R v Tuigamala [2007] NSWSC 493

New South Wales Supreme Court

CITATION : R v Tuigamala [2007] NSWSC 493

HEARING DATE(S) : 7-10 May, 14 May 2007

JUDGMENT DATE : 15 May 2007

JURISDICTION : Common Law Division Criminal List

JUDGMENT OF : Studdert J

DECISION : (1) I find the accused unfit to be tried for the crime charged. (2) I refer the accused to the Mental Health Review Tribunal pursuant to s 14(a) of the Mental Health Criminal Procedure Act 1990. (3) Pending the determination of the Tribunal under s 16 of that Act, I adjourn the proceedings on the indictment presented before me. (4) I remand the accused in custody pending the determination of the Tribunal and subsequent order of this court.

LEGISLATION CITED : Mental Health (Criminal Procedure) Act

CASES CITED : R v Drummond (unreported, NSWCCA, 27 May 1994) R v Presser (1958) VR 45

PARTIES : Regina v David Tuigamala

FILE NUMBER(S) : SC 2004/37

COUNSEL : K. McKay (Crown) M. Ierace SC (Accused)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

STUDDERT J

Tuesday 15 May 2007

2004/37 REGINA v DAVID TUIGAMALA

JUDGMENT (Re: fitness to plead) 1 HIS HONOUR: The issue has arisen as to whether or not David Tuigamala is fit to be tried for the offence of murder, an offence charged on an indictment presented in this Court. The question of the accused's unfitness to be tried is to be determined on the balance of probabilities: Mental Health (Criminal Procedure) Act 1990, s 6. 2 Proceedings in relation to the offence charged were commenced before 1 January 2006 and there was an earlier trial before Wood CJ at CL and jury that commenced on 1 December 2004, and the accused gave evidence. Following that trial the jury found the accused guilty of murder and the former Chief Judge sentenced the accused to a non parole period of twenty years with a total term of imprisonment of twenty-six years. 3 There was an appeal to the Court of Criminal Appeal, the sole ground of appeal being expressed as follows: "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." 4 The appeal was successful, the conviction was quashed and a new trial was ordered. 5 Having reviewed evidence of psychologists and psychiatrists then available, McClellan CJ at CL, in expressing the reasons for the decision of the Court of Criminal Appeal, said: "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." 6 Because the proceedings were commenced before 1 January 2006, this present fitness inquiry should have been held with a jury unless the accused made a judge alone election: ss 11 and 11A of the Act as it previously provided. However, the accused has elected to have the question of his unfitness to be tried determined by a judge sitting alone, and the Director of Public Prosecutions has consented to that election. Hence the proceedings before me. 7 The offence charged was allegedly committed by the accused at the Club Hotel in Campbelltown at 5.00 am on 6 September 2003. The accused had been drinking at the hotel with companions and it is alleged that he struck the deceased with a blow to the face, causing the deceased to fall to the floor. It is further alleged that the accused then kicked the head of the deceased, and the prosecution case is that the kick caused the death of the deceased. 8 On the evidence before me, it would not seem that the accused denies having punched and kicked the deceased. At the earlier trial, there was an issue of provocation, and there was also an issue as to whether or not the necessary intent for the crime of murder had been established. Those same issues are likely to arise if I find the accused is now fit to stand trial. 9 The accused was interviewed by police at the Campbelltown Police Station on 7 September 2003 and there was, indeed, a lengthy electronically recorded record of interview: Exhibit H. I have seen and listened to the interview as recorded. Part of it was recorded only on audio tape: Exhibit G. 10 On 8 September 2003 the accused attended the Club Hotel with police officers on a walkthrough and I have seen and heard the recording of that walkthrough. 11 The Crown also tendered the video and transcript in relation to a police interview with the accused on 31 March 2000 when the accused was interviewed concerning an unrelated matter involving the assault of a police officer: Exhibits K and L. 12 The accused's evidence at his earlier trial was tendered: Exhibit J. The other evidence presented at this trial has been evidence from expert witnesses. Two psychiatrists were called, Dr Wong and Dr Westmore. In addition, Dr Pulman and Associate Professor Hayes have given evidence following their psychological assessments of the accused. 13 I shall refer to their evidence presently, but I remind myself as to the issues to be addressed in order to determine whether the accused is fit to stand trial. These issues are well settled following the much cited decision of Smith J in R v Presser (1958) VR 45 at 48. Smith J there identified the minimum standards that an accused person must measure up to before a trial can be held. The requirements are these: