Supreme Court New South Wales Medium Neutral Citation: R v Tuki [2012] NSWSC 1436 Hearing dates: 23 November 2012 Decision date: 23 November 2012 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: The Accused, Ray Tuki, is unfit to be tried for the offences contained in the indictment dated 23 November 2012, a copy of which will be furnished, together with the documentary exhibits, to the Mental Health Review Tribunal. In accordance with s.14 Mental Health (Forensic Provisions) Act 1990, the Accused is referred to the Mental Health Review Tribunal. Pursuant to s.14(b)(iii) of that Act, the Accused is remanded in custody pending the determination of the Mental Health Review Tribunal under s.16 of that Act. Copies of all exhibits at this inquiry, together with a copy of the indictment, are to be furnished to the Mental Health Review Tribunal, to assist the discharge of its statutory functions under the Mental Health (Forensic Provisions) Act 1990. Catchwords: CRIMINAL LAW - accused charged with murder and other offences - inquiry into fitness to be tried - earlier finding in District Court of unfitness to be tried for different offences in that Court - finding that accused unfit to be tried for offences in Supreme Court Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Crimes Act 1900 Cases Cited: R v Presser (1958) VR 45 R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 Texts Cited: --- Category: Principal judgment Parties: Regina (Crown) Ray Tuki (Accused) Representation: Counsel: Mr K McKay (Crown) Mr P Winch (Accused) Solicitors: Director of Public Prosecutions (Crown) Courtroom Lawyers Sydney (Accused) File Number(s): 2010/223518 Publication restriction: --- Judgment 1JOHNSON J: This is an inquiry under the provisions of the Mental Health (Forensic Provisions) Act 1990 as to whether the Accused, Ray Tuki, is unfit to be tried for a number of serious offences. 2There are eight counts contained in an indictment: (a) Count 1 - that on 29 June 2010, a number of persons committed a serious indictable offence, namely the armed robbery of James Stiff, and the Accused concealed the commission of that offence without reasonable excuse (s.316(1) Crimes Act 1900). (b) Count 2 - that on 1 July 2010 at Warwick Farm, whilst armed with an offensive weapon, namely a meat cleaver, the Accused robbed Maxine Rogers of a mobile phone and a laptop computer (s.97(1) Crimes Act 1900). (c) Count 3 - that on or about 1 July 2010 at Lurnea, the Accused did murder Kesley Burgess (s.18(1)(a) Crimes Act 1900). (d) Count 4 - in the alternative to Count 3, that the Accused, between 1 and 4 July 2010 at Villawood, was an accessory after the fact to the murder of Kesley Burgess (s.349(1) Crimes Act 1900). (e) Count 5 - that on 1 July 2010 at Lurnea, the Accused, whilst armed with an offensive weapon, namely a meat cleaver, robbed Tracey Burgess of a handbag (s.97(1) Crimes Act 1900). (f) Count 6 - that on or about 3 July 2010 at Villawood, the Accused did conspire with John Khoury, Mohammed Karimi and others to murder an unknown person (s.26 Crimes Act 1900). (g) Count 7 - in the alternative to Count 6, that on 4 July 2010 at Miller, while in the company of Mohammed Karimi and other persons, the Accused possessed an offensive weapon, namely a shortened .22 calibre long rifle, with intent to commit an indictable offence, namely affray (s.33B(2) Crimes Act 1900). (h) Count 8 - that on 4 July 2010 at Miller, the Accused did possess a firearm, namely a shortened .22 calibre long rifle, without being authorised to do so by a licence or permit (s.7(1) Firearms Act 1996). 3The Accused appeared before Latham J in the Arraignments List on 3 August 2012 with respect to these charges. He was not arraigned on that occasion. The Court was informed that there was an issue as to his fitness to be tried, and an inquiry was listed to proceed before me today to determine that question. Applicable Legal Principles 4The principles to be applied on a hearing such as this are not in doubt. 5Section 12(3) Mental Health (Forensic Provisions) Act 1990 provides that the onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. The proceedings are by way of inquiry which is not to be conducted in an adversary manner: s.12(2). 6The sole question to be determined is whether I am satisfied on the balance of probabilities that the Accused is unfit to be tried for the offences alleged against him: s.6. 7This issue falls to be determined by application of what is called the Presser test. This test emerges from the decision of Smith J in R v Presser (1958) VR 45 at 48. This is the test concerning fitness to be tried to be applied in an inquiry of this type: R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at 294-295 [279]-[286]. 8The Presser test has been described in decisions of the High Court of Australia, including Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 at 245-246 and Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 at 5 [9] (footnote 2). 