R v Curzon [2000] VSCA 128

R v Curzon [2000] VSCA 128 - VSCA 2000 case summary — Zoe

[9]

The deceased and the applicant were drinking beer at the applicant's home on the evening and into the night of 24 September 1997. Notwithstanding that he was very drunk, the deceased kept pressing the applicant to have sex with him, including oral sex. The applicant said to the police that she had known what "would happen", namely, that although she might have become sexually aroused, the deceased would not be able to have sex because he would be unable to have an erection due to his state of inebriation. This had apparently occurred on other occasions. In any event, she refused to participate in any sexual acts with the deceased. He continued nevertheless to press his wishes in that regard to the point where the two argued about the matter in the kitchen. The deceased refused to leave despite the applicant's request that he do so. According to the applicant she "cracked" and blacked out. When she came to, the deceased was lying on the couch "with these huge stab wounds all around his back". She believed that he was still alive so that, in her own words, in order "to finish him off", she first attempted to slit his throat with a razor which she had found in the lane, and then stabbed him a number of times with a butcher's knife. On at least one occasion she drove the knife into his throat using a meat mallet until she heard a "crunch". The medical evidence, however, was that the life threatening injuries suffered by the deceased were not to his throat but were four wounds in his back and two wounds in his chest (all of which were inflicted by the accused) that penetrated the deceased's chest cavity. One of these stab injuries led to the collapse of his left lung. In all, she inflicted around 36 injuries on the body of the deceased who, according to her, took one and a half hours to die. The post-mortem examination of the deceased's body was conducted on 25 September 1997. It was found, inter alia, that the applicant's blood alcohol level was 0.27 and it was considered that this was the blood alcohol level at the time of his death.

[10]

Before continuing with the chronology of events, I should mention that the applicant is a person of short height who was aged 36 at the time of the killing. She was born in England in the course of a traumatic birth which left her mentally impaired. She came to Australia with her family in 1974 at the age of thirteen. The applicant is an asthma sufferer and is hard of hearing, as a result of which she has been unable to develop verbal communication skills and finds it difficult to express her thoughts verbally. Consequently, the applicant's speech and demeanour on occasions create the false impression that she is mentally retarded. The applicant eventually left school at the age of 15 and was placed on a disability pension. She had a variety of jobs over the years and, at the time in question, her only paid work was delivering morning newspapers. Although her parents were divorced, her mother, who later remarried, kept in touch with her. It seems to be common ground that the applicant's level of intellect is substantially below that of the average person, her IQ level being within the bottom 10 per cent of her age group. In terms of her development, the applicant is immature and, according to her mother, has the mentality of a 14 year old. In addition to her regular, if not heavy, consumption of alcohol, the applicant took, on a regular basis, a significant number of prescribed drugs and other medication. An indication of the extent of her use of such drugs can be gathered from the fact that, on the day of the offence, she had 40 to 50 medications on her premises which were supplied to her by various doctors and chemists. The drugs included Normison, a sleeping tablet, which the applicant claims she was prescribed to take at the rate of one or two per day whereas, in fact, she was regularly taking many times that number on most days. According to what she told the police, on 24 September 1997 she commenced taking Normison tablets at about 3 or 4 p.m. and continued to take them from time to time thereafter on that day so that by the time the police saw her at approximately 5 a.m. on the following day she had taken, according to her, 25 Normison tablets.

[44]

As I have mentioned previously, it is apparent that his Honour intended that the critical sentence in the aide memoire, and his explanation of it, should convey to the jury that they were "entitled" to take into account the applicant's personal characteristics as a preliminary to both the subjective and objective tests. His Honour may well have been justified in that view if the document had been given to persons familiar with the principles of provocation as laid down in, for example, Masciantonio. But the jury had no such knowledge and, in particular, they were not told in terms that the applicant's personal characteristics should be taken into account in assessing the gravity of the provocation as a preliminary to the objective test. In the circumstances, the jury were likely to have given the words of the critical sentence their plain and ordinary meaning, namely, that they were entitled to take into account the applicant's personal characteristics when they considered (together) the gravity of the provocation and whether the applicant in fact lost self-control. They would know from what his Honour had previously told them and from the earlier part of the aide memoire that such a consideration would be undertaken by them in the context of the subjective test. They would most likely regard that sentence as telling them that the personal characteristics of the applicant would be taken into account only in that context. Such an interpretation was, in effect, reinforced by his Honour when, after referring to the sentence in question, he said that it was "at that point", namely, when considering the gravity of the provocation and whether the accused lost self-control, that the jury were entitled to take into account the applicant's personal characteristics. They would or were likely to have understood that as a reference to the subjective test. His Honour then effectively contrasted that with the consideration of the objective test. "But" said his Honour, "when you are looking at the ordinary person, the only personal attribute which is relevant ... is that of sex and maturity". Such an observation was likely to have confirmed to the jury that the applicant's personal characteristics could be taken into account in the context of the subjective test.

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