, to Mr Reid’s report, I was quite satisfied that the accused was mentally fit to stand trial.
The Subjective Elements of the Offence
Having rejected the claim of that the accused was mentally incompetent to have committed the offence, it is now necessary to consider whether the prosecution has proved the subjective elements of the offence. The prosecution bears the ordinary criminal onus in relation to this part of the trial. Relevantly in the present circumstances, the prosecution must establish beyond reasonable doubt that:
1.the accused committed the assault with the intention of killing Ms Mazey, or alternatively, that he intended to inflict grievous bodily harm to Ms Mazey;
2.that the actions of the accused were deliberate, conscious and voluntary.
I remind myself of the presumption of innocence and that the accused does not have to prove anything.
The second aspect can be dealt with quite shortly. In my reasons concerning the accused’s mental competence, I said that I was not satisfied that the actions of the accused were entirely uncontrolled, nor that the accused was unable to control his conduct. I now record my finding, after applying the ordinary criminal onus, that the conduct of the accused was deliberate (it was not accidental), conscious (the accused knew what he was doing), and voluntary (the accused was able to control his will). I refer, without repeating, to my findings on the issue of mental competence. I do repeat, however, that I have made my present finding after applying the criminal onus.
Turning to the question of intention, Ms McDonald did not submit that the evidence showed that the accused had an intention to kill Ms Mazey. Rather, she submitted that it should be found that the accused had an intention to inflict grievous bodily harm to her.
Grievous bodily harm means really serious physical harm. It is immaterial that the accused did not desire Ms Mazey’s death. The question is whether the prosecution has proved that the accused had, at the time of the assault, the intention of causing grievous bodily harm. That intention is to be assessed in the light of all the circumstances which I have found proved. It is the accused’s actual intention which is relevant, not that which might be taken to have been possessed by an ordinary man in his circumstances.
As the state of mind of the accused at the relevant time has to be inferred from the evidence surrounding his actions, I remind myself that it is the combination of circumstances which I find proved which is to be considered, and that a finding that the accused did intend to inflict grievous bodily harm must be the only reasonable hypothesis to be drawn from those circumstances. I indicate again that I made my findings about what happened in the assault after applying the ordinary criminal onus.
I repeat again that I regard the evidence of the “lay” witnesses called by the prosecution to have been generally reliable.
The accused did give evidence and thereby exposed himself to an extensive cross-examination. It would have been difficult for the accused to have conducted his defence of mental incompetence without having given evidence. That has meant that in the trial of the subjective elements, the accused has not been able simply to have put the prosecution to proof without there being any evidence from him. I remind myself that I should assess the evidence of the accused in the same way that I assess the evidence of all the other witnesses. His evidence is not to be discounted because he is the accused.
Although the accused does not bear any onus at all with respect to intention, I think it convenient to commence by considering some points made on this topic by Mr Mead.
Mr Mead made the point that as it was only a blow or blows to the head which could have been the fatal part of the assault, it is the infliction of any such blow which is important. I accept that that is so, but that does not mean that the infliction of other blows is irrelevant, or that no inference may be drawn from them.
It was possible, the accused submitted, that Ms Mazey’s fatal injury occurred in a fall resulting from him pushing her away. It could not be inferred, it was submitted, that when the accused did push Ms Mazey away he had an intention to cause grievous bodily harm. The court should not accept the account of ALC that the accused had kicked Ms Mazey while she was on the ground. I have already recorded my findings accepting that the accused did kick Ms Mazey while she was on the floor.
Mr Mead drew attention to passages in the statements of a number of the accused’s friends which indicated the loving and caring nature of the relationship between the accused and Ms Mazey. (I note, however, that it appears that these friends had had limited contact with the accused and Ms Mazey in the last 12 months of her life). It was submitted that apart from the accused’s delusions, there was no other reason for the accused to intend harm to Ms Mazey. Their relationship was one which had lasted for over three years.
Mr Mead submitted that correspondence written by the accused to Ms Mazey did not indicate any intention to harm her. On the contrary, it revealed affection. It also revealed a certain torment in the accused’s mind consistent with his morbid jealousy and the delusions. It was submitted that the accused did genuinely care for ALC and that it is unlikely that he would have intended to inflict grievous bodily harm on Ms Mazey whilst ALC was in the home.
The accused’s actions should be understood, it was submitted, as a product of his delusion and, in particular, as actions taken with a view to having his suspicions towards Ms Mazey confirmed, but without an accompanying intention to cause grievous bodily harm. Even if the accused had an intention to cause some harm, the court should not be satisfied that it was an intention to cause grievous bodily harm. The accused’s actions after the assault confirmed, it was said, that this was so. When the accused realised what he had done he knelt by Ms Mazey and cried; he wiped her face, he cleaned up her blood and he sought hospital treatment for her. Having taken ALC to his parents, he did not return to the home to clean up further, or to remove incriminating evidence. Instead he returned to the Lyell McEwin Hospital where Ms Mazey was still being treated.
I refer to my earlier findings as to the way in which the assault occurred. Those findings contain the circumstances of the assault from which the inference as to the accused’s intention is to be drawn. It is not possible to identify a precise blow or blows, punch or punches, kick or kicks which caused the fatal injuries. It may well have been a combination of these. But, as previously indicated, I am satisfied beyond reasonable doubt that Ms Mazey did not suffer the fatal injury or injuries as a result of a fall. I accept the evidence of Dr Cala in this respect.
