R v Munze
[2020] VSC 272
•18 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0226
| THE QUEEN | |
| v | |
| WERNER MUNZE | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 May 2020 |
DATE OF JUDGMENT: | 18 May 2020 |
CASE MAY BE CITED AS: | R v Munze |
MEDIUM NEUTRAL CITATION: | [2020] VSC 272 |
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CRIMINAL LAW– Accused 84 years of age – Accused charged with murder – Whether accused unfit to stand trial – Question to be determined under the temporary measures of Part 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) by judge alone – Evidence of neuropsychologists, forensic psychologists and forensic psychiatrist as to acquired brain injury and dementia – Joint submission by prosecution and defence that accused is unfit – Accused is unfit to be tried – Accused not likely to become fit to be tried in the next 12 months - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 6, 91, 92, 93, 94, 95.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Hevey | Office of Public Prosecutions |
| For the Accused | Mr P Kounnas | McFarlane Criminal Lawyers |
HER HONOUR:
The accused, Werner Munze, is charged with the murder of his wife, Ursula Munze.
On 2 March 2019 he was located on the floor of the matrimonial home lying next to the body of his deceased wife. Mrs Munze, then aged 74 years, had suffered significant blunt force trauma to the head. The accused, then aged 83 years, was dehydrated and had multiple lacerations to his abdomen and wrists, presumed to be self-inflicted. To both paramedics and police officers he appeared to be confused and non-responsive to questioning.
Since that time he has been subject to various neuropsychological testing and psychiatric assessment completed on behalf of both his solicitors and the prosecution. He has been diagnosed with significant cognitive impairment arising from multiple causes.
There is a ‘real and substantial question’[1] as to the fitness of the accused to stand trial.
[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘Act’), s 9(1).
Ordinarily, that would trigger an investigation under Part 2 of the Act and the empanelment of a jury to determine the issue. But, during the COVID-19 pandemic, the temporary measures in Part 11 of the Act mandate that the issue of the fitness of a person to be tried is to be determined by a judge alone.
On 11 May 2020 the investigation was conducted via the WebEx platform. The accused attended via video-link from Port Philip Prison. Legal representatives and expert witnesses appeared from various remote locations. At the conclusion of that hearing I reserved my decision.
For the reasons that follow, I find that the accused is not fit to stand trial.
The Crown Case
The deceased was last observed alive outside the house she shared with the accused in Neerim South during the early evening of 24 February 2019. She was taking rubbish bins to the curb. Her body was found on 2 March 2019.
Although the charge period spans those two dates, the prosecution case is that given the inability of anyone to contact the deceased in that period coupled with the state of her body upon discovery, it is likely that she was killed on the night of 24 February.
On that evening, the same neighbour who had observed the deceased moving the rubbish bins heard a loud bang, described as being like someone hitting a wall, coming from the Munze home. From the shared boundary the neighbour observed the lounge room light of that home to be lit.
Over the next days that neighbour and his wife made further observations that lights in the lounge room and the deceased’s bedroom were lit.
During the afternoon of 27 February 2019 the same neighbours both observed a powerful smell of decay in their garden. That smell persisted to the extent that on 2 March 2019 they instituted a search for a dead animal.
In the meantime, a friend of the deceased and accused made unsuccessful attempts to speak with the deceased by telephone. He made a visit to their house on 26 February 2019 where he saw the lounge room light on. No answer was received to his knock on the front window. He made further visits on 28 February and 1 March 2019, again observing the lit lounge room light and receiving no answer to his knock. Worried by the lack of response, on 2 March 2019 the friend rang 000 to request a welfare check.
On the same day, the deceased’s brother and his wife arrived at the Munze home for an annual visit from interstate. They received no answer to their knock. The deceased and her brother had last spoken on 7 February 2019. A text message sent to the deceased on 26 February 2019 and phone calls on that day and the following days went unanswered.
After discussing the situation with the neighbour and the deceased’s friend, the deceased’s brother looked into the kitchen and saw his sister lying on the floor. He and the neighbour broke the window with a rake and the deceased’s brother entered the house. He saw the accused lying next to the deceased. Shortly thereafter paramedics and police arrived at the scene.
The accused was observed to have more than 20 scratch marks to his lower abdomen and scratches or lacerations to both wrists. He was dehydrated. Bloody footprints were found throughout the house and there was a large blood stain on the sheet of a bed. An overturned and broken plastic garden chair was located in the kitchen. A noose tied round an exposed beam and a ladder next to the noose were found in the lounge room.
When spoken to by the first treating paramedic the accused said that he did not know what had happened. The first police officer on the scene found the accused to be confused and unaware of what day it was.
