R v Dellamarta - [2020] VSC 745

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2020 0124

THE QUEEN	Crown
v
BREE DELLAMARTA	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATES OF HEARING:	21, 22 and 28 September 2020
DATE OF JUDGMENT:	13 November 2020
CASE MAY BE CITED AS:	R v Dellamarta
MEDIUM NEUTRAL CITATION:	[2020] VSC 745

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CRIMINAL LAW – Mental impairment – Accused charged with murder – Whether accused unfit to stand trial – Question determined by judge alone – Conflicting evidence of forensic neuropsychologist and clinical psychologist – Question as to minimum content of fitness criteria – Accused fit to be tried – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 6, 7, 91, 92, 93, 94 and 95.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Glynn	Office of Public Prosecutions
For the Accused	Ms J Munster	Victoria Legal Aid

HER HONOUR:

Background

Bree Dellamarta, the accused, is charged with murder.

The Crown alleges that on 23 January 2020 she stabbed Mark Ward once to the chest with a large knife in the kitchen of her unit, where she lived alone. The deceased and the accused had been in a relationship for some four years, although did not co-habit. The deceased was staying the night with the accused following a night out with family and friends. The fatal incident occurred following a verbal dispute between them not long before midnight.

The accused telephoned 000 at 12.02 am. Paramedics arrived at about 12.09 am. Mr Ward was pronounced dead at 12.18 am.

A later post mortem examination determined the cause of death to be a single stab wound to the left chest penetrating the heart with a left haemothorax.

The accused was arrested at the scene. She admitted stabbing the deceased, telling police at the scene that both she and the deceased had been drinking and she did not know if he was going to hit her. The accused later participated in a formal police record of interview, in the presence of an independent third person, where she again admitted stabbing the deceased.

Question of Fitness

The accused has a mild intellectual disability. There is a ‘real and substantial question’[1] of her fitness to stand trial. That question was raised in a neuropsychological report authored by Martin Jackson on behalf of the accused in which he expressed the opinion that the accused:

is not fit to stand trial on the basis that she does not understand and would not be able to exercise her right to challenge jurors, she would be unable to follow the course of the trial, she would be unable to understand the substantial effect of any evidence that may be given in support of the prosecution and she would be unable to give instructions to her legal practitioner. The use of compensatory strategies will not assist her to the point where she would be fit.[2]

[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dellamarta

Details

AGLC: R v Dellamarta [2020] VSC 745
Case: [2020] VSC 745
Decision Date: 13 November 2020

CaseChat Overview and Summary

Dellamarta was charged with murder, and the case came before the Supreme Court of Victoria. The primary dispute was whether the accused was fit to stand trial, as defined by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The court had to consider the evidence of two experts, a forensic neuropsychologist and a clinical psychologist, who provided conflicting opinions regarding the accused's mental state and ability to participate in a trial. The central legal issues revolved around determining the minimum content of the fitness criteria as outlined in the relevant sections of the Act, specifically ss 6, 7, 91, 92, 93, 94, and 95. The court needed to decide whether the accused's mental impairment rendered them unfit to stand trial, or if they were fit to be tried despite their mental condition.

The court weighed the conflicting evidence from the experts and considered the statutory framework provided by the Act. It concluded that the accused was fit to be tried, despite the evidence of mental impairment. The court found that the accused could understand the nature of the proceedings, instruct counsel, and participate in their defence. This determination was based on the accused's ability to engage with the trial process, despite their mental condition. The court's decision highlighted the importance of considering the specific abilities required for a person to be deemed fit to stand trial, rather than focusing solely on the presence of a mental impairment.

The Supreme Court of Victoria found that the accused was fit to be tried, and the matter proceeded to a trial on the merits. The court's decision emphasised the need to assess the specific abilities required for a person to be deemed fit to stand trial, rather than solely focusing on the presence of a mental impairment. The court also noted the importance of considering the evidence provided by experts in the field, but ultimately made a decision based on the statutory criteria outlined in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Orders