9In R v Presser, Smith J stated that, before a trial could proceed without unfairness or injustice, an accused person should meet certain minimum standards. Such minimum standards include the ability to understand the offence charged, the nature of the proceedings and the effect of any evidence given against the accused person. Additionally, Smith J said that an accused person should possess sufficient capacity to be able to decide whether he or she will rely upon a defence and, if so, be in a position to communicate either to the Court or counsel the facts necessary for the defence. 10In Kesavarajah v The Queen, Mason CJ, Toohey and Gaudron JJ observed, at 246, that the Court should take into account as well the potential length of the trial, and the likely ability of the accused person to remain fit to be tried for the duration of the trial itself. 11It is also relevant to take into account the nature of the charges and their potential complexity, because these issues are interrelated with the ability of an accused person to understand the charges and provide instructions concerning them. 12It is a requirement in s.11(2) Mental Health (Forensic Provisions) Act 1990 that, where an accused person is found unfit to be tried, the Court must, as part of its determination, record the relevant principles of law and the findings of fact on which the Court has relied. 13It is the principles which I have described which will be applied for the purpose of this inquiry. Evidence Adduced at the Inquiry 14The evidence placed before the Court on this inquiry is documentary in nature. That evidence is as follows: (a) report of Dr Adam Martin, psychiatrist, dated 27 July 2011 (Exhibit A); (b) report of Dr Olav Nielssen, psychiatrist, dated 1 November 2011 (Exhibit B); (c) report of Dr Andrew White, psychiatrist, dated 10 January 2012 (Exhibit C); (d) the determination of the Mental Health Review Tribunal concerning the Accused, with respect to other matters, dated 14 March 2012 (Exhibit D); (e) report of Dr Adam Martin, dated 21 March 2012 (Exhibit E); (f) a further report of Dr Adam Martin, dated 28 August 2012 (Exhibit F). (g) a document that identifies the Accused's current custodial placement as the Mental Health Unit of Long Bay Hospital (Exhibit G). (h) the Crown case statement, which sets out the nature of the allegations against the Accused with respect to the charges identified earlier in this judgment (Exhibit H). The Determination of the Mental Health Review Tribunal on 14 March 2012 15It will be apparent from what I have said that the Mental Health Review Tribunal has already played a part with respect to the Accused. The evidence reveals that, on 21 November 2011, his Honour Judge Keleman SC at the Parramatta District Court found the Accused unfit to be tried with respect to charges of attempted choke with intent to commit a serious indictable offence and assault occasioning actual bodily harm. Those offences are said to have been committed, as I understand it, in late 2009. 16As a result of the finding of his Honour Judge Keleman SC, the Mental Health Review Tribunal undertook an inquiry on 27 January 2012 and published a determination on 14 March 2012 with respect to the District Court matters. 17The Mental Health Review Tribunal determined that, on the totality the material, it was satisfied on the balance of probabilities that the Accused remained unfit for trial and was unlikely to become fit within the next 12 months. As a consequence of that finding, a special hearing is listed in the District Court on 4 March 2013 concerning the charges before that Court: s.21 Mental Health (Forensic Provisions) Act 1990. 18I observe that s.15 Mental Health (Forensic Provisions) Act 1990 provides for a presumption as to findings concerning unfitness. It is to be presumed that a person who has been found to be unfit to be tried for "an offence" continues to be unfit to be tried for "the offence" until the contrary is, on the balance of probabilities, determined to be the case. 19The finding of his Honour Judge Keleman SC, and the determination of the Mental Health Review Tribunal, apply to the offences that are before the District Court. The presumption in s.15 applies to those offences. The presumption does not extend to the different charges which are before this Court. 20Accordingly, it remains for this Court to make its own finding as to whether the Accused is fit to be tried for the Supreme Court matters. That said, the history of the Accused on the District Court charges, including the finding of his Honour Judge Keleman SC and the determination of the Mental Health Review Tribunal, constitute significant evidence before this Court at this inquiry, and assists the Court in reaching a finding in this case. The Charges Against the Accused in this Court 21The charges against the Accused involve allegations of very serious criminality over a period of days in late June 2010 and early July 2010. 22It is said that the Accused and other persons engaged in a series of home invasions involving, in one case, the murder of Kesley Burgess. 23The Crown case statement, which is in evidence, identifies a number of people who have been charged with respect to these matters. I have some familiarity with these prosecutions because a number of the persons referred to in the Crown case statement have, in fact, pleaded guilty before me to various charges, including murder (MA, Thomas Byquar, Tomasi Natuba, David Ramos and Aneterea Tamapua). In addition, there is to be a trial in the Supreme Court in March 2013 of John Khoury, Mohammed Karimi and Mahdi Mir for murder and other alleged offences. 