The accused was arrested and taken to hospital. A recording of the conversation en route was made. The recording indicates that the accused was apparently confused and occasionally non-responsive to questions.
The accused was taken to hospital where another police member spoke to him briefly. The accused did not make much sense.
Since his arrest the accused has spent considerable time in hospital. He was discharged to Melbourne Assessment Prison on 26 June 2019. Since 16 June 2019 he has been held in the St John’s medical unit of Port Phillip Prison.
The autopsy of the deceased established the cause of death to be blunt head trauma resulting in comminuted skull vault fractures, multiple lacerations and right pinna laceration.
Relevant Legal Principles
It is axiomatic that a person cannot be tried for a criminal offence unless they are fit to stand trial.[2] The question of an accused’s fitness to stand trial is a question of fact. Whilst ordinarily the province of a specially convened jury and governed by the operation of Part 2 of the Act, the suite of temporary measures in response to the COVID-19 pandemic enacted in Part 11 overrides aspects of the Part 2 investigation process.
[2]Eastman v The Queen (2000) 203 CLR 1.
Section 92 of the Act states that ‘the question of a person’s fitness to stand trial is to be determined on the balance of probabilities by the court at an investigation into the fitness of the accused to stand trial’. Section 93 of the Act mandates that at a fitness investigation the court must hear any relevant evidence and submissions put to it by the prosecution and defence. It may, if of the opinion that it is in the interests of justice to do so, call evidence of its own motion, require the accused to undergo medical examination or require the results of such examination to be put before the court.
Section 94 permits two findings: that the accused is fit to stand trial or that the accused is not fit to stand trial.
Pursuant to s 93(5)(a), if the finding is that the accused is not fit to stand trial the court must determine by reference to the relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months.
Section 95 governs what occurs post investigation by the court. If the accused has been found to be fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures.[3] If the accused has been found to be unfit, but likely to become fit within the next 12 months, the court must adjourn the matter to the end period specified by the court as being that by which the accused is likely to be fit to stand trial. If the accused has been found to be unfit and not likely to become fit within the next 12 months, the court must hold a special hearing under Part 3 as soon as practicable, but within six months.
[3]These ‘usual’ procedures include any modifications to them made by or under the COVID-19 (Emergency Measures) Act 2020 (Vic): The Act, s 95(2).
Section 6 establishes a two part test for determining when a person is unfit to stand trial. The first part of the test that must be satisfied to determine that a person is unfit to stand trial is that they currently suffer from at least one of the incapacities delineated in paragraphs 6(1)(a) to (f), or will at some time during the trial. The second part is that the incapacity or incapacities must be caused by the accused’s impaired or disordered mental processes.
Medical Reports
The Court has received the following four medical reports from the prosecution, namely: a neuropsychology summary of Ms Jennifer McNeill dated 9 April 2019, a neuropsychology report of Dr Jennifer McDowall dated 12 June 2019; a further report of Dr McDowall dated 2 March 2020 and a psychological report of Dr Dion Gee dated 17 March 2020.
The Court has further received a psychiatric report from the defence of Dr Lester Walton dated 12 November 2019.
Ms McNeill
Ms McNeill noted that a CT brain scan conducted on 3 March 2019 demonstrated bruising to the frontal lobes of his brain, associated subarachnoid haemorrhage, a subdural haemorrhage and a small interventricular haemorrhage. A further CT scan conducted on 21 March 2019 demonstrated partial resolution of the haemorrhages.
Ms McNeill conducted a neuropsychological assessment of the accused over three days. She found him to be in a state of shock and, to a degree, in a dissociative state. She stated that his difficulties were likely due to multiple factors including psychiatric/personality disturbance, shock and medication side effects. It was possible that he experienced mild cognitive changes prior to his admission in light of his age and medical risk factors.
Ms McNeill concluded that the accused was incapable of answering questions reliably. She recommended that he undergo a full psychiatric and dementia ‘work up’.
Dr McDowall
Dr McDowall noted that it is estimated that when found on 2 March 2019, the accused had been lying on the floor for one to two days. Dr McDowall set out the history of rehabilitative treatment and tests given to the accused throughout March and April 2019 at West Gippsland Hospital, Monash Medical Centre Neurology High Dependency Unit and the Nicholson Rehabilitation Unit at Latrobe Regional Hospital. She noted that a MRI brain scan conducted on 26 April 2019 demonstrated resolving bi-frontal contusions and interval resolution of the subdural collections, ventricular and sulcal prominence in keeping with global volume loss, extensive periventricular and subcortical confluent T2 hyperintensity in keeping with marked small vessel disease and a falcine lesion likely to represent a meningioma. And the relevant past medical history of the accused was noted to include atrial fibrillation, hypertension and ischaemic heart disease.
