R v James Va’a Tui [2017] NSWSC 1366

Supreme Court New South Wales

Medium Neutral Citation: R v James Va'a Tui [2017] NSWSC 1366 Hearing dates: 22 September 2017 Date of orders: 22 September 2017 Decision date: 22 September 2017 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The accused James Va'a Tui is unfit to be tried for the offence of the murder of Faatalatala Faalava on 16 July 2016.

(2) In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal.

(3) Pursuant to s 14(b)(iii) of that Act, I remand the accused in custody pending the determination of the Mental Health Review Tribunal's decision under s 16 of that Act. Catchwords: CRIME – accused charged with murder – hearing to determine fitness to be tried – unanimous medical opinion – accused unfit to be tried Legislation Cited: Mental Health (Forensics Provisions) Act 1990 (NSW) Pt 2, ss 14, 16 Cases Cited: Kesavarajah v R (1994) 181 CLR 230 Ngatayi v R (1980) 147 CLR 1 R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina (Crown) James Va'a Tui (Defendant) Representation: Counsel: M Cunneen SC (Crown) C Loukas SC; B Dean (Defendant)

Solicitors: Crown Solicitor (Crown) Legal Aid (Defendant) File Number(s): 2016/215503 Publication restriction: Nil

Judgment 1. The accused James Va'a Tui is charged with the murder of Faatalatala Faalava at Shalvey on 16 July 2016. A trial date has not yet been fixed, and a question has been raised as to the accused's fitness to be tried for the offence. 2. This is an inquiry as to whether or not he is unfit to be tried. The provisions of Part 2 of the Mental Health (Forensics Provisions) Act 1990 ('the Act') apply. I have been provided with the benefit of written submissions on behalf of both the Crown and the accused. The question of whether a person is fit to be tried is determined in accordance with the well-known criteria set out in R v Presser [1958] VR 45 at 48, as approved in Ngatayi v R (1980) 147 CLR 1 and Kesavarajah v R (1994) 181 CLR 230. 3. The principles to be applied are set out in Presser by Smith J as follows: "[An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 1. Tendered without objection are two reports authored by forensic psychiatrists. The first, Dr Jonathan Adams dated 6 February 2017 related to an assessment of the accused he carried out on 30 January 2017. The second, Dr Adam Martin is dated 24 August 2017 and related to an assessment he conducted of the accused on 3 August 2017. Dr Martin also carried out an analysis of the brief of evidence and the medical records of the accused, including recent records from Justice Health. 2. As is clear in the written submissions provided for both the Crown and the accused, there is common ground that the accused fails to meet the minimum requirements of Presser and is currently unfit to be tried for the offence of murder. This issue is to be determined on the balance of probabilities (s 6) and there is no onus cast on either party in that respect (s 12(3)). The proceedings are by way of inquiry not to be conducted in an adversarial manner (s 12(2)). 3. The two psychiatrists who assessed the accused are clearly of the view that the Defendant is unfit to be tried.