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 - "underlying condition" means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 1. The tribunal of fact would come to s 23A if it should not be satisfied, on the balance of probabilities, that the accused suffered from a mental illness, but only from some impairment caused by an underlying condition within the meaning of the section. The legal possibility of the tribunal finding an impairment of mental capacity for the purpose of s 23A where it is not satisfied that the accused suffered from a mental illness for the purposes of s 38 of the Mental Health (Forensic Provisions) Act is a matter to be argued and determined at the trial. The tribunal of fact might otherwise come to the question under s23A, even if it were satisfied that there was a mental illness, if it should not be satisfied that the accused was, by reason of that mental illness, unable to understand that his actions were wrong according to the standards of ordinary people. Not being satisfied that the accused was unable to understand right from wrong, the tribunal might nevertheless be satisfied that his capacity to understand the difference was impaired: s 23A(1)(a). 2. Assuming that the two psychiatrists give evidence to the effect of their written reports, it would be open to the tribunal of fact, if it is not satisfied on the balance of probabilities of all of the necessary elements of the mental illness defence, nevertheless to find that the pre-requisites of s 23A(1)(a) are established. The tribunal of fact would in that event come to the critical question in s 23A(1)(b), namely, whether there was an impairment of the accused's "capacity … to judge whether [his] actions were right or wrong" that was "so substantial as to warrant liability for murder being reduced to manslaughter". 3. In deciding that question the tribunal of fact would be required to bring to bear objective community standards. The question under s 23A(1)(b) is of that nature. It being clear that this issue under s 23A(1)(b) may well arise for determination, this charge should be tried by jury. Sub-section (5) of s 132 of the Criminal Procedure Act contains Parliament's express recognition that the Court may consider that the trial of a charge requiring the application of objective community standards should not be conducted by judge alone. That is not to say that an application such as the present turns solely upon whether the application of community standards will arise in the trial. However, that is one consideration that strongly informs my view that a jury should try this charge. A single judge sitting alone is inevitably affected by his or her own personal views and reactions and would not be an appropriate arbiter of community standards applying to the question that may foreseeably arise under s 23A in this case. 4. It also appears that there will be a question of fact as to whether any distortion of perceptions that the accused suffered on the night of 10/11 August, 2019, was caused by the mental illness that the forensic psychiatrists diagnose and that they say is consistent with his past manifestations, or whether it was caused by chronic ingestion of methylamphetamine, or only by the intoxicating effect of the drug ingested on the night of the homicide: see the extensive discussion of these alternatives in Fang v R [2018] NSWCCA 210 at [47]-[110]. The tribunal of fact will have the task of unravelling causation of whatever misperceptions the accused may have suffered on the night in question. That is a straight judgment on a question of fact. While it is certainly within the capacity of a judge sitting alone both to resolve contested issues of fact and to apply community standards, in my view no sufficient reason has been shown for dispensing with a jury in relation to the charge under consideration. 5. I consider that I should follow the observations of Hidden J in R v Belghar [2012] NSWCCA 26 at [118]: I think it is unhelpful to speak about a presumption or an onus when an application is made by an accused for trial by judge alone. The statutory scheme created by ss 131 and 132 of the Criminal Procedure Act is that a trial on indictment is normally by jury, and it is for the accused to raise material which might lead to the conclusion that it is in the interests of justice to depart from that mode of trial. It is then a matter for the judge to determine where the interests of justice lie in all the circumstances of the case, and the approach of the parties to the matter should not be adversarial. While the history of trial by jury suggests that the institution has been for the protection of the accused, it is clear that s 132(4) recognises that there is a community interest in trial by jury which in a particular case might override the accused's preference for a judge alone trial. So much is spelt out in sub-s (5). […] 1. In Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 Basten JA said (Button J agreeing): [9] It may be right to say that a trial judge faced with an application under s 132 should not approach the task imposed by the provision by reference to "presumptions" or "assumptions". That language may be inapt. However, the task cannot be assayed [or essayed] without bearing in mind that trial by jury is the conventional approach and, in the absence of an order under s 132, is mandated by s 131 of the Criminal Procedure Act. [10] It is also important to bear in mind the nature of the public interest which underpins the standard procedure of trial by jury. It was succinctly articulated by McHugh J in Fittock v The Queen (2003) 217 CLR 508; [2003] HCA 19 at [23] by reference to the constitutional provision: "The purpose of s 80 is to protect the citizen from the executive and judicial power of the Commonwealth by ensuring that trials on indictment will be determined by representatives of the community who are unanimous in their verdicts." Beyond such statements, applications under s 132 do not require a generic assessment of the perceived benefits and disadvantages of trial by jury as against trial by judge alone. Counsel should not be expected to engage in such a task, nor should the judge determining the application, nor should this Court on an appeal. It is sufficient to note that, as drafted, s 132 gives weight to the importance of the application of objective community standards in the resolution of a range of factual issues, some only of which are expressly identified. That is a consideration which favours trial by jury, in accordance with underlying principle. What is required is an assessment of the particular circumstances of the case. 1. At the risk of infringing Basten JA's caution against making "a generic assessment of the perceived benefits and disadvantages of trial by jury" in the course of determining an application under s 132, I note that the High Court has consistently recognised that "the public interest which underpins the standard procedure of trial by jury" does not rest solely upon protection of the citizen against executive and judicial power, which was referred to by McHugh J in Fittock v The Queen. That is a protection that the accused shows a willingness to forego in making such an application. In Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72 