R v Munze (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0226

THE QUEEN	Crown
v
WERNER MUNZE	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 June, 1 July 2020
DATE OF JUDGMENT:	12 August 2020
CASE MAY BE CITED AS:	R v Munze (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 481

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CRIMINAL LAW – Murder – Accused charged with murdering his wife – Accused unfit to stand trial – Special Hearing – Automatism – Mental impairment – Accused found to have committed the offence.

PRACTICE AND PROCEDURE – Special Hearing by Judge Alone – Temporary Measures of Division 3 of Part 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

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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 body of Ursula Munze was found lying face down on the kitchen floor of her Neerim South home on 2 March 2019. She had died from significant blunt force trauma to the head on or after 24 February 2019, being the date she was last seen alive.

Werner Munze, her husband (the ‘accused’), was found lying next to the body of his deceased wife in a dehydrated state. He had multiple superficial lacerations to his abdomen and wrists.

On 25 June 2019 the accused was arrested and charged with the murder of Ursula Munze.[1]
[1]The indictment alleges murder between dates 24 February 2018 and 2 March 2018.

The accused’s neuropsychological and psychiatric state was such that there was a real and substantial question as to his fitness to stand trial.[2] On 18 May 2020 I found the accused unfit to stand trial and determined that he was not likely to become fit to stand trial within 12 months.[3] On 30 June and 1 July 2020 I heard the special hearing of the accused.
[2]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the ‘Act’), s 9(1).
[3]R v Munze [2020] VSC 272.

For the reasons that follow, I find the accused committed the offence of murder.

Special Hearing by Judge Alone

The special hearing, which ordinarily would have proceeded before a jury in accordance with Part 3 of the Act, was heard by judge alone under temporary measures enacted in response to the COVID-19 pandemic.

Division 3 of Part 11 of the Act delineates the powers of the Court to conduct a special hearing by judge alone. A ‘special hearing by judge alone’ is defined in s 100 of the Act to mean a special hearing in respect of which an order under s 101 is made. Section 101 allows the Court, at any time before the commencement of a special hearing, to order that the special hearing be conducted by a judge alone, without a jury, if two preconditions are met. First, that the offence for which the special hearing is to be conducted is an offence under Victorian law and, second, that the Court considers that it is in the interests of justice to make the order.[4] That order may be made by the Court on its own motion or on application by the prosecution or an accused.[5] In determining whether to make an order for a judge alone special hearing, the Court must have regard to any submissions made by the prosecution,[6] but may make such an order whether or not the prosecution consents to the making of it.[7]
[4]The Act, s 101(1).
[5]The Act, s 101(2).
[6]The Act, s 101(3).
[7]The Act, s 101(4).

In the instant matter, the charge is one of murder in Victoria contrary to common law and I determined that it was in the interests of justice to order that the special hearing be conducted by judge alone. All parties consented to the procedure.

Pursuant to section 102 of the Act, procedures normally followed in a special hearing but inapposite to a judge alone hearing are rendered inapplicable. These are allowing jury challenges,[8] allowing a jury to bring in alternative verdicts[9] and mandatory jury directions at the start of a special hearing.[10] Instead, the Court is given the power to return an alternative verdict.[11] Further, the definition of ‘criminal trial’ in the Juries Act 2000 does not include a special hearing by judge alone.[12]
[8]The Act, ss 16(2)(b) and 102(1).
[9]The Act, ss 16(2)(f) and 102(2).
[10]The Act, ss 16(3) and 102(4).
[11]The Act, ss 16(1) and 102(3).
[12]The Act, s 107.

The three findings available to a jury at a special hearing pursuant to s 17(1) of the Act are available to a judge at a special hearing by judge alone.[13] They are that the accused is not guilty of the offence charged,[14] is not guilty of the offence charged because of mental impairment[15] or that the accused committed the offence charged or an offence available as an alternative.[16] A finding made by a judge under s 17(1) has, for all purposes, the same effect as if it had been made by a jury.[17]
[13]The Act, s 103(1).
[14]The Act, s 17(1)(a).
[15]The Act, s 17(1)(b).
[16]The Act, s 17(1)(c).
[17]The Act, s 103(3).

Different standards of proof apply to the last two of the available s 17(1) findings.

The question of whether the defence of mental impairment is established must be determined by the judge on the balance of probabilities.[18] To find that the accused committed the offence charged or an alternative offence, the judge must reach satisfaction beyond reasonable doubt on the evidence available.[19] In the event of either finding, the judge must either declare that the person is liable to supervision under Part 5 of the Act or order the person to be released unconditionally.[20]
[18]The Act, s 106.
[19]The Act, s 103(2).
[20]The Act, ss 23 and 105.

The judgment following a judge alone special hearing must include the principles of law applied by the judge and the facts on which the judge relied.[21] Further, s 4A of the Jury Directions Act 2015 (‘JDA’) applies.[22] Thus the Court’s reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the JDA[23] makes provision must be consistent with how a jury would be directed and must not accept, rely on or adopt a statement, suggestion or direction that the JDA prohibits a trial judge from making.[24]
[21]The Act, s 104.
[22]The Act, s 108.
[23]That is with respect to Evidential directions, Sexual offences, Family violence and General directions respectively.
[24]JDA, s 4A(2).

Structure of Judgment

To this end, this judgment will proceed as follows.

First I will summarise the evidence. Much of it is undisputed.

Second, I will summarise the submissions of each party.

Third, I will identify the principles of law applicable in the case.

Fourth, I will articulate the major facts I have found.

Fifth, I will make findings with respect to the elements of murder.

Sixth, I will make findings with respect to mental impairment.

The Evidence – Undisputed Facts

The evidence in this matter is largely agreed. The factual basis for the charge was led in evidence through the informant, Detective Senior Constable Mark Berens. DSC Berens adopted the prosecution opening as filed and read as being both truthful and accurate. He was not cross-examined. The following is a summary of the undisputed evidence.

At the time of her death Mrs Munze was 74 years of age. The accused was 83 years of age. They lived together at 27 Wagner Road, Neerim South. The layout of the house was seen in the crime scene video tendered at the hearing.[25] This is described further below.
[25]Exhibit P1.

24 February 2019

Ursula Munze was last seen alive between 7 and 8pm on Sunday 24 February 2019 by her next door neighbour Gary Robinson. He lives at 25 Wagner Road. Mr Robinson was watering his front lawn and saw Mrs Munze wheel two garbage bins to the kerb of Wagner Road in order (presumably) for them to be emptied the following day.

Later that same night Mr Robinson was in his backyard when he heard a loud bang coming from the Munze home. Afterwards he described the bang as being similar to someone hitting a wall. Upon hearing the noise, Mr Robinson went to the fence line between his house and that of the Munze house. He observed the lounge room light on. Seeing and hearing nothing else from the Munze house, he returned to what he was doing.

25 February 2019

The following day, Monday 25 February 2019, Matthias Nickels, a friend of the accused and Mrs Munze, attempted to contact Mrs Munze by telephone on both her mobile telephone number and the landline to 27 Wagner Road. Both calls went unanswered. Mr Nickels called the mobile and landline multiple times that afternoon but again the calls went unanswered. No return calls were made despite Mr Nickels leaving a message to do so.

At about midnight on that day Leanne Robinson, the wife of Gary Robinson, took her dogs outside and noticed that the light of Mrs Munze’s bedroom was on.

26 February 2019

Mrs Robinson again took her dogs outside at about 4.00am on Tuesday 26 February. She saw that the bedroom light was still on.

Gary and Leanne Robinson left their home on 26 February during daylight hours and spent the night in Melbourne.

Mr Nickels again attempted to reach Mrs Munze and the accused by telephone on 26 February. Not being able to do so, he and his wife, Roswitha, drove to the Munze house. They walked around the house. It appeared shut. They knocked on the front window but received no reply. They observed the light in the lounge room to be lit but, because of closed blinds, could not see anything further. Mr and Mrs Nickels also observed a garbage bin with a red lid on the side of the road and leaves raked into piles. After they had left the property, Mr Nickels rang Mrs Munze’s mobile telephone number several times but received no answer.

Also on 26 February 2019, John Petz, Mrs Munze’s brother, sent a text message to Mrs Munze. He lives in Sydney. He had last spoken to his sister on about 7 February 2019 about he and his wife visiting Victoria to see Mrs Munze and the accused on an unspecified date in about 3 to 4 weeks. The text message of Mr Petz went unanswered, as did his telephone calls to both the mobile number of Mrs Munze and the 27 Wagner Road landline. Despite messages left on the message banks, no return calls were made.

