R v Munze (No 3) - [2020] VSC 846

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
DATE OF HEARING:	10 December 2020
DATE OF JUDGMENT:	15 December 2020
CASE MAY BE CITED AS:	R v Munze (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 846

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CRIMINAL LAW – Murder – Accused 84 years old with acquired brain injury and dementia – Accused found unfit to be tried pursuant to Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Accused found at special hearing to have committed the offence – Declared liable to supervision – Non-custodial supervision order made.

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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:

On 10 December 2020 I made a non-custodial supervision order (NCSO) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act) with respect to Werner Munze, indicating that I would publish my reasons for doing so later. These are those reasons.

Procedural History

On 2 March 2019 Mr Munze, then aged 83 years, was found on the floor of his matrimonial home lying next to the body of his deceased wife. He was arrested and taken to hospital. He was later charged with murder.

Subsequent neuropsychological testing and psychiatric assessment revealed that he suffers from significant cognitive impairment arising from multiple causes.

On 18 May 2020 I determined that Mr Munze was unfit to stand trial and, further, that he was not likely to become fit to stand trial within the ensuing 12 months.[1]
[1]R v Munze [2020] VSC 272.

On 30 June and 1 July 2020 I heard the special hearing of the murder charge sitting as a judge alone, pursuant to the temporary measures of Division 3 of Part 11 of the Act. On 12 August 2020 I found that Mr Munze had committed the offence of murder.[2] The facts of the case, which were not disputed, are described in detail in that decision.
[2]R v Munze (No 2) [2020] VSC 481.

On the same date I declared him liable to supervision under the Act.[3] Having done so, s 26 of the Act mandates that I make a supervision order in respect of him.
[3]The Act, s 105(a).

Section 47 of the Act requires the Court to request the Secretary to the Department of Health and Human Services to provide the Court with a certificate of available services. Section 41 of the Act requires the Court to receive and consider the report of a registered medical practitioner or registered psychologist as to the mental condition of the person declared liable to supervision.

The Court has received two such certificates and two such reports.

On 2 October 2020 the s 47 certificate stated that there was, at that time, no appropriate facility available for the treatment and supervision of Mr Munze. The s…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Munze (No 3)

Details

AGLC: R v Munze (No 3) [2020] VSC 846
Case: [2020] VSC 846
Decision Date: 15 December 2020

CaseChat Overview and Summary

In the case of R v Munze (No 3), the appellant, aged 84, was charged with the murder of his wife, which he was alleged to have committed in 2018. The appellant had a history of acquired brain injury and dementia, leading to significant cognitive impairments. Following a trial, the appellant was found unfit to be tried under the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The court was required to determine whether the appellant had committed the offence, and if so, whether he was liable for supervision.

The court examined evidence from medical professionals, who confirmed the appellant's diagnosis of acquired brain injury and dementia, which severely impacted his cognitive functions. The court was tasked with balancing the appellant's mental impairment against the gravity of the offence and the need for public safety. Given the appellant's age and medical condition, the court concluded that he had committed the offence but was unfit to be tried due to his mental incapacity.

The court ultimately declared the appellant liable to supervision, acknowledging his unfitness to be tried but recognising the necessity to ensure public safety. A non-custodial supervision order was made, reflecting the appellant's medical condition and the lesser risk he posed under supervision. The court emphasised the importance of balancing the rights of the accused with the need for societal protection.

Orders