R v Tonga

[2021] NSWSC 1064

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Tonga [2021] NSWSC 1064

Hearing dates:

23 August 2021

Date of orders:

25 August 2021

Decision date:

25 August 2021

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. On the charge that the accused on 11 August 2019, at Eastern Creek in the State of New South Wales, did murder Juan Miguel Cervantes, the Court finds the offence proven but the accused not criminally responsible for it.

Catchwords:

CRIME – murder – defence of mental health impairment – where parties agree defence available – judge alone trial – special verdict – offence proven but accused not criminally responsible

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

R v Tonga [2020] NSWSC 1829

The King v Porter (1933) 55 CLR 182; [1933] HCA 1

Category:

Principal judgment

Parties:

Regina (Crown)
Sosiua Tonga (Accused)

Representation:

Counsel:
K McKay SC (Crown)
T D Anderson (Accused)

Solicitors:
Solicitor for the Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2019/00249227

Publication restriction:

Nil

JudgmenT

1. HER HONOUR: On 11 August 2019 the accused, Sosiua Tonga, was arrested and charged with the murder of Juan Miguel Cervantes. He was later committed for trial to this Court, with his trial fixed for 23 August 2021.

2. On 11 August 2021, with the leave of the Court, the accused filed an election pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) seeking to have his trial heard before a judge alone. The Crown agreed with the application and, consequentially, a trial by judge order pursuant to s 132(2) of that Act was made by the Court.

3. The question of the trial proceeding without a jury had previously been considered by the Court, with a similar application refused on 14 December 2020: R v Tonga [2020] NSWSC 1829. The reason for the differing order made on 11 August 2021 lies in the substantial alteration to the landscape in which criminal trials can be heard in New South Wales subsequent to the advent of the Delta Variant of the COVID-19 virus. There are now Public Health orders in force that did not apply in December 2020 and which prevent a jury of 12 convening to hear criminal trials. The reason for the further application by the accused, and the Crown’s consent to it can, no doubt, be found in that change.

4. Pursuant to the trial by judge order the accused was arraigned before me on 23 August 2021 on an indictment charging him for that he:

“On 11 August 2019, at Eastern Creek in the State of New South Wales, did murder Juan Miguel Cervantes.” 

5. He entered a plea of not guilty (on the grounds of mental illness).

The Applicable Legislative Regime

6. The accused having raised a defence that relies upon his mental state at the time of the death of the deceased, an initial question to be considered is the legislative scheme that governs that defence.

7. The Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) (“the MHCIFP Act”) commenced on 27 March 2021. It replaced the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the 1990 Act”).

8. Schedule 2 of the MHCIFP Act contains transitional and other provisions. Clause 5 of Part 2 of Schedule 2 provides for the continuing application of the 1990 Act to “proceedings for offences commenced before the commencement of Part 3 of this Act” until such time as “a determination is made as to whether a special verdict should be entered or the defence is no longer being raised”.

9. The Act does not explain what is meant by “the commencement of proceedings” in the context of a mental illness (or impairment) defence under Part 3, and there is nothing to be gleaned from the Regulations, no relevant transitional regulations having yet been made pursuant to clause 1 of Part 1 of Schedule 2.

10. The “commencement of proceedings” could mean the date of charge, if the word “proceedings” is construed broadly to encompass the whole of the criminal proceedings against the accused. It could refer to the date upon which the accused first appeared in this jurisdiction, if “proceedings” is intended to refer to the whole of the proceedings in the trial jurisdiction. If “proceedings” is considered in a narrower context, it means the present trial proceedings before this Court, which commenced with the presentation of the indictment by the Crown on 23 August 2021. I favour the latter interpretation, since that would make sense of the transitional provisions, which allow for the continuation of proceedings under the 1990 Act only until such time as the special verdict should be entered or the defence is no longer raised. That appears to be directed to any trial in which the defence was raised that had commenced before, but was not finalised by, 27 March 2021.

11. I did not understand the Crown or the accused to take a contrary view, and thus the statutory framework that the Court has applied is that of the 2020 Act.

Some Initial Legal Principles

12. Before turning to the evidence, and the defence advanced, it is appropriate to set out in summary form some important legal principles which the Court must apply.