27 February 2019

Leanne and Gary Robinson returned to their home at about 2.00 to 3.00 pm on Wednesday 27 February. Mr Robinson was outside watering his garden when he noticed a smell. Mrs Robinson commented that she could smell something that seemed like it was dead.

On the same day, Mr Petz again tried to contact his sister by telephone to both her mobile and landline numbers. Again the calls went unanswered and no return calls were made. Similarly, Mr Nickels attempts to contact Mrs Munze that day using both telephone numbers were unsuccessful. Mr Nickels later stated that he began to be worried because usually Mrs Munze would return his calls.

28 February 2019

On Thursday 28 February Mr Petz again tried, unsuccessfully, to reach his sister by telephone on both her mobile and landline numbers. Again he received no return call.

Also on that day, Mr and Mrs Nickels again visited 27 Wagner Road. Again Mr Nickels noticed the bin with the red lid on the street. Additionally he noticed second bin with a green lid that he did not think had been there two days prior.[26] Mr and Mrs Nickels again walked around the house and observed the lounge room light to be on and the blinds to be shut. They commented to each other that it was unusual for Mrs Munze to rake leaves without then putting them in the green waste bin.
[26]It is to be recalled that Gary Robinson saw Mrs Munze with two bins on the evening of 24 February 2019. Nothing turns on the number of bins observed.

1 March 2019

Mr and Mrs Nickels returned to 27 Wagner Road the following day, Friday 1 March. The two bins were still on the street. Mr Nickels again walked the perimeter of the house and again noticed that the lounge room light was on.

The lounge room light was also noticed that day by Gary Robinson when he was working in his backyard.

2 March 2019

At about 2.30pm on Saturday 2 March 2019, Gary Robinson was again working outside his house. He was doing so with his son, Ashley, who mentioned a smell to his father. Mrs Robinson joined the conversation and they discussed that the smell had been present since Wednesday. Ashley Robinson then looked around to see if there was a dead wombat in the area. He did not find anything to account for the smell.

At about 3.00pm that day, Mr Petz and his wife, Gail, arrived at the Warragul caravan park and set up their caravan. At about 5.00pm Mr Petz drove to 27 Wagner Road. He walked around the back of the house and found it was locked. There was no response to his knock. Mr Petz wrote a note on an envelope containing some family photographs asking that the accused and Mrs Munze call him. Mr Petz went to the front of the house and saw a light on. He saw nothing unusual.

Mr Petz then telephoned his wife who suggested that he speak to the neighbours. He did. Ashley and Gary Robinson told him that Mrs Munze and the accused had not been seen but that their bins were still out. Mr Petz took the bins in.

Meanwhile Mr Nickels telephoned Jenny Wagner, a mutual friend of his and Mrs Munze. Upon his enquiry, Ms Wagner said that she had not seen either Mrs Munze or the accused since Christmas. Mr Nickels then telephoned local police. He followed the advice given and rang 000 to request a welfare check, but gave the wrong address of the house. As he ended the call, he saw Mr Petz and Mr Robinson walk up his driveway. They had discussed the situation and Mr Robinson took Mr Petz to the home of Mr Nickels, so that all three might consider what to do.

As a result of that discussion, Mr Nickels realised his mistake as to the house number and called 000 a second time to correct his earlier error. Mr Robinson and Mr Petz returned to 27 Wagner Road.

Discovery of the Deceased

Mr Nickels telephoned Mr Petz to say that if Mrs Munze and the accused had gone away, the television would be put away first. While still on the telephone, Mr Petz looked into the kitchen and saw Mrs Munze lying on the floor near the refrigerator. He asked Mr Nickels to hang up and call an ambulance. Mr Nickels did so.

Mr Petz then called Mr Robinson over and together they broke a glass door with a garden rake. Mr Petz went inside while Mr Robinson called 000. Mrs Robinson, who was also there, was prevented from entering the house by the strong smell.

Upon entering the house Mr Petz saw the accused lying next to Mrs Munze. He checked his sister and found no signs of life. He saw the eyes of the accused flicker. Shortly thereafter a paramedic and police arrived on the scene.

Attendance by Paramedics and Police

Jennifer Hume, an Ambulance Community Officer (ACO) arrived at the scene at about 8.05pm. She noted that Mrs Munze was deceased. The accused was lying nearby. He was non-responsive to her questions. She observed multiple long, straight scratch marks to his lower abdomen and an abrasion to his left iliac region. When asked, he said that he did not know what had happened.

Gillian Carter, an ambulance officer arrived at about 8.10 pm. She observed Mrs Munze deceased on the floor and Ms Hume attending to the accused. She assisted and noted the scratches to his abdomen. She also noted scratches to both wrists of the accused. Upon the arrival of another ambulance, Ms Carter relinquished care of the accused and made some observations of the house.

She noted a broken plastic chair near the right side of the kitchen sink, bloody footprints throughout the house and a large blood stain on the sheet of a bed. These and other matters are observable in the crime scene video and various photographs tendered during the hearing. Ms Carter searched for any items that might reveal the name of the accused and any medication he required.

Sian Clarke, another paramedic, arrived at the scene at about 8.14 pm. He placed a 12-lead Electro Cardio Gram monitor on the accused and inserted an intravenous canular, administering Fentanyl for pain relief.

Sergeant Adam Mottershead arrived at the scene at about 8.25pm. He spoke with the paramedics and saw Mrs Munze on the kitchen floor. He concluded that she had been deceased for some time. Sergeant Mottershead also observed the accused being treated and formed the view that he appeared confused and did not know what day it was. Sergeant Mottershead took charge of the scene, considering the death of Mrs Munze to be suspicious. He established a crime scene log and made contact with the duty detective from the Criminal Investigation Unit.

Simon Fraser, a Mobile Intensive Care Ambulance paramedic arrived at the scene at about 8.43pm. He assessed the injuries to the accused’s abdomen and wrists to be self-inflicted. He noted that the accused was dehydrated and had no recollection of what had occurred.

Senior Constable Nicole Beames also arrived at the scene at about 8.43pm.

The accused was removed from the scene at about 9.30 pm and taken to West Gippsland Hospital. Senior Constable Beames went in the ambulance with him.

Just prior to the departure of the ambulance, Detective Brett Miller arrived at the scene. He made general observations and spoke with both Sergeant Mottershead and Senior Constable Beames. Together with Sergeant Mottershead he observed the injury to the back of Mrs Munze’s head. He left the scene at about 9.51pm and travelled to West Gippsland hospital. He also requested the attendance of the homicide squad.

The ambulance conveying the accused and Senior Constable Beames arrived at the hospital at about 9.50pm. They had had a short conversation en route. At about 10.10pm, on the instruction of Sergeant Mottershead, Senior Constable Beames arrested the accused and recorded a conversation with him. That recording indicates apparent confusion on the part of the accused. He was occasionally non-responsive to questions. Sergeant Mottershead, who also spoke briefly to the accused at the hospital, similarly found him to be not making much sense.

DSC Berens arrived at the crime scene at about 1.00 am on 3 March 2019. Over the next few months, he took possession of the material relevant to the investigation.

The accused remained an inpatient of West Gippsland hospital. On 25 June 2019 DSC Berens attended the hospital and formally arrested the accused for murder.

Evidence – The Crime Scene

As noted, the crime scene video is in evidence. It depicts everything as it was upon discovery of the body of Mrs Munze but for the position in which the accused was found.

That video commences with an external view of 27 Wagner Road. It is a single story dwelling with clerestory windows above a section of the house. A sliding door and kitchen windows are visible, as are full length windows to three other rooms. A carport is evident to the right of the house. The video then moves through the sliding door fitted with vertical blinds. The glass in the door is broken, being the entry point to the house used by Mr Petz. There is a broken plastic chair on its side to the immediate left of the doorway. At the opposite end of the room is another sliding door fitted with vertical blinds, which are closed. The room is a living area. The kitchen is to the immediate right. The living area has a small kitchen table with two chairs. It is also furnished with a small bookshelf, a china cabinet and several small occasional tables and whatnots. A television is opposite the table. On the kitchen table is a neatly folded copy of The Age newspaper. The Green Guide[27] from 21 February 2019 is visible.
[27]Which is published on Thursdays.

On the floor of the living area is a towel and a sheet or similar type of bedding as found in situ. The towel is closer to the entrance to a hallway on the left. The sheet is closer to the kitchen on the right. Bloody footprints can be seen on the carpet.

The video moves through the entrance to the hallway on the left and then left into the first room, being the bedroom of the accused. Bloody footprints are visible on the carpet. There is a towel and what appears to be a blanket or bedding on the floor. The bed itself has sheets and a doona, but is unmade. One side of the doona is pulled back to expose sheets that are stained with (what was later confirmed to be) blood. The accused’s slippers, which were later analysed by Dr Chang, are visible on the floor next to the bed. A pyjama jacket stained with blood, also later analysed by Dr Chang, is visible on the bed.