Deane J recognised a wider, general community interest in this form of trial (at pp 301-302): Trial by jury also brings important practical benefits to the administration of criminal justice. A system of criminal law cannot be attuned to the needs of the people whom it exists to serve unless its administration, proceedings and judgments are comprehensible by both the accused and the general public and have the appearance, as well as the substance, of being impartial and just. In a legal system where the question of criminal guilt is determined by a jury of ordinary citizens, the participating lawyers are constrained to present the evidence and issues in a manner that can be understood by laymen. The result is that the accused and the public can follow and understand the proceedings. Equally important, the presence and function of a jury in a criminal trial and the well-known tendency of jurors to identify and side with a fellow-citizen who is, in their view, being denied a "fair go" tend to ensure observance of the consideration and respect to which ordinary notions of fair play entitle an accused or a witness. Few lawyers with practical experience in criminal matters would deny the importance of the institution of the jury to the maintenance of the appearance, as well as the substance, of impartial justice in criminal cases (cf. Knittel and Seiler, The Merits of Trial by Jury, Cambridge Law Journal, vol 30 (1972), 316 at pp 320-321). The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury's deliberative processes, the jury's isolation (at least at the time of decision) from external influences and the insistence upon its function of determining the particular charge according to the evidence combine, for so long as they can be preserved or observed, to offer some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob. 1. The High Court has also frequently emphasised the importance of juries in the administration of criminal justice in the context of appeals concerning verdicts that are challenged on the ground of being unreasonable or unsupported by the evidence. See MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [48] where McHugh, Gummow and Kirby JJ referred to the "special authority and legitimacy" of jury verdicts and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 where the Court affirmed the jury as "the constitutional tribunal for deciding issues of fact" and noted the "central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect". The High Court's statements must necessarily be taken into account when "bearing in mind that trial by jury is the conventional approach and, in the absence of an order under s 132, is mandated by s 131 of the Criminal Procedure Act", as required by the decision in Director of Public Prosecutions (NSW) v Farrugia. 2. It is true that there will be some legal complexity in providing the jury in the present case with directions of law to enable them to adjudicate on the questions of fact that are likely to arise in connection with the mental illness defence and the partial defence of impairment under s 23A. But there are many questions of fact in criminal trials that have to be left to juries in accordance with complex and sometimes quite intricate legal directions. I do not see the expected issues in this trial as so difficult that there would be a risk that a jury would not be able to manage their task. 3. Other factors have been drawn to the Court's attention by the submissions of defence counsel. One is that the trial would be significantly shorter if conducted by judge alone. It would likely, in my view, be relatively shorter. However, on any view it is not going to be a long trial, given the apparent lack of dispute about the physical events and their timing. The consideration of saving some days of the time of the Court, jurors and the parties, is material, but it does not, in my view, outweigh the appropriateness of having the issues, to which I have adverted determined by a jury as representatives of the community in this case. The potential shortening of proceedings and consequent efficiency and cost saving is a consideration universally applicable to all cases that may be tried by jury and is not a consideration to be given weight in the absence of any feature that makes it of particular significance in the present case: R v Belghar at [33]-[34], [103] and [110]-[111] (McClellan CJ at CL) and at [120] (Hidden J). 4. I have noted s 365 of the Criminal Procedure Act, pursuant to which the Court may initiate consideration an order for judge alone trial. I do not regard that new section as providing any particular guidance as to how the discretionary power should be exercised in the present case, where an application has been made by the accused and is opposed by the Crown. Certainly there have been significant delays in criminal trials this year because of the inability of the Court to assemble jury panels during the public health crisis. That difficulty is on the wane now and criminal trials are being re-listed and the backlog of trials is being addressed. It is not a powerful consideration on the present application. 5. The accused, through his counsel, has also referred to a risk of prejudice against himself in a trial by jury in the present case because of his personal life involving his relationship with Ms Muller and her having had a child by him whilst he was married to another woman with whom he also has a family. There has been expressed a concern that the jury may speculate about Ms Muller's involvement in dealing in drugs. A further point of potential prejudice is said to be that the nature and the manner of his attack on Mr Cervantes may inflame the jury against him. All of those circumstances are the kinds of matters that commonly arise in criminal trials. Juries are invariably directed not to be prejudiced by such matters. A premise of jury trial is that juries will follow such directions from the trial judge: Gilbert v The Queen (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J) and [31]-[32] (McHugh J, dissenting in the result). I do not consider that the possible prejudicial matters in this case are particularly inflammatory. I would expect that clear directions from the trial judge would alleviate any concern, or risk, about prejudice against the accused. It is the experience of the Courts that juries do, as they are instructed, attend to the evidence that actually bears on the events that have given rise to the charges before them. It is the experience of the Courts that juries follow their instructions and assess cases objectively and verdicts returned support that understanding. 6. For those reasons I do not find anything in the additional considerations that have been raised by the accused that would deflect from the view that I have formed about the appropriate mode of trial. For the purposes of s 132(4), I do not consider it in the interests of justice that I should order this charge be tried by judge alone. Orders 1. The application is dismissed. It is ordered that the prosecution be listed before the arraignments judge on 12 February, 2021. ********** Amendments 14 December 2021 - Special verdict entered DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2021