R v Dimasi - [2025] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v DIMASI
Criminal Trial by Judge Alone
[2025] SASC 7
Judgment of the Honourable Justice McDonald (ex tempore)
28 January 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - EVIDENCE - MEDICAL AND PSYCHIATRIC EVIDENCE
The defendant was charged with the offence of murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) (the Act). The offence is alleged to have occurred on 2 December 2023 against the defendant’s wife.
On 23 August 2024, the defendant elected for trial by judge alone pursuant to s 269B(1) of the Act.
The defendant raised the defence of mental unfitness to stand trial pursuant to s 269H and mental incompetence pursuant to s 269D of the Act.
On 30 September 2024, an order was made, pursuant to s 269WA of the Act, that the defendant be subject to an examination by a psychiatrist or other appropriate expert relevant to the question of the defendant’s mental competence to commit the offence and his fitness to stand trial. Following the return of the report, an order was made pursuant to s 269J of the Act that there be an investigation into the defendant’s fitness to stand trial. Under s 269L, the objective elements of the offence were tried first, followed by an investigation into the defendant’s mental fitness to stand trial.
Pursuant to s 269N A(2) of the Act, the objective elements of the offence were established beyond reasonable doubt and recorded. Pursuant to s 269N B(5) of the Act, with the agreement of prosecution and defence, and with regard to the contents of the report, an investigation into the defendant’s fitness to stand trial was dispensed with and a declaration was made that the defendant was mentally unfit to stand trial.
Held:
1.Pursuant to s 269N A(2) of the Act the objective elements of the offence have been proved beyond reasonable doubt.
2.Pursuant to s 269N B(3) of the Act the defendant is found to be mentally unfit to stand trial and is liable to supervision under Division 4, Subdivision 2.

Criminal Law Consolidation Act 1935 (SA) s 11, s 269B, s 269H, s 269D, s 269I, s 269J, s 269L, s 269O, s 269N, s 269NB, s 269WA, referred to.

R v DIMASI
[2025] SASC 7
Criminal:

McDONALD J (ex tempore): Francesco Dimasi has been charged with the offence of murder contrary to s 11 of the Criminal Law Consolidation Act1935 (SA) (‘the Act’).
The offence is alleged to have occurred on 2 December 2023 against Mr Dimasi’s wife, Maria Dimasi. At the time of her death, Mr and Mrs Dimasi had been married for 67 years.
Mr and Mrs Dimasi had resided together at Thornton Street, Findon, since 1963 and have four adult children.
On the evening of 2 December 2023, Mrs Dimasi attended at an event at the Sicilian club in Klemzig. She left the event at about 8.45 p.m. and was driven home by a friend. At 11.17 p.m. on the same night, Mr Dimasi called emergency services and repeatedly stated that he had killed his wife. Police arrived at the house at 11.26 p.m., the door was unlocked and they located Mr Dimasi seated in a walking frame in the dining room with blood spatter on his clothes and a large kitchen knife on the dining table along with an empty bottle of spirits. Mr Dimasi told the police his wife was in the bed.
Mrs Dimasi was located in her bedroom with significant lacerations to her body. Police commenced CPR and applied gauze and a tourniquet. Mrs Dimasi did not regain signs of life and was declared deceased by paramedics at 11.43 p.m.
A post-mortem examination was conducted on 7 December 2023. The cause of death was multiple sharp force injuries.
It is estimated that the time of the offence, Mr Dimasi had a blood alcohol concentration between 0.26 and 0.30.
At 9.45 p.m. on 3 December 2023, Mr Dimasi was interviewed by police. He admitted that he had killed his wife and asked the police to kill him.
Issues arising
Mr Dimasi has raised the defence of mental unfitness to stand trial pursuant to s 269H of the Act and mental incompetence pursuant to s 269D.
On 23 August 2024 Mr Dimasi elected for trial by judge alone pursuant to s 269B(1) of the Act.
On 30 September 2024, I made an order that pursuant to s 269WA of the Act that Mr Dimasi was required to undergo an examination by a psychiatrist or other appropriate expert relevant to the question of Mr Dimasi’s mental competence to commit the offence and his fitness to stand trial.
I requested that the report be authored by either a neuropsychologist or a psychiatrist that specialises in geriatrics and has the requisite forensic training. I have since received a report from Dr Emma Fitzgerald, a clinical neuropsychologist. For the purpose of preparing the report, Dr Fitzgerald interviewed Mr Dimasi at the place at which he is residing with the assistance of an Italian speaking interpreter.
In her report dated 18 December 2024, Dr Fitzgerald expressed the view that Mr Dimasi was mentally competent to commit the offence and therefore does not have a defence available to him under s 269D of the Act. Dr Fitzgerald, however, found that on the balance of probabilities Mr Dimasi is unfit to stand trial as defined in s 269H of the Act.
269J – Order for investigation of mental unfitness to stand trial
Based on Dr Fitzgerald’s report, I found that there are reasonable grounds to suppose that Mr Dimasi is mentally unfit to stand trial and I therefore ordered that there be an investigation into Mr Dimasi’s fitness to stand trial.