The video then moves to the first room on the right of the hallway, being the laundry. Bloody footprints or marks are visible on the floor from the doorway to the sink.

The video then moves further down the hallway and into the second room on the right, being a bathroom. There are bloody marks on the hallway carpet and an obvious bloody mark on the tiled floor of the bathroom just inside the doorway, but none further.

Upon exiting the bathroom, the video moves diagonally across the hallway into the second room on the left, being a spare bedroom. It is in a pristine state with two made single beds.

The video then moves to the room at the end of the hallway, being the bedroom of Mrs Munze. There are no blood stains on the carpet. The bed is made. On top of the bed are two boxes. One appears to be made of metal. It is locked by an affixed padlock. Taped to its lid is a piece of paper which may indicate its contents. It lists items such as ‘old wills 1968’ and ‘naturalisation certificate Nov 63’. The second box is made of wood. There is also a set of keys and what looks like a small transistor radio.

The video then goes back down the hallway and into the living area adjacent to the kitchen. As the video crosses the living area into the kitchen, the body of Mrs Munze is visible. She has bare feet. The body is covered with some form of bedding.[28] There is a blanket on the floor next to Mrs Munze extensively stained with blood. That was the location where the accused was found. The head of Mrs Munze is at the left front corner of the fridge with her body angled diagonally across the front plane of the fridge. The right hand corner of the fridge is stained with blood at about halfway up the height of the door down to the bottom edge. There is also some blood staining on the front surface of the fridge.
[28]ACO Jennifer Hume, who arrived first at the scene, noted the body of Mrs Munze was partially covered with a white striped sheet. The face and body of Mrs Munze was then covered by Ms Hume (or upon her request) in order to minimise the trauma to her fellow team members. See statements of Ms Jennifer Hume, dated 3 April 2019; and Ms Gillian Carter dated 13 March 201[9].

The video then moves to a second living area off the kitchen. In the doorway are two high bar stools. The room has a high ceiling with exposed beams and clerestory windows. The room is furnished principally with a dining table, two lounge chairs, a coffee table and a sofa. In a corner under an exposed beam there is a ladder underneath a noose which hangs from the beam. The carpet has bloody foot prints from the kitchen doorway to the location of the ladder, but nowhere else.

The video then exits out of a second doorway into a small hallway. A towel is visible on the carpet. It and the carpet are stained with blood. The hallway leads to a second bathroom, the floor of which is stained with bloody footprints. The bathroom is fitted with two hand basins. A hard rubber mallet is in the left hand basin. A separate toilet next to the bathroom is then shown. It has bloody footprints on the floor.

The video then enters a further room which appears to be a store room. It is in a pristine state.

It is agreed that the bloody footprints were made by the accused as he moved throughout the house following the attack on his wife.[29]
[29]Transcript, 30 June 2020, 27-28.

There are five photographs that show the accused where he was found and as he received treatment from the paramedics.[30] Those photographs also depict the scratch marks to his abdomen and wrists. In those photographs the accused is wearing light green trousers and checked shirt. A further three photographs of the accused’s injuries taken after they had been cleaned at Warragul Hospital were also tendered.[31]
[30]Exhibit P2.
[31]Exhibit P3.

As noted, a rubber mallet was located in the sink of the second bathroom. Three photographs of it were tendered: one in situ and two with measuring tapes taken upon later analysis.[32]
[32]Exhibit P12.

Evidence – Cause of Death

The evidence establishes that Ursula Munze died from blunt force head trauma. The autopsy report of Dr Bouwer dated 1 August 2019[33] and an addendum report dated 15 August 2019[34] were tendered. Twenty four photographs taken during the autopsy were also tendered.[35]
[33]Exhibit P10.
[34]Exhibit P11.
[35]Exhibit P9.

Dr Bouwer records that the autopsy revealed ‘advanced post mortem decompositional change’. The putrefaction changes were ‘extensive’ characterised by green discolouration and bloating of soft tissues, extensive skin slippage and maggot activity.

The significant blunt head trauma had several linear to slightly curved lacerations mainly on the right side of the head with associated comminuted skull fractures. Some of the fractures had slightly bevelled edges and appeared to be caused by a heavy edged implement such as a hammer. There were at least 11 distinct (but likely more) lacerations of the scalp, including a right pinna laceration. The post mortem CT scan showed comminuted skull vault fracture mainly involving the right side of the head including the temporal, occipital and parietal bones. The right zygomatic arch was also fractured.

Evidence - DNA and Blood Spatter

Dr Chang, a Forensic Officer and Senior Case Manager within the Biological Sciences Group at the Victoria Police Forensic Services Centre (VPFSC) gave via voce evidence at the special hearing. Her expertise as a forensic scientist was a matter of agreement. Her report dated 23 June 2020, together with three appendices, was tendered.[36]
[36]Exhibit P4. Appendix G provided an overview of procedures, methods, DNA analysis and profile interpretation. Appendix E was a glossary of biological tests. Appendix K was a glossary of terminology for blood pattern analysis (‘BPA’).

Dr Chang had been asked to examine apparent blood stains on a number of items from the crime scene at 27 Wagner Road, Neerim South.

Item 2 was a pair of slippers taken from bedroom 1 (being the bedroom of the accused). It was accepted that they belonged to the accused.[37] Dr Chang sampled six spatter or satellite stains on the front shoe upper of the right shoe combined for DNA.[38] It revealed a mixed DNA profile with two contributors. The statistical weighting of that profile was 100 billion times more likely if Ursula Munze was a contributor and 100 billion times more likely if the accused was a contributor.
[37]Transcript, 30 June 2020, 38-39.
[38]Report of Dr Chang, dated 23 June 2020, Item 2.3, 5.

Item 3 was a pair of pale green pants belonging to the accused and taken from his bedroom floor. Dr Chang sampled a possible airborne stain on the upper front of the right leg.[39] It revealed a mixed DNA profile with two contributors. The DNA evidence was found to be more likely if Ursula Munze was not a contributor and 100 billion times more likely if the accused was. A transfer stain on the inner front waistband[40] also revealed a mixed DNA profile with two contributors. The DNA profile was determined for the major contributor only, as there was limited profile information as to the minor contributor. Ursula Munze was excluded as a contributor. The DNA evidence was 100 billion times more likely if the accused was the source of the blood.
[39]Report of Dr Chang, dated 23 June 2020, Item 3.2, 6.
[40]Report of Dr Chang, dated 23 June 2020, Item 3.1, 6.

Item 5 was a pair of blue and white check pattern pants found on the bed in the accused’s bedroom. It is not in issue that they were his pyjama pants. Dr Chang took three samples. The inner rear waistband[41] revealed a mixed DNA profile with 2 contributors. Ursula Munze was excluded as a contributor and the DNA evidence is 100 billion times more likely if the accused is the source of the blood. An area of saturated staining on the crotch area[42] produced a single source DNA profile. Ursula Munze was excluded as the source. The DNA evidence is 100 billion times more likely if the accused is the source. A possible spatter stain on the front right leg near the knee area produced a mixed DNA profile of two contributors. The DNA evidence is 100 billion times more likely if Ursula Munze is a contributor and 100 billion times more likely if the accused is a contributor.
[41]Report of Dr Chang, dated 23 June 2020, Item 5.1, 7.
[42]Report of Dr Chang, dated 23 June 2020, Item 5.2, 7.

Item 6 was a blue pyjama top taken from the bedroom of the accused. Again there is no issue that it belonged to the accused. Dr Chang sampled five areas for DNA testing. A combined sample of four spatter stains on the front right chest/shoulder area[43] produced a mixed DNA profile of two contributors. The DNA profile was determined for the major contributor only, as there was limited profile information as to the minor contributor. The DNA evidence is 100 billion times more likely if Ursula Munze is the source of the blood. The accused was excluded. A combined sample of two spatter stains on the lower right sleeve[44] produced a mixed DNA profile of two contributors. The DNA evidence is 100 billion times more likely if Ursula Munze is a contributor and 200,000 times more likely if the accused is a contributor. Dr Chang said that the ratio between the contributors was 96 percent Ursula Munze to 4 percent accused. An area of saturated staining on the front centre opening region[45] produced a single source DNA profile. Ursula Munze was excluded as the source of the blood. The DNA evidence is 100 billion times more likely if the accused is the source. A stain on the inner surface of the front central opening of the top[46] also produced a single source DNA profile from which Ursula Munze was excluded as the source. The DNA evidence is 100 billion times more likely if the accused is the source of the blood. A round shaped stain on the back central region of the garment[47] produced a mixed DNA profile of two contributors. The DNA profile was determined for the major contributor only, as there was limited profile information as to the minor contributor. Ursula Munze was excluded as a contributor to the major component. The DNA evidence is 100 billion times more likely if the accused is the source of the blood.
[43]Report of Dr Chang, dated 23 June 2020, Item 6.1, 9.
[44]Report of Dr Chang, dated 23 June 2020, Item 6.2, 10.
[45]Report of Dr Chang, dated 23 June 2020, Item 6.3, 10.
[46]Report of Dr Chang, dated 23 June 2020, Item 6.4, 10.
[47]Report of Dr Chang, dated 23 June 2020, Item 6.5, 10.

