New South Wales Court of Criminal Appeal CITATION: TUIGAMALA v REGINA [2006] NSWCCA 380 HEARING DATE(S): 22 November 2006 JUDGMENT DATE: 22 November 2006 JUDGMENT OF: McClellan CJ at CL at 1; James J at 36; Hislop J at 37 DECISION: 1. Appeal upheld; 2. Conviction quashed and a new trial ordered. CATCHWORDS: CRIMINAL LAW - APPEAL AGAINST CONVICTION - MURDER - fresh evidence - fitness to be tried - psychological assessment - neuropsychological assessment - assessment of intellectual capacity - intellectual disability LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 R v Kent (NSWCCA, unreported, 25 September 1996) CASES CITED: R v Rivkin (2004) NSWCCA 7; (2004) 59 NSWLR 284 R v RTI (2003) 58 NSWLR 438 PARTIES: David Tuigamala (Appl) The Crown FILE NUMBER(S): CCA 2006/89 COUNSEL: M Ierace SC (Appl) P Ingram (Crown) SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2004/37 LOWER COURT JUDICIAL OFFICER: Wood CJ at CL LOWER COURT DATE OF DECISION: 17 December 2004 IN THE COURT OF CRIMINAL APPEAL 2006/89 McCLELLAN CJ at CL JAMES J HISLOP J WEDNESDAY 22 NOVEMBER 2006 TUIGAMALA, David v REGINA Judgment 1 McCLELLAN CJ AT CL: The appellant was convicted of the murder of Barry John Alexander. The offence was alleged to have occurred in the early hours of 6 September 2003 when the appellant and the deceased were at the City Hotel in Campbelltown. 2 It is unnecessary for the purposes of this appeal to relate the facts in detail but the evidence at the trial, as I understand it, indicated that the appellant landed a blow to the deceased's chin or thereabouts, causing him to fall to the floor. The deceased was unconscious but was assisted by a security officer and at that time the appellant, who was wearing boots, kicked the deceased once to the face with considerable force. He died within minutes as a consequence of broken facial bones and tissue injuries causing obstruction to his airways. 3 The event is a great tragedy both affecting, of course, the deceased and his family. 4 The appellant was tried before Wood CJ at CL (as he then was) and a jury. The jury returned a guilty verdict and Wood CJ at CL proceeded to sentence him to a non-parole period of 20 years with a total term of imprisonment of 26 years. 5 The defence case at trial was that the Crown would be unable to establish beyond reasonable doubt the requisite mental element so as to prove that the appellant acted with the intention of inflicting grievous bodily harm upon the deceased. 6 The appellant was said to have acted in a spontaneous manner affected as he was at the time by significant quantities of alcohol. 7 The appellant gave evidence at his trial. There are apparent difficulties, evident in the transcript, in the responses which he made to some questions from his own counsel. There are also responses which reveal difficulties when he was cross-examined. The appellant is of Samoan origin and the evidence suggests he has difficulties in communicating in the English language. 8 Before he was tried the appellant was assessed by Dr Reid who examined him at the Parklea Detention Centre administering some tests in an endeavour to determine the appellant's intellectual capacity relevant of course to his fitness to be tried and the appropriate manner for the conduct of any trial. 9 The evidence disclosed that Dr Reid's processes were interrupted and the tests which he undertook were not carried out in an ideal environment. Dr Reid himself now accepts that his assessment process may have been compromised by the circumstances in which it was required to take place. 10 The appellant brings one ground of appeal in relation to his conviction and also seeks leave to appeal in relation to his sentence. The ground of appeal is framed in the following way: "The trial miscarried as a consequence of the Court's unawareness that the appellant had a significant intellectual disability, which impacted on: (i) the admissibility of certain evidence, (ii) the manner in which his sworn evidence was taken and the inferences which could reasonably be drawn from it, and (iii) the availability of certain defences". 11 As the appeal has been advanced in oral argument the single question which has arisen is whether or not the appellant was fit to be tried (s 11 Mental Health (Criminal Procedure) Act 1990). That question of course has a number of components to it and it may be that although fit to be tried, if he is suffering from a relevant intellectual impairment, the form of the trial may require modification to accommodate to that impairment. 12 Although, as I have indicated, Dr Reid was of the view at the time of the trial that the appellant was fit to be tried, evidence has been admitted in this Court which places a different perspective on that question. I should say before addressing that evidence in detail that there is a dispute between the doctors and psychologists who have assessed the appellant as to whether or not he was intellectually impaired in any significant way and the consequences of that impairment. 13 The question of an accused's fitness to be tried when that issue is raised in an appellate court has been considered on many occasions. More recently it was considered by this Court in R v Rivkin (2004) NSWCCA 7; (2004) 59 NSWLR 284. In the joint judgment of the Court approval is expressed of the statement by Howie J in R v RTI (2003) 58 NSWLR 438. In Rivkin the Court said at [292]: "Howie J, with whom Tobias JA and Shaw J agreed, said: 'In order to enliven this Court's jurisdiction, it is sufficient if there is material before the Court raising a question as to the appellant's fitness to stand trial before Judge Twigg. If such material exists, the Court has to determine whether there was the possibility of a miscarriage of justice arising. If the appellant was unfit at the time of the two trials before Judge Twigg, each of those trials was a nullity and the convictions would have to be quashed'." 