269L – Trial Judge’s discretion about the course of the trial
Pursuant to s 269L of the Act, a trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with a trial of the defendant’s fitness to stand trial. I propose to deal firstly with the question of whether the prosecution have proved the objective elements of the offence.
The objective elements
Although Mr Dimasi concedes that the objective elements of the offence have been established, the Court must hear evidence and representations by the prosecution and defence relevant to the question of whether the Court should find that the objective elements have been established pursuant to s 269N A(1) of the Act. The objective elements of the offence of murder are:
1.that Mr Dimasi caused the death of his wife; and
2.that the act or acts that caused Mrs Dimasi’s death were unlawful.
The prosecution have filed a volume of affidavits upon which they rely to establish the objective elements of the offence.[1] Mr Dimasi agrees that the evidence contained in those affidavits establish the objective elements of the offence of murder beyond reasonable doubt.
[1] Affidavit of Nancy Colaco (5 January 2024).
Affidavit of Teresina Camarra (5 March 2024).
Affidavit of Aleesandro Antonio Dimasi (18 May 2024).
Affidavit of Nicola Dimasi (20 May 2024).
Affidavit of Stefan Dimasi (20 May 2024).
Affidavit of Carmel Ieraci (3 January 2024).
Affidavit of Carmel Ieraci (25 February 2024).
Affidavit of Carmel Ieraci (9 May 2024).
Affidavit of Carmela Vozzo (16 January 2024).
Affidavit of Carmen Vinning (11 January 2024).
Affidavit of Sally Cole (31 January 2024).
Affidavit of Srinivas Golla (8 May 2024).
Affidavit of David Yu (18 May 2024).
Affidavit of Willoughby James-Martin (4 February 2024).
Affidavit of Natasha Altamura (12 January 2024).
Affidavit of Emma Collett (20 December 2023).
Affidavit of Melanie Elsegood (3 December 2023).
Affidavit of Matteo Impagnatiello (4 December 2023).
Affidavit of Matteo Impagnatiello (19 January 2023).
Affidavit of Darren Linton (19 December 2023).
Affidavit of Rowen Male (25 January 2024).
Affidavit of Thomas Syrmas (18 December 2023).
Affidavit of Thomas Syrmas (17 February 2024).
Affidavit of Marc Grabowski (9 May 2024).
Affidavit of Peter Stockham (20 May 2024).
Affidavit of Steven White (19 December 2024).
Affidavit of Stephen Wills (13 May 2024).
Affidavit of Jason White (13 September 2024).
Affidavit of Vince Dimasi (27 August 2024).
Affidavit of Robyn Buller (27 March 2024).
I have read the affidavits relied upon by the prosecution. The only available inference arising from the evidence contained in the affidavits is that Mr Dimasi stabbed his wife using the knife that was seized by the police and in doing so caused her death.
I find that the objective elements have been proved beyond reasonable doubt.
Mental fitness
Pursuant to s 269I of the Act, a defendant is presumed to be fit to stand trial unless it is established on an investigation under Division 3 that he is mentally unfit to stand trial. Ordinarily if a judge finds that the objective elements have been proved, the Court will hear relevant evidence and representations by the defence and prosecution on the question of the defendant’s fitness to stand trial.
Pursuant to s 269N B(5) the Court may dispense with the investigation into mental fitness to stand trial and declare that a defendant is mentally unfit to stand trial and declare that he is liable to supervision, if the prosecution and the defence agree.
The prosecution and Mr Dimasi invite me to adopt the latter course. It is agreed between the parties that the report of Dr Fitzgerald is sufficient to displace the presumption of fitness to stand trial.
Regardless of the attitude of the parties, it is necessary for me to consider whether in all of the circumstances of this case it is the appropriate course to adopt.
For that reason, I will say something more about Dr Fitzgerald’s report. For the purpose of preparing the report, Dr Fitzgerald had available to her all of the affidavits filed in this Court. In addition, she had the opportunity to make observations of Mr Dimasi during her interview with him and to also speak with his current treating doctor, Dr Rebecca Mott-Lake.
In her report, Dr Fitzgerald summarised Mr Dimasi’s presentation in the following terms:
Mr Dimasi presented as an elderly gentleman who had the bed sheets pulled over his body. He coughed frequently, and he apologised each time. He spoke in Italian throughout, however Ms Davidde reported that she had trouble understanding a lot of what he said, partly due to slurred speech, but also because he mixed up the syllables of words. She stated about 60% of his communication was unintelligible, and that his dysarthria made it hard to understand him. He repeated certain phrases frequently in response to questions. Mr Dimasi was alert but impressed as confused. He cried on and off throughout the interview. He did not provide any spontaneous information. He looked at the examiner when his name was spoken, but for the most part he did not answer questions and instead provided nonsensical statements. For example, when asked where he was, he stated “I must because I am always occupied”. When asked what sort of place he was in, he replied “the Lord of the world”. He was unable to directly answer this question, but when asked the same question later in the interview, he said he was in hospital. He did not name the hospital when asked. He was unable to name the hospital he was in when given two choices … I asked if he was unwell, and he said, “Yes, I am not well”.