At the crime scene, Mrs Munze was found with a clump of human hair and debris in her right hand. This matter was referred to as item 7. Upon analysis, Dr Chang determined them to be 17 strands of human hair. No root feature was observed on any of the hairs. Consequently, no sample from the hairs was submitted for DNA analysis. The debris was reddish brown in colour and apparent blood was detected on it. No further testing was undertaken.

Item 8 was a rope cut from the rafter in the second living room. It was knotted, creating what appeared to be a noose at one end. Apparent blood was detected on the knot and possible noose. The presence of blood could not be confirmed. The surface of the knot was sampled for DNA. It produced a single source profile. Ursula Munze was excluded. The DNA evidence is 100 billion times more likely if the accused is the source.

Item 10 was the mallet taken from the second bathroom. No blood was detected on it but three areas were sampled for DNA analysis. A sample from the handle[48] produced a mixed DNA profile of three contributors. The DNA evidence is more likely if Ursula Munze is not a contributor and 100 billion times more likely if the accused is. A sample from the region between the handle and the mallet head[49] produced a partial, mixed DNA profile of two contributors. The DNA evidence is more likely if Ursula Munze is not a contributor and 810 times billion times more likely if the accused is. Dr Chang said that the lower likelihood ratio reflected the partial mixture and partial result. A sample from the head of the mallet[50] produced a partial, mixed profile of three contributors. The DNA evidence is 8 times more likely if Ursula Munze is a contributor and 1.1 million times more likely if the accused is. Again Dr Chang said that the likelihood ratio results reflected the limited profile information.
[48]Report of Dr Chang, dated 23 June 2020, Item 10.1, 12.
[49]Report of Dr Chang, dated 23 June 2020, Item 10.2, 12.
[50]Report of Dr Chang, dated 23 June 2020, Item 10.2, 12.

Based on those results, Dr Chang gave two opinions.

First, that the right chest/shoulder region of the accused’s pyjama top was proximal to a force in addition to gravity that was applied to a quantity of the liquid blood of Ursula Munze. The top had spatter stains, meaning that they appeared different to passive stains which result from gravity.

Second, that the right slipper of the accused was proximal to a force in addition to gravity being applied to a quantity of liquid blood, or a blood dripping into blood event or both, that involved both the accused’s and Ursula Munze’s liquid blood. That opinion assumed that at least one of the spatter stains on the slipper originated from each of them. Again Dr Chang stated that the mechanism of the force could not be determined from the spatter stains.

Dr Chang emphasised that the bloodstains on the pyjama top and slipper contained insufficient information for further categorization. That is, none of the bloodstains were in a pattern that could allow the action or mechanism that caused the blood distributions to be determined.

In cross-examination, Dr Chang stated that liquid blood is blood prior to it becoming clotted or congealed, or blood that is mixed with water or some other liquid. She stated that it was unlikely that any of the DNA results in the instant matter came from blood mixed with water.

Dr Chang said that all blood, regardless of size will start to clot or solidify after leaving the human body. The time it takes to solidify is dependent on a number of factors including the amount of blood, the surface type it lands on and the environmental conditions. Anticoagulant medication taken by a person may also be a factor.

Dr Chang said it was not possible to determine if the blood spatters in the instant case originated moments after death or multiple minutes later. Blood may still flow from a deceased person and can still be dispersed into the air and cause spatter. She also said it depended upon whose blood it was, because some of the samples were from mixed contributors. Dr Chang said that a small stain is likely to have been created close to the source of the blood. Dr Chang agreed that if the surface of a fridge hit a pool of blood or spot where there was liquid blood, it could cause blood to be distributed into the air and cause airborne stains.

Dr Chang agreed that some of the spatters on the slippers could have been caused by footsteps in a pool of blood, blood dripping into blood or objects dropped into a pool of blood.

Dr Chang said that it was not possible to determine from the stains to the right chest/shoulder region of the accused’s pyjama top what orientation that top had to the source of liquid blood at the time the stain was created.

In re-examination Dr Chang said that the staining to the pyjama top occurred when it was proximal to a force other than gravity that was applied to a quantity of Ursula Munze’s liquid blood.

Evidence - Medical

Dr Dion Gee, a forensic psychologist, wrote a report dated 17 March 2020 specifically in relation to the (un)fitness of the accused to stand trial. It was tendered in evidence[51] along with three other medical reports referred to: a report of Ms Jennifer McNeill, a consultant clinical neuropsychologist, dated 9 April 2020,[52] a report of Dr Jennifer McDowall, a clinical neuropsychologist, dated 12 June 2019[53] and a further report of Dr McDowall dated 2 March 2020.[54]
[51]Exhibit P5.
[52]Exhibit P6.
[53]Exhibit P7.
[54]Exhibit P8.

In his report Dr Gee noted that the medical records of the accused

detail a somewhat complex medical history; including ischaemic heart disease, hypertension, atrial fibrillation, hyperlipidaemia, depression and anxiety. Further, within the context of the index offence, [the accused] reportedly sustained a head injury in late February 2019. At that time, initial neuroimaging demonstrated ‘moderate to large bi-frontal haemorrhagic contusions, left anterior pole contusions, subarachnoid haemorrhage, and a small volume intraventricular haemorrhage … Significant cognitive impairment was also reported on neuropsychological screening in late March-to-early-April’. Dr McDowell further noted how a follow-up ‘MRI brain scan conducted in late April demonstrated some improvement, but not full resolution of these injuries’. Moreover, in her most recent report, Dr McDowell (02.03.20) made reference to [the accused] having ‘been recently diagnosed with a mild to moderate degree of dementia’.[55]

[55]Exhibit P5, [19].

In her second report, Dr McDowall noted that she was unaware of any further investigations with regard to the presence of an underlying primary neoplasm of the splenium of the corpus callosum.[56]
[56]Exhibit P8, p 5.

Dr Gee also gave viva voce evidence.

The report of Ms McNeill notes that she assessed the accused on 28 March 2019, 2 April 2019 and 4 April 2019. In discussing the medical history of the accused, she writes:

CT brain scan on 18/02/2019 reported mild increase in falcine meningioma size (21x24x17mm) and small vessel ischaemic changes. CT brain scan on 03/03/19 reported moderate haemorrhagic contusional changes with associated small volume adjacent subarachnoid haemorrhage overlying the frontal lobes. The left contusion measured 32mm and the right 12mm with surrounding oedema. Further haemorrhagic contusions involved the left anterior temporal pole and parahippocampal gyrus. There were associated acute subdural haematoma layering over the left hemitent extended from the tentorial incisura to the left petrous temporal bone with a maximal depth of 8mm. There was a further small volume thin layer of subdural haematoma layering over the posterior falx. There was small volume right interventridual haemorrhage in the occipital horn of the right lateral ventricle and mass hyperdensity in the splenium of the corpus callosum measuring 24 x 24mm, identified as possible underlying primary neoplasm.
CT brain scan on 21/03/2019 reported resolution of the haemorrhage in the bilateral inferior frontal lobes and anterior left temporal lobe, with residual, heterogeneous hypodensity remaining. The haemorrhage related to the left tentorium cerebelli had also resolved and the circumscribed hyperattenuating lesion in the splenium of the corpus callosum measured 25x27x21mm.[57]

[57]Exhibit P6, pp 1-2.

Dr Lester Walton, a consultant psychiatrist, wrote a report dated 12 November 2019. It was tendered in evidence.[58] Like the report of Dr Gee, it focussed on the issue of the (un)fitness of the accused to stand trial.
[58]Exhibit D1.

In his report Dr Walton said:

At first glance this case has potential for being extraordinarily complicated medically. There is evidence to suggest that [the accused] was suffering from significant neurological problems prior to the killing and, as far as I am aware, precisely how he sustained the subsequent extensive brain damage and the actual timing of those injuries is yet to be clarified. [The accused] seems to have a dense memory loss for the incident.[59]

[59]Exhibit D1, p 4.