During the neuropsychological assessment, it appeared to Dr McDowall that the accused did not know that his wife was dead. He knew that he had been involved in an accident with his head and that it was bad, but that he was not aware of any other details of his injury. The accused demonstrated marked difficulties on tests of attention and difficulty on tasks assessing executive function. He was overwhelmed when presented with lengthy and complex information. The accused did not demonstrate good insight into the extent of his cognitive difficulties.
Dr McDowall was of the opinion that:
At approximately three-months post injury, neuropsychological assessment revealed measurable cognitive impairment, with difficulties particularly apparent in the areas of attention and executive functioning. […][The accused] had significant difficulties holding and manipulating information in his mind. He struggled to divide his attention between competing demands. He was overwhelmed by complex and lengthy information. His ability to learn new information was impoverished and his retention of information over time was unreliable. [The accused] demonstrated mental rigidity and concrete thinking. He had difficulty shifting his thinking between basic ideas. His planning and organisation skills were impaired. Visuoconstructional difficulties were apparent. [The accused] lacked insight into his cognitive difficulties.
The cause of [the accused’s] significant cognitive impairment is currently unclear. It is likely that multiple factors are contributing to his current presentation. His recent head injury is likely to be playing a major role, however, we have no information about his cognitive functioning prior to this injury. Given his cardiovascular risk factors and the ‘marked small vessel disease’ noted on MRI, it is possible that his current presentation reflects a degree of vascular-related cognitive impairment. The presence of an ‘underlying primary neoplasm’ on the splenium of the corpus callosum has been raised. If confirmed, this would also have an impact upon [the accused’s] cognitive abilities. The contribution of psychiatric or psychological factors is unclear.[4]
[4]Report of Dr McDowall, 12 June 2019, 4.
Dr McDowall noted that while it was relatively early in the recovery process of the accused’s head injury, it was possible that further cognitive improvement may occur. She recommended that further cognitive testing be delayed until the accused was at least six months post injury and that a psychiatric assessment be completed.
Dr McDowall further assessed the accused on 14 February 2020. In doing so she had access to the psychiatric report of Dr Walton completed in November 2019 (discussed further below) and the accused’s medical records held by Justice Health. The latter showed that his level of orientation had fluctuated during his incarceration. All cognitive screening measures administered since July 2019 assessed the accused as suffering a significant degree of cognitive impairment. The accused had also been diagnosed with a mild to moderate degree of dementia. His other relevant medical history included ischaemic heart disease, hypertension, atrial fibrillation, hyperlipidaemia depression and anxiety.
During the interview Dr McDowall observed the accused to be anxious. He was occasionally teary and his mood was flat. Significant short-term memory issues were evident. He appeared to be perplexed that he had been accused of murder.
Dr McDowall was of the opinion that when reassessed almost nine months after his initial assessment, the accused
again demonstrated measurable and significant cognitive impairment.
There was evidence of a deterioration in his orientation, attention, new learning and memory, and word finding abilities. His executive functioning and visuoconstructional abilities remained impaired.
As a result of his cognitive impairment, [the accused] again demonstrated a limited capacity to take in new information. He had profound difficulty holding and manipulating information in his mind. He struggled to complete even basic mental operations, such as counting backwards from 20. He was overwhelmed by complex and lengthy information. His ability to learn information was profoundly impaired, and he was unable to retain this information over time. He demonstrated mental rigidity and concrete thinking. [The accused’s] planning and organisation skills were impaired, and once again, he demonstrated visuoconstructional difficulties.[5]
[5]Report of Dr McDowall, 2 March 2020, 4-5.
Dr McDowall concluded that the significant cognitive impairment of the accused likely reflected several factors. First, residual cognitive deficits as a result of the head injury sustained on or around 2 March 2019. Second, the decline in certain cognitive performances between assessments was likely to be as a result of emerging dementia of an Alzheimer’s type. Third, vascular-related cognitive impairment. Fourth, the impact of an underlying primary neoplasm on the splenium of the corpus callosum, if the neoplasm was confirmed by medical investigation.
Dr Walton
Dr Walton noted the extensive brain damage sustained by the accused on or about 2 March 2019 and that he remained confused and disorientated for an extended period thereafter.
Dr Walton examined the accused at Port Phillip Prison on 8 November 2019. At that time the accused was not able to state the precise nature of the charge he faces but was aware that it is alleged that he killed his wife. The accused was not able to offer any explanation as to why he may have wished to attack her. He has, in Dr Walton’s opinion, a ‘dense memory loss for the incident’.[6]
[6]Report of Dr Walton, 12 November 2019, 4.
