R v Tonga [2021] NSWSC 1064

Supreme Court New South Wales

Medium Neutral Citation: R v Tonga [2021] NSWSC 1064 Hearing dates: 23 August 2021 Date of orders: 25 August 2021 Decision date: 25 August 2021 Jurisdiction: Common Law Before: Wilson J Decision: 1. On the charge that the accused on 11 August 2019, at Eastern Creek in the State of New South Wales, did murder Juan Miguel Cervantes, the Court finds the offence proven but the accused not criminally responsible for it. Catchwords: CRIME – murder – defence of mental health impairment – where parties agree defence available – judge alone trial – special verdict – offence proven but accused not criminally responsible Legislation Cited: Criminal Procedure Act 1986 (NSW) Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: R v Tonga [2020] NSWSC 1829 The King v Porter (1933) 55 CLR 182; [1933] HCA 1 Category: Principal judgment Parties: Regina (Crown) Sosiua Tonga (Accused) Representation: Counsel: K McKay SC (Crown) T D Anderson (Accused)

Solicitors: Solicitor for the Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2019/00249227 Publication restriction: Nil

JudgmenT 1. HER HONOUR: On 11 August 2019 the accused, Sosiua Tonga, was arrested and charged with the murder of Juan Miguel Cervantes. He was later committed for trial to this Court, with his trial fixed for 23 August 2021. 2. On 11 August 2021, with the leave of the Court, the accused filed an election pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) seeking to have his trial heard before a judge alone. The Crown agreed with the application and, consequentially, a trial by judge order pursuant to s 132(2) of that Act was made by the Court. 3. The question of the trial proceeding without a jury had previously been considered by the Court, with a similar application refused on 14 December 2020: R v Tonga [2020] NSWSC 1829. The reason for the differing order made on 11 August 2021 lies in the substantial alteration to the landscape in which criminal trials can be heard in New South Wales subsequent to the advent of the Delta Variant of the COVID-19 virus. There are now Public Health orders in force that did not apply in December 2020 and which prevent a jury of 12 convening to hear criminal trials. The reason for the further application by the accused, and the Crown's consent to it can, no doubt, be found in that change. 4. Pursuant to the trial by judge order the accused was arraigned before me on 23 August 2021 on an indictment charging him for that he: "On 11 August 2019, at Eastern Creek in the State of New South Wales, did murder Juan Miguel Cervantes." 1. He entered a plea of not guilty (on the grounds of mental illness).