Dr Walton had earlier described the brain damage as comprising bruising to the frontal lobes of the brain, associated subarachnoid haemorrhage, a subdural haemorrhage and interventricular haemorrhage.[60]
[60]Exhibit D1, p 1.

Dr Walton also gave viva voce evidence.

Both experts gave evidence separately before giving concurrent evidence.[61]
[61]The Act, s 16(2) expressly permits the application of s 232A of the Criminal Procedure Act 2009 to a judge alone hearing.

Dr Gee emphasised that his assessment of the accused did not address potential pre-existing conditions or other matters that may relate to this hearing. Rather, his task was to assess the accused’s (then) current condition as it related to his fitness to stand trial. He said that he had read the transcript of the fitness hearing.[62] Having done so he stated that there was no evidence that the accused had either a tumour or vascular issues.
[62]Dr Gee was unwell at the time of the fitness hearing. Evidence was given in accordance with his report by Professor Ogloff. See R v Munze [2020] VSC 272, [53].

Dr Gee said that Dr McDowall had conducted two assessments some time apart. The first was the day after the body of Mrs Munze was discovered. In that assessment there were clear signs of an acquired brain injury. How, when and why he sustained that injury were not canvassed. By the time of the second assessment (in February 2020) the acquired brain injury had resolved somewhat, but underlying processes of Alzheimer’s disease had come to the fore. Dr Gee said that this showed that there had been a shift in what was most salient in the accused’s presentation, but from his point of view, being a report as to fitness to stand trial, the cause was less important than the effect.

Dr Gee said that it was not possible to determine when the acquired brain injury occurred. While it occurred around the time of the offence, it could have been before, during or afterwards. At the same time, he would not suggest that it occurred a long time before the offence because of the significant cognitive difficulties it produced, namely a significantly impaired memory and a dissociative state. These were observable on 3 March 2019. They would have been observable whenever they manifested because the accused would not have been able to function. Dr Gee also noted that the accused was dehydrated when he was found. That, together with the sedation administered to him also contributed to the neuropsychological evaluation in March 2019.

Dr Walton said that he had not personally reassessed the accused since 2019 but it seemed that the brain injury had resolved to some extent but an underlying Alzheimer’s disease has emerged. He said that the accused had been medically assessed on 18 February 2019 (seven days prior to the last sighting of Ursula Munze) and was found to be mildly confused. There had been a significant deterioration between that time and 3 March 2019. Dr Walton said that it is not at all clear when the brain injury occurred that caused that deterioration.

Dr Walton said that the accused had some cardiovascular problems. Such problems can cause difficulties with neurological functioning but the accused was not identified as suffering a catastrophic cardiovascular event prior to the offence.

Dr Walton said that the accused had a mass hypodensity in the corpus callosum. The provisional diagnosis was a meningioma. If such a tumour was present it could cause problems in neurological functioning. He said that at the time of the brain scan showing the presumed meningioma (on 18 February 2020), there had been an increase in its size but the accused was only mildly confused. Generally speaking a meningioma would not be expected to grow very rapidly to cause a massive deterioration. But later the accused was found to have a brain bleed. Dr Walton considered the brain damage which occurred from that bleeding to be the most relevant in the marked deterioration of the accused, but his underlying conditions could have potentially complicated the situation.

Dr Gee and Dr Walton were then together asked a series of questions.

Both Dr Walton and Dr Gee said that the level of mild confusion exhibited by the accused on 18 February 2019 would not have deprived him of the capacity to form an intention. They both agreed that it was impossible to know when the acquired brain injury was sustained.

When asked if the evidence of attempts by the accused to self-harm provided any basis for them to express an opinion as to the capacity of the accused to form an intention at around the time the offence is alleged to have been committed, Dr Walton said that it likely indicated he was entertaining suicidal thoughts. Those thoughts in turn may be indicative of a major mood disturbance. Slashing oneself and fashioning a noose is an indication of intentional capacity, but it raises a question of whether the accused knew what he was doing was right or wrong. Dr Gee said that the accused demonstrated the capacity to form an intention but there is an unanswerable question of whether it was a rational intention. Both added that while preparation for suicide in the aftermath might be considered to be indicative of consciousness of guilt, it was unknown whether he engaged in that behaviour before he attacked his wife.[63]
[63]It is to be noted that the prosecution does not rely upon this evidence as incriminating conduct and the defence does not concede that the accused attacked his wife.

When asked about the number of blows struck to the back of Mrs Munze’s head, Dr Walton said that the fact that the accused engaged in a repeated act tends to suggest that he had the capacity for intentional behaviour but it does not touch on the question of moral capacity. Dr Gee said he had not been asked to assess the issue of the accused’s capacity for intentional behaviour but agreed with Dr Walton as to capacity to understand consequences.

When asked as to his use of the term ‘rational’ and whether it meant an awareness of the nature and quality of an act, Dr Gee said the question was whether someone could form an intention in the forefront of their mind and then act on that intention in a rational way. He used the term because he was not asked to assess mental impairment. Dr Gee said again that it was unknown whether the accused suffered the brain injury pre or post the attack on his wife. Dr Walton then said the following:

Well, again, it’s very much a matter of timing, which inevitably I think we’re going to remain in the dark. … if he had the brain injury, the bleed to the brain shortly prior to this incident, and the fact that it is such an – as I understand it, such out of character behaviour for this man, as far as I know, there’s no suggestion the marriage was in trouble. He had for many years looked after his psychiatrically disabled wife, and this arises as markedly strange behaviour which of course, tends to point to the fact that it might be medical phenomenon and the most probable candidate from my perspective would be a non-insane automatism on the basis of brain injury. But I can’t say that with any degree of certainty, that the brain damage could have occurred after the event.[64]

[64]Transcript, 30 June 2020, 78-79.

Both Dr Gee and Dr Walton said that if a person could not form a rational intention then it necessarily followed that they could not form a clear understanding of moral culpability. Being unable to form a rational intention was a more severe level of disturbance than failing to appreciate wrongfulness or properly consider consequences.

When asked if the accused was capable of forming an intention in the state in which he was after he had been hospitalised, Dr Gee said he could not and described the accused as being in a dissociative state. That is, he was not present in the real world, but somewhere else. Dr Gee said that it was impossible to know if the intention the accused formed to hurt himself was rational or irrational.

Both Dr Gee and Dr Walton said that they would not have expected the capacity of the accused to fluctuate between rational and irrational. Dr Walton said the proposition was black and white. The accused had capacity and then he didn’t. The problem is that it was unknown when that change occurred. Both agreed that the head trauma and the bleeding on the brain could be the same or different things.

Addresses
Prosecution

In his address Mr Hevey stated that there could be no doubt that only the accused and his wife were present in the 27 Wagner Road house during the relevant week, 24 February to 2 March 2019. Mrs Munze had last been seen taking the rubbish bins to the curb on 24 February. A noise was heard that night by Mr Robinson. It was of sufficient volume to attract his attention and cause him to go to the fence line.

The Crown case is that the murder occurred on the night of 24 February. Three matters were emphasised. First, Mr and Mrs Robinson and their son Ashley went about their normal business over the next few days and all noted a putrid smell coming from the Munze house. Second, there is no evidence of any other person entering or departing 27 Wagner Road. If anyone had entered, the body of Mrs Munze would have been discovered earlier. Third, there were many unsuccessful attempts by the friends and relatives of the accused and his wife to contact them during that week and that no return calls were made. Mr Hevey submitted that there was no doubt that it was the accused who caused the injury to his wife that led to her death.

The nature of the violence so inflicted was relevant to the voluntariness of the act. There were multiple blows to the back of the skull inflicted from behind, as demonstrated from the autopsy report, photographs and crime scene video showing blood down the right hand side of the refrigerator and the body being positioned to the left hand side. It was submitted that this enabled a finding beyond reasonable doubt that the acts causing death were intentional and voluntary. They could not be the product of anything less than an intention to kill or do really serious injury.

In addressing the issue of mental impairment, Mr Hevey submitted that the timing of CT brain scans is of assistance. The accused had a scan on 18 February 2018, a week before the date on which the Crown say Mrs Munze died, and again on 3 March 2019, the day after the scene was discovered. On 18 February there was a mild increase in the falcine meningioma size to 21 x 24 x 17 mm. On 3 March the size was 24 x 24 mm. A further scan taken on 21 March refers to the size as being 25 x 27 x 21 mm. That being so, there is nothing in the scan from 18 February 2019 that could support a conclusion that at that time the accused’s ability to think clearly was in jeopardy.

Mr Hevey then referred to the evidence of Dr Gee and Dr Walton. Their evidence was that sometime after 18 February and before 3 March 2019 the accused had suffered an acquired brain injury but no one was able to say whether it was before, during or after the moment when he struck his wife. Dr Walton said that the tumour was not likely to have caused the accused’s deterioration. Rather, the brain damage from the bleeding was more relevant.