Dr Walton is of the opinion that the accused is unfit to be tried. Dr Walton stated:
This man does have some appreciation that he has been charged with killing his spouse. However, not only does he lack memory for the incident but there are ongoing problems with memory and concentration such that he would not be able to attend adequately to proceedings and provide ongoing instructions in that context, due to his ongoing problems with memorising and sustaining attention. He is simply ignorant of the function of an Australian criminal court and there would be difficulties educating him about the process, again because of his cognitive defects. [The accused] would be prone to misunderstanding and misinterpreting evidence given against him.
…
Given that it is now eight months since [the accused] acquired his brain injuries and he continues to exhibit very clear evidence of continuing cognitive deficit, the probability is that he has suffered from a permanent injury. There may be room for some further improvement but I would be surprised if there is a decisive turnaround and therefore it is most probable that the current unfitness to be tried will persist for the foreseeable future.[7]
[7]Report of Dr Walton, 12 November 2019, 4-5.
Dr Gee
Dr Gee assessed the accused on 10 March 2020. In preparing his report, Dr Gee had access to a number of materials including the report of Dr Walton and the further report of Dr McDowall.
Dr Gee noted the ‘level of neurological, neuropsychological, medical and psychiatric agreement that [the accused] labours under significantly compromised cognitive, emotional, behavioural, and adaptive functioning’.[8] He stated that the accused has a ‘mild neurocognitive disorder due to traumatic brain injury’[9] arising from injuries seemingly sustained at the time of the alleged murder. This disorder is now co-morbid with ‘dementia due to Alzheimer disease with late onset’[10]. There is also a degree of vascular-related cognitive impairment to suggest the presence of ‘dementia due to cerebrovascular disease’[11].
[8]Report of Dr Gee, 17 March 2020, [37].
[9]6D71: International Classification of Diseases-11: (‘ICD-11’), World Health Organisation, 2018.
[10]6D80.1: ICD-11.
[11]6D81: ICD-11.
Accordingly, Dr Gee accepts that the accused’s mental processes are currently disordered or impaired in accordance with the test for unfitness in the Act. Dr Gee addressed each s 6(1) factor in turn.[12]
[12]Report of Dr Gee, 17 March 2020, [42].
Dr Gee was of the opinion that the accused could not give an informed account of the purpose of the interview, nor of why he was being detained. The accused could not give an account of the alleged offending. The understanding of the accused as to the concept of a jury was ‘compromised’. He did not know how many people served on a jury nor how one was selected. His right to challenge jurors ‘appeared to be beyond his baseline level of comprehension’. When shown a photograph of a court room, the accused was unable to identify what was depicted. He had an inadequate understanding of the roles of the judge, jury, counsel, the police and himself. With regard to himself he said ‘don’t know … don’t know what’s going on’. The impairment to the accused’s impaired higher-order executive functioning and more rudimentary information and processing ‘undermine his ability to follow the course of any court proceeding.’ Indeed his immediate/short-term attention and memory capacities are now restricted to a functional five to ten minute window, at best. He did understand that he should not interrupt court proceedings and appeared to accept that the court had authority over him. The accused had a ‘limited appreciation’ of what may be used in evidence against him. Dr Gee also noted that the current neuropsychological capacities of the accused ‘would make him a highly vulnerable, unreliable, and potentially self-sabotaging witness; if indeed he actually possessed the necessary capacities to formally engage with the evidentiary process’. Finally Dr Gee noted that the accused had ‘some capacity’ to appreciate and articulate the role and purpose of a lawyer but that his ‘capacity to supply his legal counsel with informed instruction appeared fundamentally compromised, with him as presenting as incapable of making informed comment on legal strategy’.
In short, Dr Gee’s opinion is that the accused ‘presents with minimal capacity in relation to the majority of the fitness criteria’.[13]
[13]Report of Dr Gee, 17 March 2020, [47] .
This arises from his comorbid neurocognitive disorders. Dr Gee stated:
The insidious and pervasive nature of the foregoing neuro-psychopathology is clearly seen to interfere with [the accused’s] ability to function productively, thwarting his capacity to meet basic/primary human needs across a number of life domains, derailing his capacity for adaptive behaviour, and now expressly undermining his social-moral reasoning, consequential thinking, insight and judgement.[14]
[14]Report of Dr Gee, 17 March 2020, [46].
Dr Gee concludes that it is
improbable that [the accused] has the requisite capacities to sufficiently follow the course of the proceedings, even if every step was taken to support him. Further, at this time there is little to suggest that [the accused] could competently instruct his lawyer; as his presentation is such that he is highly reliant/dependent on others to meet many of his primary human needs’.[15]
[15]Report of Dr Gee, 17 March 2020, [48].