14 The Court in Rivkin acknowledged that consideration was given to the procedure which should be followed in R v Kent (NSWCCA, unreported, 25 September 1996) where the question of fitness arose after conviction but before sentence. The trial judge refused to pass sentence on the appellant who appealed to the Court of Criminal Appeal against his conviction. The Court determined that the appropriate course was to refer the matter back to the District Court for a fitness hearing and ordered that if the appellant was found unfit, such finding should be brought back in the ultimate. In that case the appellant was found unfit leading to a referral to the Mental Health Review Tribunal. 15 The Court in Rivkin said that procedure should not be followed and discussed the relevant provisions of the Mental Health (Criminal Procedure) Act in relation to the holding of a fitness hearing. The Court confirmed that the appropriate course for this Court to take is to quash the conviction and order a new trial in circumstances where the Court was satisfied that there was a possibility of a miscarriage of justice having arisen by reason of the evidence before this Court disclosing a lack of fitness to be tried. 16 Both the appellant and the Crown have arranged for the appellant's intellectual and psychological capacity to be assessed for the purpose of addressing the question of his fitness to be tried and the form of that trial. A number of those who have been consulted have expressed a view about the appellant's intellectual capacity. Most of those who have assessed him have concluded that his intellectual capacity is at the lowest end of any identifiable range of capacity leading to the conclusion that he suffers from intellectual impairment. 17 The task of assessing his true level of intellectual capacity is made more difficult by the fact that he is of Samoan origin and apparently has difficulty conversing fluently in English. That difficulty may be a product of his intellectual capacity or it may be an artefact of the fact that he has not made appropriate efforts to master the English language. 18 There is evidence which indicates that he is capable of communicating in the English language and there is evidence which suggests that he understands many questions which are put to him and is able to make a rational response to them. However, there is also evidence from the various tests that have been undertaken of answers to questions asked of him which suggest an irrational response reflecting either the fact that he did not understand the concepts, expressed in English, or does not understand the concept in any event. 19 It is unnecessary for this Court to resolve those matters beyond identifying the fact that there is a body of opinion which suggests that the appellant's intellectual capacity is at the lowest end of any identifiable range. 20 In relation to his fitness to be tried, some of the persons who have examined him have expressed conclusions in direct terms. Dr Wong, a consultant psychiatrist who carried out an assessment, expressed this opinion: "In the light of these considerations, I am of the opinion that the appellant is not competent to be a witness and not fit to be tried, principally because he lacks the capacity to give an account of the events in question, to instruct his legal representatives, to understand the evidence given and to follow the Court proceedings generally." 21 Dr Pulman, who is a clinical neuropsychologist, has assessed the appellant and provided an extensive and thorough report. Her conclusion is expressed in the following terms: "In conclusion, it is my opinion, that on the balance of probabilities Mr Tuigamala is unfit to be tried. In accordance with R v Presser [1958] VR 45, Mr Tuigamala does not have the ability to generally understand the nature of the proceedings, to follow the course of the proceedings or to instruct counsel." 22 Although not directly expressing an opinion about the appellant's fitness to be tried, Dr Susan Hayes, Associate Professor and Head of the Centre for Behavioural Sciences in the Department of Medicine at Sydney University says this: "Referring to Section 13(4) of the NSW Evidence Act, I consider that there are two important issues. First, in my opinion, Mr Tuigamala was incapable of understanding or communicating a reply to a question of fact in response to many of the questions he was asked at trial. This is described in detail in my report dated 2 November 2005. However, in my opinion that incapacity could have been overcome if Mr Tuigamala's intellectual disability, communication deficits and English as a second language had been taken into account during the trial, by those who posed questions to him. These factors were not taken into account. Therefore, in the situation of the trial before Justice Wood and the jury where no account was taken of his intellectual disability, he was not competent to give evidence. In my opinion, if the situation had been different, and the Court had been aware of the implications of Mr Tuigamala's deficits in language and intelligence, and if the questioning process had taken these deficits into account, Mr Tuigamala would be competent to give evidence. The questions put to Mr Tuigamala would need to be brief, he would need time to formulate a response, and the questions should not contain more than one concept at a time. The questions should not be in the form of a statement being made and then Mr Tuigamala being asked to agree with that statement." 