So, the mild confusion of the accused on 18 February and his condition of having an apparent meningioma and other pre-existing conditions, did not deprive him of the ability to form an intention to carry out an attack on his wife which, on the crown case, occurred six days later. Within a week of that, on 3 March, the scans show that he has acquired a brain injury that resulted in bleeding and contusions. The Crown case is that it was incumbent upon the defence to establish on the balance of probabilities that the acquired brain injury evidenced from the scan of 3 March 2019 was present prior to or at the time the attack on Mrs Munze took place. They cannot, it is a matter of pure speculation. Mr Hevey referred to the presumption of sanity.

Mr Hevey also referred to a number of other matters to demonstrate clarity of thought at the time of the attack including the number of blows inflicted during the attack, the accused’s attempt to harm himself and fashion a noose, which could only have been after he had killed his wife. In this respect Mr Hevey pointed to the bloody footprints throughout the house, the accused’s slippers found next to his bed which had both his and his wife’s blood on them, and the blood on his sheets.

With respect to automatism, Mr Hevey said that the issue was raised by a throwaway line by Dr Walton. It was not mentioned in his report, the neuropsychological reports or the report of Dr Gee. Dr Gee did not acquiesce in the opinion. Mr Kounnas did not explore the issue further with Dr Walton. Mr Hevey submitted that there was no evidence upon which the court could find the defence of automatism established.

In summary Mr Hevey said that the Crown had established beyond reasonable doubt all elements of the offence. It is assumed at law that the accused was not suffering mental impairment at the time. Mr Hevey noted that, having raised the issue, the defence needed to establish on the balance of probabilities that the accused had the brain injury at the relevant time. The prosecution argued that they cannot, as it is a matter of speculation. Further, Mr Hevey submitted that the self-harming actions of the accused post killing contradict the idea that the brain injury was present at the time of the killing.

Defence

Mr Kounnas addressed the issue of automatism first. He said that the accused bore no onus of proving that his act was willed, but did bear an evidential onus of rebutting the inference that his act was willed.[65] He said that the evidence in this case did raise the possibility that the accused could have been in a state of automatism notwithstanding that the evidence of it came as a surprise. He identified that evidence as the remark of Dr Walton, quoted above in paragraph 114. Mr Kounnas pointed to the bleed in the brain as the factor that tipped the accused over the edge of not being able to act voluntarily. Despite the fact that Dr Walton could not say with any degree of certainty that the accused was suffering non-insane automatism on the basis of brain injury, all the defence had to do was to point to the probability of it at the relevant time. It was then for the Crown to rebut the issue.
[65]Citing The Queen v Falconer (1990) 171 CLR 30, 43 (‘Falconer’) and The Queen v Youssef (1990) 58 A Crim R 1, [3] (see Transcript, 1 July 2020, 121).

Mr Kounnas submitted that the absence of dissent following Dr Walton’s reference to a possible state of automatism meant that Dr Gee effectively adopted the position.

With respect to mental impairment, Mr Kounnas submitted that the fact that the accused changed from being ‘relatively okay’ to ‘significantly not okay’ between 18 February and 3 March 2019, coupled with the behaviour of the accused being out of the blue, discharged the onus of establishing mental impairment at the relevant time on the balance of probabilities.

Mr Kounnas said that he accepted that the death occurred on 24 February or so close to it that it made no substantial difference. He said that the evidence of the neighbours, friends and relatives of the accused and his wife were not disputed, but that the Crown case was just a hypothesis. It was a probable explanation but it was not the only reasonable explanation available, suggesting that a third party could have left the scene unobserved. Mr Kounnas submitted that no murder weapon has been identified, and while the rubber mallet is the best guess, the DNA evidence is of little value given the crime scene was the shared home of the accused and deceased.

It was further submitted that the evidence of blood spatter does not amount to much because the mechanism additional to gravity that caused the spatter on the shirt of the accused cannot be determined. Mr Kounnas said that the evidence of Dr Chang was that the blood on the fridge could have been caused by blood dripping on blood. He hypothesised that the accused could have laid down next to his deceased wife and blood could have spattered onto him from blood hitting other liquid blood. He could have got the blood on his shoes by walking through the area.

Mr Kounnas submitted that Dr Chang’s evidence does not show that the accused was the one who applied the blunt force to the head of Mrs Munze. Rather, it can only be used to conclude that the accused was close to Mrs Munze while her blood was still liquid.

Mr Kounnas returned to the issue of voluntariness and said that both a mental illness and an actual physical injury caused the lack of voluntariness. He said that there was some authority that brain injury can be both a mental illness and a physical illness,[66] leaving open the issue of both sane and insane automatism.
[66]Citing R v Hughes (1989) 42 A Crim R 270 and R v Kemp [1957] 1 QB 399.

With respect to the evidence of attempts at self-harm, Mr Kounnas submitted that a person does not need great clarity of mind to have a suicidal intent.

In short, Mr Kounnas submitted that the Crown could not prove beyond reasonable doubt that the accused did the act that resulted in the death of Mrs Munze. But, if I were satisfied of that, then his acts were neither voluntary nor accompanied by murderous intent, either because he suffered mental impairment at the relevant time or because he was in a state of automatism.

Applicable Legal Principles
Presumption of innocence, burden and standard of proof

The accused has the presumption of innocence. He is to be regarded as innocent of the charge of murder unless and until the prosecution has proved his guilt of that charge beyond reasonable doubt. The burden of proving that charge lies wholly on the prosecution.

Elements of Murder

The elements which the prosecution must prove beyond reasonable doubt to establish murder are:

1. The accused committed the act or acts which caused the victim’s death.

2. The accused committed that act or acts voluntarily.

3. The accused committed that act or acts while intending to kill someone or cause them really serious injury.

4. The accused did not have lawful justification or excuse for those acts.

In this case the accused disputes that the prosecution can prove the first three of these elements beyond reasonable doubt. Specifically, the accused argues first that the Crown cannot exclude the reasonable possibility that a third person caused the blunt force trauma to Mrs Munze. Second, that if he did commit the relevant acts they were not deliberate and willed because the accused was in a state of sane automatism.[67] Third, that if he did the relevant acts then he did not know the nature and quality of what he was doing, or did not know what he was doing was wrong, because of mental impairment (or a state of insane automatism).
[67]Evidence of insane automatism must not be considered in relation to voluntariness: Hawkins v R (1994) 179 CLR 500.

The accused accepts that if I find the first three elements proven beyond reasonable doubt, he had no lawful justification or excuse for the killing of his wife.

Manslaughter is an alternative offence to murder.[68] Given the decision I have reached in this matter, I need not consider its elements.
[68]Crimes Act 1958 (Vic), section 421(1)(a).

Circumstantial Evidence

As this is a judge alone special hearing, I note that I must find the facts and draw the inferences from them and then apply the law to the facts that I find. I do so as a purely intellectual exercise based on the evidence in the hearing, reinforced by my common sense and experience.

As the case relies upon circumstantial evidence, I note that to find the accused committed the offence, that conclusion must not only be a reasonable inference but the only reasonable inference drawn from the circumstances established by the evidence.

In determining whether an inference is reasonable, I must consider the evidence as a whole. Such an inference can be drawn from a combination of facts, none of which viewed alone would support that inference. Accordingly, I will not reject one circumstance because, considered alone, no reasonable inference of guilt can be drawn from it. Rather, I will consider the weight that is to be given to the united force of all the circumstances put together. At the same time I will not jump to conclusions.

Further, if there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, I must find the accused not guilty. Such reasonable explanation need not be reasonably open on the evidence. It is sufficient if there is a reasonable possibility that that reasonable hypothesis occurred. However, a reasonable hypothesis consistent with innocence must have some degree of credulity and not be fanciful or tenuous. It must rely upon something more than mere conjecture.

Motive

The Crown does not have to prove the accused had a motive to kill his wife in order to prove its case. But an absence of motive is a consideration to be taken into account in his favour when weighing all of the evidence.

Expert evidence

Dr Chang, Dr Gee and Dr Walton are all accepted experts in their field and each gave opinion evidence in this hearing. I will consider whether I find the opinions expressed to be credible and what weight I accord them.

In so far as the opinions of Dr Gee and Dr Walton are unanimous, I will not reject those opinions in the absence of some factor that casts doubt on them.

I will consider the DNA evidence of Dr Chang to be a piece of circumstantial evidence, to be considered in light of all the other evidence in the case and recognising the limitations of DNA evidence.

