Supreme Court New South Wales Medium Neutral Citation: R v Tuki (No. 2) [2013] NSWSC 196 Hearing dates: 11 March 2013 Decision date: 11 March 2013 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Fitness inquiry adjourned Catchwords: CRIMINAL LAW - accused charged with murder and other offences - found by Court to be unfit to be tried - Mental Health Review Tribunal concludes thereafter that accused fit to be tried - Court to hold fitness inquiry as soon as practicable under s.29 Mental Health (Forensic Provisions) Act 1990 - trial of co-accused imminent - whether trial of co-accused should be delayed until fitness of accused determined so that (if fit to be tried) accused can be joined to trial of co-accused - approach not practicable - trial of co-accused to proceed - fitness inquiry to proceed as soon as practicable Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Tuki [2012] NSWSC 1436 Texts Cited: --- Category: Procedural and other rulings 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: On 23 November 2012, I found the Accused, Ray Tuki, unfit to be tried on a number of serious charges before this Court, including murder: R v Tuki [2012] NSWSC 1436. That judgment set out the background to the finding made, including an earlier finding by the District Court that Mr Tuki was unfit to be tried on District Court matters, and subsequent hearings and decisions of the Mental Health Review Tribunal ("MHRT"). 2Under s.14 Mental Health (Forensic Provisions) Act 1990, a consequence of a finding of unfitness is that proceedings brought against Mr Tuki must not be continued, with Mr Tuki being referred to the MHRT in accordance with s.16 of that Act. 3Last week, the Court was provided with the findings and reasons of the MHRT dated 28 February 2013, with respect to Mr Tuki. Put shortly, the MHRT has found that Mr Tuki is fit to be tried for the District Court and Supreme Court charges. 4When the MHRT informs the Court that an accused person (who has previously been found unfit to be tried) is now fit to be tried, several provisions of the Mental Health (Forensic Provisions) Act 1990 come into play. 5Section 17 permits the Court to consider the making of an order granting bail, or ordering the detention of an accused person in a mental health facility. 6Section 29(1) requires the Court to obtain the advice of the Director of Public Prosecutions ("DPP") as to whether further proceedings will be taken against the accused person. I note that the Crown, on 7 March 2013, indicated an intention to proceed further against Mr Tuki. 7If the DPP is to proceed, s.29(1) requires the Court to hold a further inquiry as to the person's fitness as soon as practicable. 8Section 30 provides that if, after the further inquiry, the accused person is found fit to be tried, the proceedings brought against the person are to recommence or continue in accordance with the appropriate criminal procedures. 9Section 30 makes further provision in the event that the accused person is found unfit to be tried. 10The District Court charges are next before that Court on 15 April 2013. Mr Tuki is to be further examined by Dr Adam Martin, forensic psychiatrist, on 13 March 2013, for the purpose of the forthcoming s.29 fitness inquiry in the District Court. 11The trial of several co-accused of Mr Tuki, namely, John Khoury, Mohammed Karimi and Mahdi Mir, was listed to commence today, with a seven-to-eight week estimate. 12When it became known to the Court that the MHRT considered Mr Tuki fit to be tried, I raised with affected parties (including Mr Winch, counsel who had appeared for Mr Tuki at the fitness inquiry in November 2012) what steps were open to the Court in the circumstances. 13If the Court was informed of a finding of the MHRT concerning fitness some distance out from the listed trial, then the Court could have determined the fitness issue as soon as practicable (as required by s.29(1)(b)) with the view to joining Mr Tuki to the trial, if a finding of fitness was made. 14Mr Tuki is charged with some eight offences which relate to the same subject matter as the charges against Mr Khoury, Mr Karimi and Mr Mir. But for the fitness issue, the four men would be standing trial together. 15To allow the Court to consider the appropriate course, the trial of Mr Khoury, Mr Karimi and Mr Mir has been put back to this Wednesday, 13 March 2013. 16There would be considerable benefit if the trial of the four men proceeded together, with witnesses being called at that trial and with no separate trial of Mr Tuki being required. 17However, there are a number of factors which operate against that approach. 18It will be necessary for the Court to first determine the fitness of Mr Tuki to be tried. The MHRT material is available to the Court. However, Dr Martin (who examined Mr Tuki for the purpose of the earlier fitness inquiry) is to see him this Wednesday. The legal representatives for Mr Tuki should have a reasonable opportunity to prepare for the further inquiry, including obtaining evidence from Dr Martin. 19This means that the inquiry could take place on or after Thursday of this week. If the Court finds Mr Tuki fit to be tried, then, and only then, would the power exist for the Court to order the joinder of Mr Tuki's trial to that of Mr Khoury, Mr Karimi and Mr Mir. 20However, counsel for Mr Tuki has foreshadowed that time would be required to prepare for trial, including obtaining psychiatric opinion evidence concerning possible issues of mental illness and/or substantial impairment. 21If Mr Tuki gave notice of an intention to rely upon such evidence, the Crown would need an opportunity to have him psychiatrically examined for the Crown prior to trial. 22I note that counsel for Mr Khoury, Mr Karimi and Mr Mir have indicated that there is no issue of mental illness or substantial impairment to be raised at their trial. 23If the trial of the three men was deferred, pending the resolution of Mr Tuki's situation, then the trial would be placed on hold for a period of at least some weeks. 24The Crown is ready to proceed with the trial of Mr Khoury, Mr Karimi and Mr Mir, as are counsel for each of those three accused. The Crown seeks to proceed with that trial and does not submit that the trial ought be deferred pending the (possible) future joinder of the charges against Mr Tuki. 25There are potentially different issues which would be raised if Mr Tuki was joined to this trial, involving mental illness and/or substantial impairment issues, which are not otherwise issues in the trial. 26The temporal coincidence between recent developments concerning Mr Tuki and the MHRT, and the listed joint trial of the three accused, has required the Court to consider what approach ought to be taken. 27In the result, I have determined that the joint trial of the three accused ought proceed this Wednesday, and that the Court should move to determine Mr Tuki's fitness as soon as practicable, but separately from the trial. 28I direct that the fitness inquiry with respect to Mr Tuki be listed at 2.00 pm this Friday, 15 March 2013. 29I note that counsel for Mr Tuki will seek to obtain from Dr Martin information concerning his assessment with respect to the fitness of Mr Tuki. It is highly desirable that any report of Dr Martin be available at the earliest available time. 30It may be that the simplest course, if it is the opinion of Dr Martin that Mr Tuki is fit to be tried, is that Dr Martin could attend at 2.00 pm on Friday to give some short evidence. I leave that as an option which would be satisfactory to the Court, if Dr Martin was of the opinion that the Accused is fit to be tried. However, a report is the preferred option, and any such report should be served on the Crown and provided to my Associate. 31If the fitness inquiry does not proceed to a conclusion this Friday, I will determine it as soon as practicable thereafter, consistent with the obligation of the Court under the legislation. 32Bail is refused with respect to Mr Tuki. ********** 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: 04 October 2013