R v Toki, Martin [2009] NSWDC 186

New South Wales District Court

CITATION: R v Toki, Martin [2009] NSWDC 186

HEARING DATE(S): 12/02/09, 16/02/09, 17/02/09, 18/02/09, 19/02/09, 20/02/09, 23/02/09 and 24/02/09

JUDGMENT DATE: 16 April 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

Count 1 (8/07/07): Not Guilty on the grounds of mental illness. DECISION: Count 2 (30/08/07): Not Guilty Count 3 (26/09/07): Not Guilty on the grounds of mental illness. In regards to count 1 and 2. HH ordered Mr Toki to be placed in a mental health hospital.

CATCHWORDS: Criminal Law - Judge alone trial - malicious damage by fire (x3) - sentenced prisoner - fires set in cells - defence concede fire - issues - causation - mental health of accused at time of fire - findings - fires in two cells ignited by accused - psychological profile on date of each fire assessed - mental illness defence made out in 2 charges - finding - punitive approach of depreivation of property and priviledges by custodial authorities exacerbated forces of accused's mental deterioration.

PARTIES: Regina Martin Tuamuri Toki

FILE NUMBER(S): 2008/0765

COUNSEL: Crown: M Fox - Crown Prosecutor Accused: S Egan - Public Defender

SOLICITORS: Mr M. Slattery - O.D.P.P. M.D. Walsh, Goulburn

JUDGMENT 1. Martin Toki is a sentenced prisoner. While the details of his offence are not before the court, what is before the court is that he is serving a very substantial sentence. He was born in the Cook Islands forty two years ago. From there he moved to New Zealand, aged six and to Australia in his early teenage years. Some time after he commenced his sentence, he was shifted to the segregation unit at the Goulburn Correctional Centre. He is housed in the High Risk Management Unit (HRMU). He told Dr Neilson, "I have been isolated for seven years...in segregation for six years...including four years straight". 2. Dr Neilson noted Toki was unable to give a coherent account of why he had been kept in isolation. The Crown has not sought to dispute that part of the history given by Toki to Dr Neilson. It was during this later period, of segregation that four fires occurred in cells occupied by Toki. The Crown has charged him with three counts of malicious damage by means of fire the structures, fixtures and contents of the cell he was occupying. The first offence is alleged to have occurred on 8 July 2006 in cell 7(the Cell 7 fire). The second on 30 August 2006 in cell 2(the Cell 2 fire). And the third on 26 September 2007 in cell 12(the Cell 12 fire). To each of these charges, he has pleaded not guilty. He has elected to be tried by judge alone. His election agreed to by the prosecution is exhibit A. In those circumstances, the functions of the trial judge and the functions of the jury fall to me. I must determine the facts of the case. I must also remind myself of the relevant principles of law that must be applied. Bearing in mind the plea of not guilty, I must remind myself the appropriate starting point is to accept what the accused says, that he is not guilty and is entitled to remain so, unless and until if it be the case, the Crown proves his guilt and proves that guilt beyond a reasonable doubt. 3. I remind myself each of the charges has only one essential element. Namely that on the relevant date, the accused did maliciously damage, by means of fire the structures, fixtures and contents of the relevant cell. For the purposes of this offence, I take, "maliciously" to mean "deliberately" or "recklessly". 4. The findings of fact are made less difficult for me because the defence concede the fact of fire in each of the occupied cells on the relevant day is not disputed. Damage to the structures, fixtures and contents of each occupied cell by means of fire is not disputed. What is in dispute in respect of the Cell 2 fire is the cause of the fire. 5. The accused case is the fire was caused by an electrical occurrence for which he was not responsible. 6. In respect of the Cell 7 and 12 fires and in the event that I found the Cell 2 fire deliberately lit. A defence of mental illness is advanced by the accused. 7. Findings of fact are for me to make. I remind myself in making findings of fact, I may accept part or all of what a witness says. There are some criteria of value in assessing a witnesses testimony. I should remind myself of them. They include observing the demeanour, the attitude of the witness; the way in which he or she answered questions; whether the witness appeared to answer frankly or whether there was some attempted avoidance or obfuscation. Inconsistencies in evidence may be indicators of unreliability. Of course there may be other explanations for inconsistency such as a failure to understand a question or articulate an answer accurately. Where there is supporting evidence, I may the more readily accept a witness. In approaching this case, I must remember to remain impartial. I must put any bias or prejudice I may have to one side. I must look within myself if there is any area of potential bias and if so, put it to one side. I acknowledge there is evidence before me that demonstrates the accused has been in serious trouble with the law. 8. There is also evidence demonstrating that at least from the point of view of the Department of Corrective Services, the accused has been in serious trouble with them. These are matters which must play no part in my fact finding other than backgrounding why it is that the accused is housed in the HRMU. I remind myself to confine my findings to the sworn evidence, exhibits and conclusions of fact open on the direct evidence. I remind myself that such conclusions of fact as I draw from the direct evidence, even if they are to be adverse to the accused, are to be the only conclusions reasonably open on the evidence. I must recognise the difference between speculation and inference. Where more than one conclusion of fact is available then I would be speculating to draw any conclusion of fact from that evidence at all. Nor can I draw a conclusion of fact where there is no evidential foundation for it. Again that would be speculating. 9. I remind myself the fact that the accused gave evidence does not shift to the burden of proof. That burden of proving the guilt of the accused in the way I earlier indicated remains upon the Crown throughout this trial. I remind myself there was no obligation upon him to give evidence. The accused gave evidence in the trial. He could not have been compelled to do so. He has a right to silence. His evidence was subject to cross-examination. I have assumed the accused well knew he would be cross-examined when he gave his evidence. His willingness to give evidence even knowing it would be tested by cross-examination in circumstances where the court would pay particular regard to the testing of the accused evidence is a matter that can be taken into account in his favour. His evidence became evidence in the case. It may or some of it may have pointed towards his guilt or it may or some of it may have demonstrated difficulties the Crown had in proving his guilt. 10. Or it may have been capable of persuading the court of his innocence, not that he had any burden to do so. As with other evidence it may be accepted in whole or part, rejected in whole or part. If I am to reject the accused evidence, it must be upon some rational or reasoned basis. Facts Cell 7, 8 July 2006 11. 8 July 2006 was a Saturday. First Class Correctional Officer Ricky Smith had been with the Department of Corrective Services approaching nine years. On this Saturday he was working in the HRMU section of the Goulburn Correctional Centre. At 3.20pm, he was in the meal room with other officers. One of the officers notified those present, "There's a fire alarm in unit 7". A number of the officers including Ricky Smith responded. In his statement of 15 July 2007 which was tendered and is exhibit G. He said, 6. "I approached the front of cell 7 and I could see smoke coming out from around the door. This cell is occupied by inmate Martin Toki and he is a one- out prisoner in that cell. I saw Henry open the hatch at the front and myself and other officers retrieved a smoke hood each from the office. I saw Officer Henry and Harmer put their hoods on." 7. Once the door was opened, heavy smoke came out of the cell. I recall the officers yelling at Toki to get out and there was no response. After about 30 seconds I saw Toki crawl out from the inside of the cell. I recall that Officer Henry and Harmer handcuffed Toki. I recall that he has some breathing difficulties. Harmer and Henry escorted him to the monitor room cell which was near the loading dock