Automatism

Automatism is a legal – not medical – concept regarding acts committed absent volition. It is not an independent exculpatory defence. Rather, evidence of a state of automatism has the potential to undermine proof of elements of criminal responsibility, namely voluntariness and intention.[69]
[69]Cvetkovic v R [2010] 329, [3] (Campbell JA) citing Hall v R (1988) 36 A Crim R 368, 371-2 (Roden J).

In the instant case, the issue of automatism is said to relate to voluntariness alone.[70]
[70]Transcript, 1 July 2020, 134-135.

Volition that is compromised but present in an impaired or reduced capacity is insufficient to found a state of automatism.[71] There must be an absence of all the deliberative functions of the mind rendering the accused an automaton.[72] Automatism and dissociation are not equivalent terms,[73] but automatism can arise from a dissociative state.[74] Amnesia is one of the main symptoms of having acted in a state of automatism.[75]
[71]Re AG’s Reference (No 2 of 1992) [1994] QB 91, 105C; Edwards v Macrae (1991) 14 MVR 193, 200.
[72]R v Radford (1985) 42 SASR 266, 272 (‘Radford’); R v Burr [1969] NZLR 736, 745 (Turner J).
[73]Nolan v R (Supreme Court of Western Australia, Court of Criminal Appeal, Malcolm CJ, Pidgeon and Murray JJ, 22 May 1997), 32-33, 50; R v Joyce [2005] NSWDC 13, [55]-[67].
[74]Radford, 277.
[75]R v King (2005) 155 ACTR 55.

Automatism can be either insane or sane. The former occurs when a ‘disease of the mind’ causes the total absence of the control of the will of the accused. The latter occurs when something other than a ‘disease of the mind’ produces that state. Consequently it is very rare. If successfully raised, a differential verdict results depending upon whether the automatism is insane or sane, that is not guilty because of mental impairment[76] or not guilty, respectively.
[76]This is complicated by the defence of mental impairment, considered further below.

The phrase ‘disease of the mind’ is drawn from the definition of insanity in the Rules in McNaghten’s Case.[77] It is synonymous with ‘mental illness’.[78] It is not to be narrowly construed. To fall within its terms, an accused must have been suffering from some kind of mental disease, disorder or disturbance.[79] There need not have been a physical alteration in the brain. A mental condition will be a ‘disease of the mind’ if it is the reaction of an unsound mind to external stimuli or internal delusions.[80] A mental state that is likely to recur is more likely to be classified as a ‘disease of the mind’. Questions of permanence, curability or whether the state is organic or functional are not determinative.
[77](1843) 8 ER 718, 722.
[78]Falconer, [20]; Radford, 274-275.
[79]R v Porter (1933) 55 CLR 182.
[80]Falconer; Radford; Youssef; Woodbridge v R [2010] NSWCCA 185.

Relevant to this matter, brain injuries or tumours can be diseases of the mind.[81] Automatism resulting from a dissociative state may be either sane or insane depending upon whether the accused’s acts were caused by the shock of a physical or emotional blow or the susceptibility of the mind of the accused to being affected by shock.[82]
[81]R v Hughes (1989) 42 A Crim R 270; Nolan.
[82]Falconer; Radford; Woodbridge; R v Milloy [1993] 1 Qd R 298.

It remains for the prosecution to prove beyond reasonable doubt that the accused acted voluntarily. There is an evidentiary presumption that an act done by an apparently conscious person was done voluntarily.[83] It is based on ‘ordinary and universal experience’. It can be displaced , but only by ‘credible evidence assigning a cause sufficient to explain what, if it happened at all, must be viewed as an extraordinary event’.[84] Thus, where sane automatism is raised, the accused must point to such credible evidence. That is not easily satisfied:

In practical terms a claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence that identifies a mental state in which acts occur independently of the will, assigns a causative explanation for that state and postulates that the accused did or may have experienced that state.[85]

[83]Falconer, [7] (Gaudron J) citing Bratty v Attorney-General for Northern Ireland (1963) AC 386, 407, 413; Ryan v The Queen (1967) 121 CLR 205, 213; and Radford, 272.

[84]Falconer, [7] (Gaudron J).

[85]Falconer, [8] (Gaudron J).

Where insane automatism is raised, the onus of proving the defence of mental impairment on the balance of probabilities rests on the party who raises the issue.[86]
[86]The Act, s 21.

Where both sane and insane automatism are raised, difficulties arise. In Falconer, the majority held that if the tribunal of fact found it likely that the accused acted involuntarily due to a disease of the mind but could not exclude beyond reasonable doubt the possibility that the automatism was caused by something other than a disease of the mind then the accused should be acquitted.

But the Act was enacted after Falconer and a question arises as to whether s 20(2) requires a person to be found not guilty by reason of mental impairment whenever the s 20(1) requirements have been proven on the balance of probabilities. That is even if he or she acted involuntarily due to another course. As the issue of voluntariness is not expressly addressed by the Act, it is arguable that the Falconer principles apply even if the s 20(1) factors are proven. That is, the accused must be acquitted if it is reasonably possible that he acted involuntarily due to sane automatism.

It is not necessary to resolve that issue in this case.

There are two preliminary issues that I must determine with respect to automatism. First, whether there is a proper evidential foundation for the defence. Second, if so, whether the evidence demonstrates the issue to be one of sane or insane automatism or both.

Mental Impairment

The defence of mental impairment is established if at the time of engaging in conduct constituting the offence, the person charged was suffering from a mental impairment that had the effect that he or she did not know the nature and quality of the conduct or did not know that the conduct was wrong.[87] A person will not know that the conduct was wrong if ‘he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong’.[88]
[87]The Act, s 20(1).
[88]The Act, s 20(2).

A person is presumed not to have been suffering from a mental impairment until the contrary is proved[89] (the presumption of sanity). Whether a person was suffering from a mental impairment is a question of fact.[90] The party raising the defence of mental impairment bears the onus of rebutting the presumption of sanity.[91]
[89]The Act, s 21(1).
[90]The Act, s 21(2)(a).
[91]The Act, s 21(3).

The term ‘mental impairment’ is not defined in the Act. It is a legal not medical term. It has the same meaning as ‘disease of the mind’.[92]
[92]DPP v Taleski [2007] VSC 183.

I should not consider evidence of mental illness when determining whether elements of the offence have been proven. When deciding whether the prosecution has discharged its burden to prove the elements beyond reasonable doubt, I must assume that the accused was of sound mind.[93]
[93]R v Stiles (1990) 50 A Crim R 13.

The Facts

Before turning to a consideration of the elements of murder, I articulate the major facts that I have found. These findings are not made beyond reasonable doubt.[94]
[94]JDA, s 61.

I find that the attack on Mrs Munze occurred on the evening of 24 February at around the time Mr Robinson heard the loud noise coming from 27 Wagner Road. I infer that Mrs Munze died at about that time.

In so finding I draw on the combination of the following. Mrs Munze was last seen alive on the afternoon of 24 February. She put the bins out for collection. The bins were still out until 2 March when her brother took them in. There was a Green Guide television program from 21 February for programs for the week commencing 23 February, but not one from Thursday 28 February. No one could contact either her or the accused by telephone from 25 February onwards. She did not respond to any telephone messages which was unusual, but particularly so with respect to her brother with whom she had previously discussed his visit to her at about that time. A decomposing smell was noticed on the Wednesday. The state of her body, when it was found on 2 March, was in an advanced state of decomposition.

I find that the accused’s self-inflicted injuries and fashioning and hanging of a noose occurred after the attack on Mrs Munze.

In so finding I draw on a combination of the following. Mrs Munze was, on the evening of her death, attending to a routine activity – the taking out of rubbish bins for collections. Self-harm or indicators of self-harm by a spouse are anything but routine. If the accused had caused the lacerations to his abdomen and wrists when Mrs Munze was uninjured, she would have noticed them. The amount of blood on the accused’s bedding and pyjamas indicate that the injuries were readily apparent. Similarly, Mrs Munze would have noticed him obtaining rope, fashioning a noose and placing a large ladder in the living room. Common human experience indicates that she would have intervened or sought external assistance in some fashion. She did not. Further, the bloody footprints in the living room with the ladder lead from the kitchen door to the ladder, but nowhere else. The available inference is that they were made when the ladder and noose were positioned.

I find that the accused was wearing his pyjama jacket at the time Mrs Munze was attacked. The spatter stains on the front right chest/shoulder area were caused when a force other than gravity was applied to a quantity of Mrs Munze’s liquid blood. Those spatter stains do not contain the blood of the accused. But, the saturated staining on the front centre opening region and the stain on the inner surface of the front central opening was the blood of the accused and not that of Mrs Munze. That staining occurs at the location of the self-inflicted abdominal lacerations. This reinforces my conclusion that those injuries occurred after the attack to Mrs Munze. That is, Mrs Munze had not seen an obviously injured husband prior to the attack.