23 The doctor says she did not conduct a detailed assessment of Mr Tuigamala's fitness to be tried when she assessed him. Nevertheless, she says he seemed to understand the charges against him, his plea and the appeal process. She considered that he could give his version of events and would be competent to give evidence if he were questioned appropriately, taking into account his intellectual disability and communication/language deficits. 24 Dr Olav Nielssen accepted the opinion of Professor Hayes and it is unnecessary for me to separately refer to what the doctor says. 25 The appellant was also assessed by Dr Bruce Westmore, a forensic psychiatrist. His conclusions are expressed in the following terms: "At the time I examined him I thought Mr Tuigamala was fit to be tried. He could give an account of what occurred leading up to the charges and he has an adequate understanding of the Presser issues. Although intellectually disabled he would be able to follow evidence given in court, however I concur with the opinions expressed by Associate Professor Susan Hayes when she discusses in some detail his intellectual problems and how they could potentially impact on his fitness and what might need to be done during a trial to overcome those difficulties." 26 I have previously referred to Professor Hayes' remarks in that regard. 27 Dr Westmore continued: "There is nothing in his history to indicate he would have a mental illness defence to the matter now before the court. On the balance of probability his self induced intoxication along with 'provocation' played an immediate and direct role in the offending behaviour. He would not have available to him the defence of substantial impairment. If his mental state at the time the last trial proceeded was similar to his current mental state, then again with qualifications it would be my view that he would have been fit to be tried at that time. Once more I note the observations, comments and recommendations of Associate Professor Hayes. If the original trial proceeded in the 'usual fashion' without there being regular checks to ensure that Mr Tuigamala understood what was occurring, then that would have disadvantaged him. If allowances were not made for his intellectual disability, language issues and cultural and social issues, then that also would have disadvantaged him." 28 The Crown also retained Ms Jill Farrelly, a clinical psychologist. She takes issue with Professor Hayes and in an exchange which has occurred in a number of written communications expresses the view that the appellant when tested was malingering and concludes that he was fit to stand trial. 29 Much of the debate between Ms Farrelly and Professor Hayes has to do with the nature of the tests which Professor Hayes administered, whether they were appropriate for the problem which was being investigated, and whether the conclusions are accordingly of relevance to the issues faced by this Court. 30 Notwithstanding the length at which Ms Farrelly has written on the matter and the clarity with which the debate is revealed in the various documents, I am not able to reach a conclusion as to whether or not the opinion of Ms Farrelly or Professor Hayes should be accepted. That conclusion could only be reached after an opportunity for them to give evidence, perhaps after further clarification of the differences between them, and an opportunity for cross-examination to reveal the nature and extent of any ultimate disagreement. That is not a task which this Court should undertake. 31 Accordingly, this Court is faced with a number of opinions, some of which express in clear terms that the appellant was unfit to be tried. I express that view conscious of the fact that the assessments which have now been tendered were all completed since the trial. In some circumstances there may be a question as to whether or not a person who is assessed at a later point in time should be assumed to be unfit at the time that they were tried. However, the origin of the appellant's alleged unfitness has to do with his fundamental intellectual capacity and there is nothing to suggest that it may have deteriorated or indeed altered between the time of his trial and the time of the more recent assessments. 32 In those circumstances, in my opinion, this Court must conclude that there is a real difference of opinion between the experts to which I have referred leading to the conclusion that there is a possibility that the appellant's trial miscarried by reason of his unfitness. 33 In those circumstances this Court has no alternative but to uphold the appeal, quash the conviction and order a new trial. At that trial the question of his fitness to be tried will be investigated and the appropriate course taken should the conclusion be reached that he is not fit. 34 If he is found fit to be tried but on condition that his intellectual impairment is recognised during the course of the trial, it would be a matter for the trial judge to protect the process at any retrial to ensure that it is fair. Those are matters which it would not be appropriate for this Court to enter upon at this stage of the proceedings. This Court's task is to identify whether a possible miscarriage has occurred. As I have indicated the evidence before us, in my opinion, leaves no alternative but to conclude that there is such a possibility. 35 In those circumstances, the appeal should be upheld, the conviction quashed and a new trial ordered. 36 JAMES J: I agree with the judgment of the Chief Judge. 37 HISLOP J: I also agree. 38 McCLELLAN CJ at CL: Accordingly, the orders of the Court are as I have indicated. ********** 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.