I am satisfied beyond reasonable doubt that the accused did have an intention to inflict grievous bodily harm to Ms Mazey when he struck, punched and kicked her. He had a belief that Ms Mazey had been unfaithful, and had, in effect, betrayed him. He was insistent that she “say the name”. He wanted to force it from her. He was prepared to exercise considerable violence in order to do so, including by punching and kicking her. That is what he did. He was accustomed to beating Ms Mazey. He was not inhibited from striking her by the norms of conduct accepted by most people. The number and severity of the blows and kicks which he inflicted on her is indicative, by itself, of an intention not only to injure, but to do so in a serious way. The accused did not intend to kill Ms Mazey but he was prepared to hurt her severely in order to force an admission from her.
I am satisfied that the subjective elements of the offence of murder have been made out.
Provocation
It was submitted that the prosecution had not excluded the possibility that the accused had been acting under provocation, and that if I was satisfied that the subjective elements of the offence of murder had been established, I should return a verdict of not guilty of murder, but guilty of manslaughter.
Mr Mead referred to a passage in the judgment of King CJ in The Queen v R:
The killing of one person by another with the intention to kill or do serious bodily harm is murder. Such a killing may, however, be reduced to manslaughter if the killing results from a sudden and temporary loss of self-control on the part of the killer which is brought about by acts or words of the deceased amounting in law to provocation. To amount in law to provocation the acts or words must satisfy the following test:
(1) they must be done or said by the deceased to or in the presence of the killer;
(2) they must have caused in the killer a sudden and temporary loss of self-control rendering the killer so subject to passion as to make him for the moment not master of his mind;
(3) they must be of such a character as might cause an ordinary person to lose his self-control to such an extent as to act as the killer has acted.[16]
[16] (1981) 28 SASR 321 at 321-2.
I refer also to a similar passage in the judgment of King CJ in R v Cooke:
1.There must be words or conduct on the part of the accused which the law regards as provocation.
2.There must be a temporary loss of self-control by the accused in consequence of which the killing occurs.
3.The loss of self-control must be caused by the deceased’s provocative words or conduct.
The first of these tests is objective in character. The law regards as provocation only words or conduct which a person, in the situation of the accused and possessed of such of the accused’s characteristics as might affect his susceptibility to the injury and insult offered by the deceased’s words or conduct, but sober and possessed of ordinary powers of self-control, might react to by losing his self-control and doing what the accused in fact did. The second test is purely subjective and purely a question of fact. Was there in fact a loss of self-control and did it cause the killing?[17]
[17] (1985) 39 SASR 225 at 235.
It was submitted that in the event that I considered that the accused was deluded about Ms Mazey having been unfaithful, and that Ms Mazey had been confronting the accused physically to impress upon him the honesty of her denials in an attempt to maintain their relationship, I could not be satisfied that the “defence” of provocation had been excluded.
There can be difficulties in applying the law relating to provocation to an accused whose conduct is said to have been provoked by conduct about which the belief or perception of the accused is delusional. Reference was made in this respect to the decision of the Full Court of the Supreme Court of Victoria in R v Voukelatos.[18] In that case it was held that if there was evidence that the accused had been provoked into killing the victim by a mistaken belief about her conduct, provocation should be left to the jury even though the accused’s belief was wholly the product of a delusion.[19] Reference was also made to Stingel v The Queen.[20]
[18] [1990] VR 1.
[19] Ibid at 4 per Young CJ; at 18-19 per Murphy J.
[20] (1991) 171 CLR 312.
In my opinion, it is not necessary to consider the niceties of the application of the law of provocation in these circumstances. That is because the factual premise upon which it is said that provocation has not been excluded did not, on my findings, exist. On my findings there was no conduct, capable in law of constituting provocation by Ms Mazey. I have already indicated my satisfaction, beyond reasonable doubt, that Ms Mazey was not confronting the accused. She was not confronting the accused at all, let alone doing so in a persistent fashion. On the contrary, Ms Mazey was trying to avoid the accused, including by leaving the house altogether but was prevented by the accused from doing so. For this reason alone I am satisfied that the prosecution has, beyond reasonable doubt, excluded as a possibility the very action which it is said was provocative, and to which it is said the accused was reacting.
Furthermore, I have found that the accused did not in fact lose control completely. But even if he did, I do not consider that an ordinary person suffering from a delusion in the nature of a conviction that his loved one had been unfaithful, and irritated by her repeated confrontation and insistence that he believe her denials, would be so provoked by that conduct that he would lose control for the whole of the period during which the subject assault occurred in this case and have committed the assault which the accused did.
Although Mr Mead did not submit that conduct of Ms Mazey which the accused in his deluded state believed had occurred, could by itself amount to provocation in law, I have considered the possibility that that might be so. I am satisfied that an ordinary person in that position would not have lost control in the way in which it is submitted on behalf of the accused, that he did.
For these reasons, I am satisfied the “defence” of provocation has been excluded.
Lawfulness
It is not submitted that the assault on Ms Mazey was lawful. Self-defence was not raised at all. It is plain that the assault was unlawful.
Conclusion
In the light of these findings, I record my satisfaction, beyond reasonable doubt that the accused is guilty of the murder of Nicole Sheree Mazey.
4
14
1