I find that the accused placed the sheets / bedding and towels at various locations in the house, including partially over Mrs Munze’s body, after the attack on her. Not only are they stained with blood and in areas of the house where there are bloody footprints on the carpets and floors, but the dwelling at 27 Wagner Road is otherwise extremely neat and tidy. It is inconceivable that these items were scattered on the floor prior to Mrs Munze’s death.

I find that when I come to consider the issue of mental impairment, the relevant impairment is that caused by the bleed to the brain rather than the pre-existing (supposed) meningioma. It is impossible to know with precision when the accused sustained the injury that caused that bleeding. I conclude that it was very unlikely in the days following 18 February 2019 when the accused was noted to be mildly confused. The brain injury produced such extreme cognitive defects that the accused was rendered unable to function. As Dr Gee stated, the degree of incapacity of the accused when he was found was such that it was going to be obvious whenever it manifested, even though his presentation was complicated by his level of dehydration. I consider that Mrs Munze would have been cognizant of such a profound change in her husband if it had occurred much before she was attacked and undoubtedly she would have sought help. She did not. But it remains possible that the injury occurred moments before she was attacked.

I also find that the accused was able to function to a degree after the attack on his wife. He made a noose and hung it from a beam with a ladder. He inflicted lacerations to his abdomen and wrists. He went to bed. He changed his clothes. He placed towels and bedding on the floor of the house, including a sheet over his wife and a blanket next to his wife’s body for him to lay on.

But, it can only be a matter of speculation at what moment the brain injury to the accused occurred.

The Findings – Elements of Murder

I now turn to a consideration of the elements of the offence.

Did the accused do the acts which caused the death of Mrs Munze?

I am satisfied beyond reasonable doubt that the accused caused the blunt force trauma to Mrs Munze.

In so finding I draw on a combination of the following facts and inferences. No one else was seen in or leaving 27 Wagner Road on the evening of 24 February. In particular, Mr Robinson, having been sufficiently alarmed by the noise he heard that night to go to the fence line shared by his property and the Munze house, remained outside in his backyard thereafter. He saw no further activity. I do not consider it to be a reasonable hypothesis that a third party murdered Mrs Munze and left unobserved.

Given my finding as to the timing of the self-inflicted injuries of the accused, it follows that he was not physically incapacitated or suffering physical pain at the time of the attack. If someone else had attacked his wife, it might reasonably be expected that he would have tried to intervene or call for help. He did not at the time or on any day after 24 February. He did partially cover her body with a sheet.

The spatter stains to the right chest/shoulder area of the accused’s pyjama jacket indicate that he was close to Mrs Munze at the time the attack was perpetrated. It is not a reasonable hypothesis that a third party savagely attacked the accused’s wife but not him, then left undetected while the accused went on to injure himself but not call for help. I also consider the blood spatter stains to the accused’s slippers are capable, when considered together with the other evidence, of founding an inference that he was wearing them at the time of the attack. Although it is possible that the spatter on them was caused by stepping in a pool of blood, blood dripping into blood or objects dropped into a pool of blood, considering the evidence as a whole, given that the accused was wearing his pyjamas at the time of the attack, it is most likely that he was wearing his slippers as well. It is not reasonable to suppose that he was wearing any other type of shoe.

Were the accused’s actions voluntary?

I am satisfied beyond reasonable doubt that the accused was acting voluntarily when he inflicted the blows to the back of his wife’s head. There were repeated blows to the back of the head with a heavy edged implement.

As the issue of automatism has been raised, I turn to consider the first preliminary issue, namely whether there is a proper evidential foundation for the defence. There is not. I do not consider there to be any credible evidence that a state of sane automatism existed at the relevant time.

It is to be recalled that the issue of automatism was not canvassed in the medical reports of Dr Walton or Dr Gee. It was not raised in the defence response filed in this court which must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.[95] It was not raised by Mr Kounnas in his reply to the prosecutor’s opening in the special hearing. The only reference to the issue was the extract of the evidence from Dr Walton extracted above in paragraph 114.
[95]Criminal Procedure Act 2009, s 183(2).

I consider that remark to have been a throwaway line. There is no evidence before me to anchor the reasoning that Dr Walton gave for the remark, namely that the behaviour was out of character because there was no suggestion that the marriage was in trouble and that the accused had for many years looked after his psychiatrically ill wife. There is simply no evidence as to the state of the marriage. While the absence of an obvious motive I treat favourably to the accused, to equate that absence with sane automatism is specious.

The remark was immediately characterised as speculation by Dr Walton. Non-insane automatism was the ‘most probable candidate’ but he could not say that ‘with any degree of certainty’. Dr Walton also referred to the hypothesised condition as a ‘medical phenomenon’. It is by no means clear what Dr Walton meant equates with the legal definition of sane automatism. And, further to this, Dr Walton discussed this idea using the subjunctive tense: ‘if he had the brain injury …’. There is simply no evidence that the accused had the brain injury (that is the bleed to the brain) at the time he struck the blows.

Mr Kounnas did not ask Dr Walton a single further question about the issue.

Further, I do not accept that Dr Gee adopted this answer of Dr Walton. Immediately after Dr Walton gave this answer, the hearing proceeded as follows:

MR KOUNNAS: And back to you Dr Gee, a person that’s in any type of condition that you describe, not being able to form that rational intent, would a person in that situation be able to have foresight of the consequences of their actions?
DR GEE: I only partially heard the question, but I think you’re talking about whether it would form foresight about the consequences?
MR KOUNNAS: Yes.
DR GEE: Yes. Ah, again it’s difficult because if he was in a state where he was irrational, then part of the flow on from that is he would not be in a state where he would consider the consequences. However, again, we just simply don’t know when that stage was brought about and at what time that stage was brought about, and I think that is where both Dr Walton and I completely agree. We just simply cannot put a time on this event.[96]

[96]Transcript, 30 June 2020, 79.

Evidence that the accused was in fact acting in a state of automatism is not required. Rather there must be some evidence that the accused could have been in such a state.[97] Given that sane automatism is, by its very nature, extraordinary, the evidence must be very persuasive before involuntariness will be a reasonable possibility.[98] For the reasons identified above, it falls far short of persuasiveness in this case.
[97]Youssef, [3].
[98]Falconer, [8] (Gaudron J).

Consequently I am of the view that the claim of involuntariness due to sane automatism is frivolous. There is no credible evidence to disturb the evidentiary presumption that the blows to the head struck by the accused were done deliberately and consciously.

Did the accused have murderous intent?

I am satisfied beyond reasonable doubt that at the time the accused struck the fatal blows he intended to kill or do really serious injury.

In so finding, I rely upon the combination of the following factors. First, the presumption of sanity. Second, the target of the attack was the back of the head. Third, the nature of the injuries. The evidence of Dr Bouwer and the autopsy photographs reveal that the attack on Mrs Munze was sustained. The scalp had at least 11 lacerations and at least some of the blows that caused the lacerations were forceful enough to cause extensive fractures to the skull. Fourth, the attack involved the use of a heavy edged instrument.

In short, it is beyond the realm of possibility that an attack to the head with a weapon involving multiple blows of sufficient force to cause lacerations and fractures is consistent with anything other than an intention to kill or do really serious injury.

Was there a lawful justification or excuse?

As noted above, this element is not in issue. There was no lawful justification or excuse for the accused to kill the victim.

Findings – Mental Impairment

Being satisfied that he prosecution has proven the four elements of murder beyond reasonable doubt, I turn to consider whether the accused has established, on the balance of probabilities, that he did not know the nature and quality of the conduct or did not know that the conduct was wrong.

I conclude he has not.

The brain injury sustained by the accused occurred at an unknown time at around the attack on Mrs Munze. As noted above, I accept the evidence that the injury as opposed to any underlying condition is the relevant factor. For the reasons I have already indicated, if it occurred prior to the attack I consider it unlikely to have been very far in advance of it. But it can be no more than mere speculation as to when the relevant brain injury occurred. It could have happened before, during or after the attack. It is impossible to ascribe any degree of likelihood to any one of these potential scenarios. That being so, the accused has not discharged the burden of proving that it was more probable than not that he was suffering from a mental impairment at the time he struck the fatal blows. It follows that he cannot prove on the balance of probabilities either of the matters in s 20(1) of the Act.

Conclusion

Accordingly I find the accused committed the offence of murder.

That finding means that I must declare that the accused is liable to supervision under Part 5 or order him to be released unconditionally.[99] I will hear the parties on this matter.
[99]The Act, s 105.

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[2020] VSC 481

12 August 2020