Dr Gee further notes that his opinion as to the accused’s unfitness to stand trial is not advanced only because the accused is suffering from memory loss.[16]
[16]The Act, s 6(2).
And, finally, Dr Gee is of the opinion that,
accepting the insidious, irreversible and seemingly deteriorating nature of his condition, the permanency of [the accused’s] pathology would see it extremely unlikely that he would gain sufficient capacities within the next 12 months, so as not to be assessed as meeting those criterial to be found unfit to stand trial. Indeed, given the likely worsening course of [the accused’s] degenerative disorder, in all likelihood his condition will deteriorate further across the ensuing 12-month period’.[17]
[17]Report of Dr Gee, 17 March 2020, [48].
Viva Voce Evidence
At the hearing of the investigation, Dr Walton and Professor James Ogloff gave concurrent evidence.[18] Dr Gee was unwell and unable to attend. Professor Ogloff had not examined the accused personally. He had read the report of Dr Gee and discussed it with him, as well as reviewed the file material. Professor Ogloff’s opinion was that the accused is unfit to stand trial and he adopted the factors, summarised above, relied upon by Dr Gee in reaching that opinion.
[18]The Act, s 93(4) expressly permits the application of s 232A of the Criminal Procedure Act 2009 (Vic), to a judge alone hearing.
The opinions of Professor Ogloff and Dr Walton were not challenged by either party. During oral evidence, each gave some augmentation to the written evidence.
Professor Ogloff stated that confirmation from Dr McDowall in her March 2020 report that the accused suffers from a form of dementia, most likely of the Alzheimer’s type, coupled with the brain damage sustained at around the time of the alleged offence and the vascular related cognitive impairment meant that it was beyond doubt that the accused suffered a gross degree of cognitive impairment. While this was relevant to the issue of fitness to be tried, it also impacted upon the daily functioning of the accused. Professor Ogloff said that there was ‘little chance’ of any improvement in the cognitive functioning of the accused in the next 12 months and, that even if there was, his functioning would not reach a level where the accused would be fit to stand trial.
Dr Walton stated that the accused showed a ‘striking’ level of confusion. He said that the impairment of the accused’s mental processes was profound. Indeed he said he struggled to think of another example where an accused met all of the s 6(1) criteria. When asked as to any likely improvement in the cognitive ability of the accused in the next 12 months, Dr Walton said that his opinion was more assertive than that of Professor Ogloff. The serial assessments conducted on the accused point only to an expectation of deterioration in the future.
Submissions
Counsel for the prosecution submitted that the unchallenged, consistent evidence meant that the Court must be satisfied that the accused is unfit to stand trial and will so remain in the next 12 months. Counsel submitted that the accused should be remanded in custody pending the listing of a special hearing.[19]
[19]The Act, s 95(6)(a)(ii).
Counsel for the accused adopted the prosecution submission.
Analysis
It is clear from the evidence that the accused suffers gross cognitive impairment. This arises from a combination of brain injury sustained in an unknown fashion at about the time of the alleged murder, vascular related cognitive impairment and dementia of an Alzheimer’s type. This diagnosis is common to the neuropsychologists, forensic psychologists and psychiatrist who examined the accused and is made as a result of medical imaging and the administration of long-established diagnostic tests.
It is equally clear from the evidence that this gross cognitive impairment means that the accused is and, during the trial, will be unable to meet most, if not all, of the minimum standards for fitness specified in s 6(1) of the Act.
That evidence is summarised above and is not here repeated.
Further, I accept the evidence of both Dr Walton and Professor Ogloff that there is little of any chance of improvement in the cognitive capability of the accused in the next 12 months. Indeed, the evidence suggests that further decline in that ability is almost certain.
I accept the joint submission of the parties that on the evidence before the Court I must find the accused unfit to stand trial.
Accordingly, on the balance of probabilities, I find the accused unfit to stand trial.
Further, on the balance of probabilities, I find that the accused is not likely to become fit to stand trial in the next 12 months.
The operation of subsections 95(4), (5) and (6) mean that I must not remand the accused in a prison unless satisfied that there is no practicable alternative in the circumstances. In this matter I am so satisfied. There is no evidence before the Court of any practicable alternative to the St Johns medical unit of Port Phillip Prison.
Orders
The orders of the Court will be:
1. The accused is unfit to stand trial.
2. The accused is not likely to become fit to stand trial within the next 12 months.
3. The matter is to be listed for a special hearing as soon as practicable.
4. The accused is remanded in custody.
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