Sometimes the evidence people want isn’t there
About 100 nautical miles off the Australian coast on the first night of a cruise, Dianne Brimble accepted a dose of the illicit drug Fantasy from a man she barely knew.
Mark Wilhelm gave her the drug, that he admits - but the offer of a drug alone does not amount to manslaughter. This was the personal assessment of a Supreme Court of NSW judge Roderick Howie yesterday, as he took a guilty plea from Mark Robin Wilhelm to the supply of Fantasy to Ms Brimble - and he’s right.
As much as her bereaved family and others may have looked to a manslaughter conviction for vindication, the NSW DPP rightly revealed today they would no longer prosecute him for manslaughter.
The evidence was simply not there to support it.
Wilhelm could not have foreseen that taking a party drug, like millions of people do every day, would have ended in this lovely and happy woman’s sudden and tragic death.
While the drug was certainly one link in a chain of events that led to Ms Brimble’s tragic death, it was not the only factor - her age, the alcohol, and a combination of other factors well beyond anyone’s control also contributed.
While there have been allegations of an earlier drink spiking, an earlier dose administered, there was not a skerrick of evidence or fact to support such a claim.
It might not be fair - but it seems at the end of the day, rightly or wrongly - nobody can be held criminally liable for Ms Brimble’s demise.
Here’s what Justice Howie had to say:
I just want to say in this matter that there will be members of the public who believe, probably on misleading information, that Mr Wilhelm should be held to be responsible for the death of Ms Brimble. Whether he should or should not now is passed as the Director of Public Prosecutions, and in my view quite appropriately, has decided in all of the circumstances not to proceed in relation to the charge of manslaughter.
The death of Ms Brimble occurred in December 2002. The Coronial Inquiry was, to the extent to which I am aware of it, unfortunate in that it allowed a lot of material, which ultimately was irrelevant, to be exposed to the media.
To the extent again that I have seen the material, unfortunately little regard was paid at times to the rights of people who had not been charged, based upon rumours, misinformation, suspicion and conjecture which has no basis on the evidence that I have seen.
The charge of manslaughter, as it was finally put to the jury, was an offence of almost technical nature. True it is that the jury could have found that Mr Wilhelm committed manslaughter in that he supplied a prohibited and dangerous drug to Ms Brimble and therefore substantially contributed to her death. It was, as I have said, a most technical offence in that Mr Wilhelm had no basis to believe that he was in any way putting Ms Brimble’s life at risk.
As I indicated on Monday, I have no doubt that a significant number of the jury at the trial were not prepared to hold that Mr Wilhelm was criminally responsible for Ms Brimble’s death and I completely understand why that might be so. This is why we have juries.
We have juries, particularly in matters such as manslaughter, to put in effect the community attitude stripped of all of the prejudice, stripped of all of the hysteria, looking at the facts objectively, bringing to bear their common sense and experience of life and to bring a valued community judgment. I would not have been surprised had another jury been unable to agree upon a verdict of manslaughter or had even acquitted Mr Wilhelm.
I can understand that the family of Ms Brimble would have been dismayed and distraught by her death, and particularly by the unsavoury circumstances surrounding her death and the behaviour of people at the time, but one has to strip away from this matter simply bad, loutish, or maybe even insensitive behaviour, and try and look past that to the real facts of this matter and they were as set out in the Agreed Statement of Facts that was presented to me in respect of an offence with which Mr Wilhelm was not guilty, and that is that Ms Brimble was in the cabin voluntarily.
She may have been there because she was intoxicated and she may have been prepared to do things that, if sober, she wouldn’t have done but there are many people in life who conduct themselves in that way and perhaps some of the young men and women who were present on that night would not have behaved in the same way as they did if they had not been intoxicated or be in the group environment in which they were.
I am saying this because it needs to be said that the record has to be made straight, and because I am not sentencing Mr Wilhelm for manslaughter but I will be sentencing him for a supply of drug, that the community be aware that at the end of the day the criminality of Mr Wilhelm is probably encompassed in the offence that he is to plead guilty to and that although the death of Ms Brimble was, to say the least, unfortunate, it was only technically Mr Wilhelm’s fault.
She was an adult who, on the evidence, voluntarily took the drug and, knowing what the drug was, she did not believe it would injure her, neither did Mr Wilhelm believe that it would injure her.
That is the situation based upon the evidence, discounting rumour, discounting conjecture, discounting hysteria and discounting prejudice. All I can say it’s been an unfortunate matter, an unfortunate procedure but in the end I am satisfied that the fair and just result will ensue by the charge now being laid against Mr Wilhelm.
It is, in effect, as I have said, his real criminal behaviour and, although he might have been morally or technically responsibly for the death of Ms Brimble, I doubt that he was criminally responsible.
Having said those words that are simply my own personal views, I will stand the matter over.”
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