24The charges against the Accused involve events with, on a number of counts, the Crown case being dependent upon principles of joint criminal enterprise and extended joint criminal enterprise. As I understand it, it is not the Crown case that the Accused entered the premises on each occasion when persons were robbed, injured or killed. The Crown case is that, in various ways, the Accused is criminally responsible for a number of these matters, although he did not wield a weapon. 25I mention this because the charges against the Accused are not without complexity. To comprehend the charges which he faces, and to give instructions with respect to them, is a more demanding process in this case than may occur in a more straightforward case. This is relevant to the question of fitness to be tried. It is a more demanding set of circumstances which the Accused needs to understand for the purpose of giving instructions as to plea or as to defence. 26It is not necessary, for the purpose of this judgment, to recite in any detail the nature of the charges themselves. It will be apparent from a recital of the charges, that a number of persons in different places were robbed, injured or killed. The Crown case statement, which is in evidence, provides a more elaborate explanation of the way in which the Crown puts its case against the Accused and other persons. 27It is sufficient to make the observations which I have about the complexity of the charges, because that is of particular relevance to the task which I am performing today. The Medical Evidence 28Dr Adam Martin examined the Accused on behalf of the legal representatives of the Accused. Dr Olav Nielssen examined the Accused on behalf of the Crown. 29The reports of Dr Martin have identified, in some detail, the Accused's history with respect to mental illness and disorder. It is not necessary to recite these matters in detail in this judgment. It is sufficient to note that, in Dr Martin's first report of 27 July 2011, he expressed the opinion that the Accused was probably not fit to stand trial. It should be borne in mind that the charges in relation to which Dr Martin was then expressing an opinion were different to those before the Court today. On one view of it, they are more straightforward as to the nature of the allegations against the Accused. They arose out of what was said to be a very serious but, it would seem, single incident of violence towards the Accused's then partner. 30Thereafter, Dr Nielssen, on 1 November 2011, expressed the opinion that the Accused was unfit to be tried, in particular upon the basis of his refusal or inability to respond to the charges, and what seemed to be an inability to provide reliable instructions to his legal representative about how to present his case. Again, I observe that Dr Nielssen was addressing the District Court charges, and not the present set of charges. 31His Honour Judge Keleman SC found the Accused unfit to be tried on 21 November 2011, and referred the Accused to the Mental Health Review Tribunal. 32Thereafter, Dr Andrew White, psychiatrist with Justice Health, examined the Accused at the request of the Mental Health Review Tribunal for the purpose of its then forthcoming inquiry. On 10 January 2012, Dr White reported on that examination, and indicated that he applied directly the elements of the Presser test. Dr White expressed the opinion that, on balance, the Accused was unfit to be tried for the District Court matters. Dr White's main concern was the Accused's ability to follow proceedings, and that that would impact on his ability to understand the substantial effect of evidence given against him. Dr White observed that the Accused's ability to cope with stress would lead to an issue of unfitness as outlined in Kesavarajah v The Queen. 33The Mental Health Review Tribunal then conducted an inquiry on 27 January 2012. The Tribunal was constituted by its then President, the Honourable Greg James AM QC, Dr Peter Shea, psychiatrist, and Mr John Haigh. 34In its determination of 14 March 2012, the Tribunal referred to the reports of Dr Martin, Dr Nielssen and Dr White. The Tribunal indicated that there was some confusion as to the Accused's precise charges. The Accused seemed to understand that the then relevant charges related to what was said to be an altercation with his partner, but he was of no assistance as to the other charges. The "other charges" I take to be the present charges, which were at that time before the Local Court but, since August 2012, have been before this Court. 35As I have already noted, the Tribunal concluded that the Accused was unfit to be tried, and was unlikely to become fit to be tried within the next 12 months. 