Mr Dimasi was unable to state the year correctly, and said it was 1920. He was unable to state his birthday, and when asked what year he was born, he said “16….”, and then “I don’t know precisely”. He was asked if he required help with showering and dressing, and he gave a response that was difficult to follow.
Dr Fitzgerald asked Mr Dimasi a series of relatively straightforward questions in an attempt to gauge his understanding of the legal process in which he is involved. His responses were a combination of non-responsive, unintelligible and tangential answers.
By way of example, when Dr Fitzgerald asked Mr Dimasi what the police have said that he has done, he responded “To be sure in the world I cannot be … to be … I would like a person to be together” at which point the remainder of his answer became unintelligible. Then when Dr Fitzgerald asked him who he was accused of killing, Mr Dimasi responded “I don’t know. I don’t feel like being … ”. When he was asked the same question again, he said “I can’t know everything that needs to be done”.
Dr Fitzgerald asked Mr Dimasi if he had a lawyer and he did not provide a sensible answer. She asked Mr Dimasi if he had met Trish Johnson. He initially said that he did not understand what she was saying and then gave a nonsensical answer finishing with “… like a dream”. She asked Mr Dimasi if he had attended court via video conference and he said he had but he was unable to provide a sensible response when asked further about this, saying “I always try to be … to be sure that I’ve never done any ill”.
At the time that Dr Fitzgerald interviewed Dr Mott-Lake, Dr Mott-Lake had only been working on Mr Dimasi’s ward for about a week. She was, however, able to access and refer to Mr Dimasi’s file. Dr Mott-Lake confirmed that Mr Dimasi has a diagnosis of vascular dementia. She reported that Mr Dimasi is bedbound and requires two people to assist with moving or washing him. He requires full assistance for feeding and requires full-time care.
Behaviourally, Mr Dimasi gets agitated and he hallucinates. His medications include antipsychotics, Benzodiazepines and he is provided extra medication for “break-through” symptoms. She described him as alert, but confused, and he is unable to engage in meaningful conversations. He is incontinent of both bladder and bowel. His guardian is the Office of the Public Advocate. He has been on the ward for 197 days which Dr Mott-Lake advised was much longer than the ward’s average length of stay. She stated that they provide medical assistance for minor ailments but that he is “entering end of life”.
As a consequence of Mr Dimasi’s presentation, Dr Fitzgerald was unable to undertake any neuropsychological testing. Based on her interviews with Mr Dimasi and Dr Mott-Lake, Dr Fitzgerald formed the opinion that Mr Dimasi has severe vascular dementia and, accordingly, qualifies as having a mental impairment as defined by the Act.
Having determined that Mr Dimasi has a mental impairment, Dr Fitzgerald considered the test for mental unfitness as set out in the Act. Section 269H provides:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Dr Fitzgerald considered each limb of the test and concluded:
a)It was difficult to ascertain how well Mr Dimasi understood questions, as his responses were unreliable and were generally not related to the question when they did make sense. He was unable to state what he had been charged with, but when he was told he was charged with Murder, he stated “sure”. He was unable to say who he had been accused of murdering. He responded “yes” when he was told he was accused of murdering his wife, but later I asked him if Maria was alive, and he responded “yes”. Overall, he was unable to participate in an interview or an assessment due to the severity of his dementia. I formed the opinion that Mr Dimasi was so cognitively impaired that he was unable to understand the charge or respond rationally to the charge.
b)Mr Dimasi does not have the capacity to understand or respond to any questions regarding his procedural rights. Given his severe cognitive impairment, he is unable to exercise his rights. Mr Dimasi is completely unable to instruct his lawyer.
c)Mr Dimasi was unable to engage in any conversation around his Court matter. He was able to unreliably follow some simple instructions. Dr Mott-Lake indicated that he is unable to engage in meaningful conversation. Mr Dimasi is completely unable to understand the nature of the proceedings or follow the evidence due to his advanced dementia.
Based on the interview with Mr Dimasi and the information provided by his doctor, Dr Fitzgerald formed the opinion that Mr Dimasi is not fit to stand trial.
On the basis of the material before me and, in particular, the report of Dr Fitzgerald, I find that pursuant to s 269N B(3) Mr Dimasi is mentally unfit to stand trial. Having made that finding, I am required to order that Mr Dimasi is liable to supervision under Division 4, Subdivision 2 of the Act.
269O – Supervision orders
Section 269O of the Act provides that where a defendant has been declared liable to supervision under Part 8A of the Act, the Court is required to determine the disposition of that person. The Court may release the defendant unconditionally or may make a supervision order either committing the defendant to detention or releasing the defendant to a condition of licence.
The only appropriate outcome in this case is that Mr Dimasi be liable to supervision and I make that order.
Having made that order, pursuant to s 269O(2), it is necessary for me to fix a limiting term. A limiting term is the equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the Court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established. The mandatory sentence for murder is life imprisonment. I therefore fix a limiting term of life.
I will now hear submissions from the parties about how to proceed from here.