R v Tonga [2020] NSWSC 1829

Supreme Court New South Wales

Medium Neutral Citation: R v Tonga [2020] NSWSC 1829 Hearing dates: 14 December 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Common Law Before: Fagan J Decision: Application for judge alone trial refused. Catchwords: CRIMINAL LAW – murder – application for judge alone trial – issue requiring application of community standards – application refused Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health (Forensic Provisions) Act 2007 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 Fang v R [2018] NSWCCA 210 Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Belghar [2012] NSWCCA 26 R v M'Naghten (1843) 8 ER 718 Category: Principal judgment Parties: Regina Sosiua Tonga Representation: Counsel: P Hogan (Crown) T D Anderson (Accused)

Solicitors: Solicitor for Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2019/249227 Publication restriction: No

Judgment (Ex tempore, revised, citations added) 1. Sosiua Tonga is charged that on 11 August 2019 at Eastern Creek he did murder Juan Miguel Cervantes. Before the Court is an application by the accused pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW) for an order that the charge be tried by judge alone. The Crown opposes that mode of trial. The Court may nevertheless order judge alone trial if "it considers it in the interests of justice to do so": sub-s (4). 2. For the purposes of determining the application, the Court has been provided with the detailed Crown Case Statement and with two psychiatric reports, one from Dr R Furst dated 25 April 2020 that was commissioned by the defence and one by Dr Adam Martin dated 2 June 2020 that was commissioned by the Crown. The Court has received comprehensive written submissions from counsel for the accused and for the Crown. 3. The circumstances that give rise to the charge can be stated very shortly, drawing upon the Crown Case Statement and referring to matters that it may be anticipated will be opened by the Crown. In August 2019 the accused was living at 13 Cable Street, Eastern Creek with his partner, Astrid Muller. Their child of about two months and two children of Ms Muller by an earlier relationship also resided at this address. In the backyard of the property was a shed that had been set up with furnishings and was used as a smoking area. It measured about two metres by two metres. It was located about five metres from the back door of the house. 4. On the evening of 10 August 2019, the accused dined in the house with Ms Muller at about 7:00 pm or a little later. After the youngest of the children had been put to bed and while the others were occupied, the accused and Ms Muller sat in the shed and talked. They discussed the future of their relationship, which was emotionally upsetting for both of them. The discussion involved a measure of disharmony. Mr Cervantes arrived at the property at about 10:00 pm and joined the accused and Ms Muller in the shed. He was a friend of both the accused and Ms Muller and had been in the habit of visiting them about once per week over the preceding two months. The Crown will allege that the accused was irritable in his manner with Mr Cervantes and in his reactions to him. Not long after 10:00 pm, Ms Muller left the accused and Mr Cervantes and went inside the house to attend to the baby. 5. Between 10:00 pm and 11:00 pm, whilst Ms Muller was back inside the house, the accused smoked methylamphetamine in a pipe. Ms Muller returned briefly to the shed between 11:00 and 11:30 pm, the time being a matter of inference from other events in the Crown Case Statement. Ms Muller observed that at that time the accused and Mr Cervantes were using their phones in a manner described in the Crown case statement as "playing with them." Ms Muller did not stay. After 11:30 pm the accused made numerous phone calls and sent a number of messages on the application WhatsApp to Ms Muller asking her to come back out from the house and to join him in the shed. 6. Then between 12:37 am and 12:51 am on 11 August, 2019 the accused sent 32 such messages to Ms Muller. Within a very few minutes after the last message there commenced a physical altercation between the accused and Mr Cervantes in the shed. Ms Muller heard the noise. She came to the back door and saw the accused pulling Mr Cervantes out of the shed into the backyard. The accused was 30 cm taller than Mr Cervantes and 40 kg heavier. 7. Mr Cervantes customarily referred to the accused as "Vake". Ms Muller heard him say repeatedly, "Tell Vake it is me, Miguel," and, "Vake it is me, Miguel." The Crown will allege that the accused threw Mr Cervantes back inside the shed and at some point armed himself with a 25 cm Phillips head screwdriver. He stabbed Mr Cervantes in the head with this and caused fatal brain injuries. Just before Ms Muller reached the shed door the accused said, "Call the ambulance." Ms Muller made a Triple-0 call at 12:55 am. The whole incident of physical violence between the accused and Mr Cervantes had lasted approximately four minutes. 8. According to the Crown case statement, at 12:56, 12:57 and 1:00 am the accused communicated, by text messages and phone calls, with three separate people and referred to what had just occurred. At about one minute past 1:00 am he phoned Triple-0 himself and said he needed police and an ambulance and he gave the address. When police and ambulance officers arrived, Mr Cervantes was unconscious but still breathing. He was transferred to hospital but his injuries were fatal and he died at 9.25 am that morning. 9. The Court has been informed that evidence will be given, either in the Crown case or in the defence case, or both, that from about February 2018 and possibly earlier the accused had exhibited and expressed paranoid perceptions. The accused was admitted to Cumberland Hospital at North Parramatta on 7 September 2018 following a suicide attempt. There is likely to be evidence that this suicide attempt arose from paranoid delusions. There will be evidence that by 18 September 2018 he was diagnosed as suffering from psychosis with delusions of persecution and of reference. It is not apparent, on the materials that have been tendered to the Court on this application, that there was a diagnosis at that time, or at any time up until the night of 10/11 August 2019, of schizophrenia or any other specific disorder of the mind to which his paranoid and persecutory delusions might be attributed. 10. There is also likely to be evidence adduced that after the accused's arrest on 11 August 2019 Justice Health made observations of the accused and recorded his descriptions of his own perceptions, which included delusional experiences and hallucinated voices. There will be evidence that the accused had been smoking methylamphetamine regularly since 2016 and using it daily from February 2018 up to his admission to hospital in September 2018 and using it again daily at times thereafter. The Crown will adduce evidence of a concentration of methylamphetamine in the accused's blood following his arrest consistent with a usage of the drug on 10 August, 2019. 11. The Court is informed by defence counsel that the mental illness defence will be raised under s 38 of the Mental Health (Forensic Provisions) Act 2007 (NSW) and the rules in R v M'Naghten (1843) 8 ER 718. The accused will not dispute that by deliberate acts he caused Mr Cervantes' death but will seek to prove on the balance of probabilities that at the time this occurred he was mentally ill, specifically that he was suffering from schizophrenia and substance abuse disorder (methylamphetamine) and by reason of his mental illness he was unable to understand that his conduct was wrong. The accused's counsel states that it will be submitted to the tribunal of fact that the accused perceived Mr Cervantes as a threat as a result of his mental illness, characterised by persecutory and paranoid delusions, and as a result of the mental illness he could not reason with moderate sense and composure about the actual circumstances that made his conduct wrong by the ordinary standards of reasonable people. 12. The defence case of a diagnosis of schizophrenia and substance abuse disorder, retrospective to the date of homicide, would be supported on the basis both of symptoms exhibited during his admission to Cumberland Hospital in September 2018 and observation of his condition and symptoms and outward manifestations after his arrest. It does not appear that these diagnoses had been made formally prior to the events in question. According to defence counsel's submissions, and noting the content of the psychiatric reports to which I have referred, it does not appear that the accused will contend that mental illness prevented him from knowing the nature and quality of his acts. 13. The Court is also informed that if the tribunal of fact does not find proved, on the balance of probabilities, the matters necessary to establish the mental illness defence, then the accused will invoke s23A of the Crimes Act 1900 (NSW). The subsections of s 23A that are relevant for present purposes are as follows (emphasis added): 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if-- (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. ... (8) In this section -