36Dr Adam Martin provided a further report dated 21 March 2012, which followed an examination of the Accused at the MRRC on 7 March 2012. Once again, Dr Martin sought to apply the Presser test. It would seem that Dr Martin, at that stage, was still confining his inquiry to the matters before the District Court. However, even with that more straightforward set of charges, Dr Martin concluded that, given the Accused's responses to his questions relevant to the Presser test, it was difficult to reach any conclusion other than the Accused was probably unfit to plead or to stand trial. There had been no apparent progress in his condition and, according to the Accused's subjective account of his symptoms, in some ways he appeared to have worsened. 37Dr Martin concluded that it was highly unlikely that the Accused's level of understanding of the Court process was likely to change materially, regardless of which medication he was prescribed. 38The most recent medical evidence before the Court is the report of Dr Martin of 28 August 2012. Dr Martin examined the Accused on 23 August 2012 at the Long Bay Hospital. Dr Martin observed that the Accused had two separate sets of charges and understood, by that time, that the inquiry fixed for today was to take place in the Supreme Court. 39Accordingly, Dr Martin's examination of the Accused on 23 August 2012 was undertaken for the current set of charges as well as, indirectly, the District Court matters. 40In this report, Dr Martin concluded that the Accused appeared to have difficulty concentrating and understanding concepts, even when explained fairly basically. Dr Martin was not convinced that the Accused was then likely to be able to understand satisfactorily the legal process or to be able to make a reasoned defence, challenge evidence or instruct his defence team adequately. 41Dr Martin's impression was that the Accused was unlikely to be fit to stand trial, and his assessment was that that was unlikely to change even with ongoing antipsychotic treatment. Dr Martin formed the view that the Accused was probably of borderline intelligence only, and that this impacted upon his level of understanding of the Court process as well. Decision Concerning Fitness to be Tried 42The sole question for decision is whether the Accused is presently unfit to be tried for the Supreme Court matters. The Presser test sets out the minimum requirement for an accused person to stand trial. 43It is apparent from the medical evidence, and the determination of the Mental Health Review Tribunal, that there is a long and consistent history of identification of factors that have seen the Accused considered unfit to be tried. 44I add to that the determination of his Honour Judge Keleman SC in the District Court on 21 November 2011. In effect the medical evidence, taken with the finding of his Honour Judge Keleman SC and the determination of the Mental Health Review Tribunal, is all one way. 45The application of the Presser test has led consistently to the formation of the view that the Accused is unfit to be tried. 46As a consequence of the finding made with respect to the other charges, a special hearing is to take place in the District Court on 4 March 2013. 47Having regard to the evidence before me, I am satisfied on the balance of probabilities, that the Accused is unfit to be tried on the charges contained in the indictment in this Court, to which I have referred. It is apparent that the Accused is restricted in his capacity to communicate effectively the facts necessary for his defence, and to provide instructions with respect to the relatively complex set of charges brought against him in this Court. 48Having reached that conclusion at this inquiry, the criminal proceedings against the Accused must not be continued, and I am required to refer the Accused to the Mental Health Review Tribunal under s.14(a) Mental Health (Forensic Provisions) Act 1990. It will be for that Tribunal to determine as soon as practicable whether, on the balance of probabilities, the Accused will, during the period of 12 months after the finding of unfitness, become fit to be tried for the Supreme Court offences for the purpose of s.16(1) Mental Health (Forensic Provisions) Act 1990. Depending upon the Tribunal's determination, ss.17 or 19 of that Act may have application to the Accused. 49It is appropriate to make an order under s.14(b)(iii) of the Act remanding the Accused in custody until the determination of the Tribunal under s.16 has been given effect to. 50I make the following findings and orders: (a) I find that the Accused, Ray Tuki, is unfit to be tried for the offences contained in the indictment dated 23 November 2012, a copy of which will be furnished, together with the documentary exhibits, to the Mental Health Review Tribunal. (b) In accordance with s.14 Mental Health (Forensic Provisions) Act 1990, I refer the Accused to the Mental Health Review Tribunal. (c) Pursuant to s.14(b)(iii) of that Act, I remand the Accused in custody pending the determination of the Mental Health Review Tribunal under s.16 of that Act. (d) I direct that copies of all exhibits at this inquiry, together with a copy of the indictment, be furnished to the Mental Health Review Tribunal, to assist the discharge of its statutory functions under the Mental Health (Forensic Provisions) Act 1990. ********** Amendments 10 October 2013 - Publication restriction removed. Amended paragraphs: Coverpage 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: 10 October 2013