R v James Va'a Tui

[2017] NSWSC 1366

Supreme Court

New South Wales

• Amendment notes

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.”

4. 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.

5. 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)).

6. The two psychiatrists who assessed the accused are clearly of the view that the Defendant is unfit to be tried.

Dr Adams

7. Dr Adams observed, in the opening paragraph of his report under the heading “Clinical Assessment”:

“From the outset of my assessment it was evident that Mr Tui was experiencing severe symptoms of mental illness, which impacted upon his ability to provide a coherent account.” (p 2)

8. Dr Adams also observed during his assessment that Mr Tui was clearly experiencing symptoms of psychosis:

“Mr Tui spontaneously remarked, 'They are watching in my brain for some reason', and he referred to a computer and a ‘microchip’ being placed in his 'eyes and my brain and it's everywhere'. I asked him who would placed this in his body [sic], and he reported his concern that ‘God’ had placed microchips within his body, and in some way was controlling him. He remarked, 'This is a serious matter, I’m talking to you seriously, it's beautiful'.”

9. Under the heading Mental State Examination, Dr Adams observed the following:

“Mr Tui presented as reasonably kempt in terms of his attire and grooming, dressed in prison greens. He had a goatee beard, his hair cropped on the sides, and swept back on top. In my view he engaged in the assessment process as well as his mental state allowed. He did not manifest hostility or aggression. At times he appeared perplexed, and I would question the possibility of continuing auditory hallucinations. His facial expressions were unreactive, in between bouts of distress…” (p 6)

10. And:

“He manifested a severe degree of thought disorder, and on several occasions his account was impossible to follow. He endured delusional beliefs of several different kinds, including persecutory, referential, and thought interference delusions. He described ongoing auditory hallucinations...” (p 6)

11. Dr Adams concluded that it was evident from reviewing the Community Mental Health Record that the accused had a longstanding diagnosis of schizophrenia, and his clinical presentation at the time of the assessment was consistent with that diagnosis.

12. On the question of fitness to stand trial, Dr Adams concluded as follows:

“I believe Mr Tui's active symptoms of schizophrenia would significantly impair his capacity to follow legal proceedings in a general sense, instruct his legal representative, and understand the substantial effect of the evidence given against him.

Therefore, on balance I do not believe that Mr Tui satisfied the Presser minimum standards at the time of my assessment, and would most likely be found unfit to stand trial.”

13. On the question of any potential improvement, Dr Adams said:

“At this stage it is difficult to anticipate whether Mr Tui's mental health will improve significantly in the coming twelve-month period, such that his capacity to satisfy the Presser minimum standards will significantly improve. I would be able to offer a more informed opinion if the Justice Health medical record is provided....” (p 8)

Dr Martin

14. Dr Martin, who was retained on behalf of the Crown, had the benefit of a review of the Justice Health records. In his report of 24 August 2017 he describes the accused as:

"…quite thought disordered and lacking coherence, and he described auditory hallucinations and paranoid ideation. His initial presentation was consistent with psychosis and I formed the impression that some of the historythat he gave might not be reliable.” (p 2)

15. After attempting to undertake a psychiatric history from the accused, Dr Martin carried out a Mental State Examination in respect of which he noted the following:

“In thought content, delusional themes of a bizarre nature around having a microchip inserted, thought interference, and beliefs about ghosts persecuting him were spontaneously expressed in a fairly disinhibited manner, often without prompting. He thought the television communicated with him, consistent with ideas of reference as commonly seen in psychosis.

The thought content was expressed in a thought disordered manner where he lacked coherence and logic. He was tangential, going off topic, and some derailments were noted when speaking.

He reported auditory hallucinations and he appeared distractible and pre-occupied, potentially consistent with experience of hallucinations.” (p 5)

16. Dr Martin observed that hospital discharge summaries associated with the accused indicated that there had been a Clozapine prescription back to 1988, and that various records regarding the accused's psychiatric health indicated a long history of treatment resistant schizophrenia.

17. Recent Justice Health medical records included a Schedule document prepared by a Dr White (Psychiatry Career Medical Officer) dated 22 July 2016 noting that the accused was then presenting as “grossly thought disordered, agitated, aggressive and disorganised”.

18. More recent Justice Health medical notes documented an admission to the Long Bay Hospital under the care of psychiatrist Dr Farrar, and a document in April 2017 noted a presentation of ongoing psychosis, delusions, thought disorder and perceptional abnormalities.

19. Dr Martin concluded that the history that Dr Adams had obtained in January 2017, together with the Mental State Examination, and findings around fitness, were very similar to his own and on the question of fitness, Dr Martin concluded as follows:

“…Mr Tui has an extensively documented history of treatment-resistant schizophrenia complicated by substance misuse with a lengthy history of anti-social behaviour and previous time in custody. He has been treated by community mental health teams and scheduled as an involuntary patient to inpatient mental health units because of psychosis. He has been a Forensic Patient and had treatment within the mental health units of the forensic system for schizophrenia.

Schizophrenia is considered a serious mental illness characterised by experience of psychosis (being out of touch with reality, manifested by delusions, thought disorder, hallucinations, disorganised behaviour, communication difficulties, cognitive problems and poor insight, and by definition is associated with significant disability). Schizophrenia is frequently associated with substance misuse.” (pp 8-9)

20. Dr Martin concluded that:

“Clinically, I am in agreement with the findings of Dr Adams.

In terms of fitness issues, My Tui’s responses around the Presser Criteria will be noted above.

In my view, Mr Tui will have very limited capacity to participate meaningfully in a trial as a result of being thought disordered, hallucinated, and delusional. He has an understanding of his charges, but can only communicate a very limited understanding of potential pleas available to him in a concrete manner, and I was not satisfied that he could register and recall information in adequate detail. His ability to follow proceedings will be compromised. His ability to register and consider legal advice will be very limited. His ability to challenge evidence will be significantly limited owing to his disordered mental state. He is likely to have significant difficulty in being able to concentrate and would probably be distracted for instance by hallucinations and because of cognitive difficulties in the context of chronic schizophrenia. His cognitive issues have probably been exacerbated over the years by significant alcohol abuse.

Taking into account the above, in my view, it is likely that the court would find him unfit to stand trial currently. Given that his illness has been treatment resistant and that he has only had a limited improvement with Clozapine in the past documented, I think it is more likely than not that he would not become fit to stand trial within twelve months.” (p 9)

21. The psychiatric reports clearly indicate that the accused fails to meet the minimum requirements of Presser, and that he is currently unfit to be tried for the offence of murder and likely to remain so for at least 12 months. Accordingly, I am of the view that the orders sought should be granted as follows:

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.

4. I direct the Supreme Court Registry to provide the following documentation to the Tribunal:

1. a copy of these findings;

2. a copy of any orders made for the detention;

3. a transcript of these proceedings; and

4. a copy of the Crown papers tendered at this inquiry, which include a copy of the two psychiatric reports tendered to this Court during these proceedings as well as the Crown Case Statement.

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Amendments

18 October 2017 - Typographical error in file number: "2016.215503" changed to "2016/215503".

Decision last updated: 18 October 2017