13. This being a criminal trial, it is the Crown that carries the burden of proving the guilt of the accused for the offence of murder (or any relevant alternative), with the standard being that of proof beyond reasonable doubt. The accused has the benefit of the presumption of innocence, and no obligation to prove anything. He was not required to give evidence and no inference adverse to him may be drawn because he did not.

14. In the context of this trial, where the defence of mental health impairment has been raised at the outset, to prove the charge of murder the Crown must prove beyond reasonable doubt that (in the circumstances of this case where no question of involuntariness arises) a voluntary act of the accused caused the death of the deceased.

15. If the Court is satisfied that the physical elements of the charge of murder have been proved by the Crown beyond reasonable doubt, the Court must consider the defence of mental health impairment, without at that stage considering the question of proof of the mental elements of murder, they being, in the context of this case, that the act causing death was carried out with an intention to either kill or to cause grievous, or really serious, bodily harm.

16. The accused does not dispute that it was his voluntary act that was the direct cause of the death of Mr Cervantes and, having considered the evidence before the Court, I am satisfied beyond reasonable doubt that the accused struck Mr Cervantes to the head with a screwdriver, inflicting a fatal wound to him, from which he died.

The Evidence Concerning the Death of Mr Cervantes

17. In August 2019 the accused was living at an address in Eastern Creek with his partner, Ms Muller, their baby daughter, and Ms Muller’s three children.

18. In the days immediately preceding the death of Mr Cervantes, the accused and Ms Muller were experiencing difficulties in their relationship and there was a degree of tension between them. On 10 August 2019, the couple discussed their future, and Ms Muller observed that the accused was tearful. He told her that he “was not well again”, and Ms Muller could see that the accused was acting “wired”, “different” and “not right”.

19. During the evening of 10 August 2019, the accused seemed quiet to Ms Muller as he sat outside in a backyard shed. When Mr Cervantes called in to the Eastern Creek house sometime after 10 o’clock that evening, the accused reproached him for the noise he made, complaining to Ms Muller that Mr Cervantes was “loud”. Ms Muller went inside her house to attend to her daughter, leaving the accused and Mr Cervantes together in the shed. She returned to the shed briefly about an hour later and saw that both men were on their respective telephones, with the accused speaking to someone in the Tongan language. Ms Muller collected her own mobile telephone, which she had left in the shed, and went back into the house. The accused called to her to sit with him, but she ignored him.

20. Once in the house Ms Muller began to receive telephone calls from the accused, which she rejected. The accused then sent her a series of text and WhatsApp messages, some of which she responded to.

21. Exhibit A.6 establishes that the accused telephoned or sent text messages to Ms Muller from 12:35am on 11 August 2019. In quick succession, the accused sent the following messages, all at 12:42am:

“12:42am   I’m not well Ash

12:42am   I admit it

12:42am   I need my injection.”

22. The exchange of messages continued until 12:51am on 11 August 2019.

23. At what must have been about this time Ms Muller heard the sounds of objects being thrown and loud yelling emanating from the shed. She went to the back door and called out, although she could not see anything. She then saw the accused pulling Mr Cervantes towards the door; he was grasping Mr Cervantes’ upper clothing at about the collar area with both his hands. Mr Cervantes had hold of the accused in a similar way. Ms Muller could see that Mr Cervantes had blood on his forehead. She saw Mr Cervantes turn to her, calling repeatedly to her, “Tell Vake” – that being the accused’s Tongan name – “it’s me, Miguel”.

24. The accused asked her:

“Sunshine, do you love me, do you have my back, he is no good or do you take his side”

25. Ms Muller saw the accused, who was significantly bigger than the deceased, “ram” Mr Cervantes back into the shed. She could hear Mr Cervantes telling the accused “Vake it’s me, it’s me Miguel”, Vake please Vake please”. She then heard a scream, followed by the accused shouting for her to call an ambulance.

26. Ms Muller saw Mr Cervantes slumped down towards the back of the shed; there was blood on the side of his head. The accused was holding a screwdriver. She ran to the house and telephoned for an ambulance. She was frightened of the accused, whom she had never before seen behaving in such a way.

27. At 12:56am the accused sent a text message to a relative, saying “I just stabbed migz in the head”. He telephoned his wife, Lorna Tonga, at 12:57am, telling her:

“I’ve done something wrong. I think I’m going away for a long time. I just want to tell you that I love you and the children so much”.

28. Mrs Tonga could hear a great deal of noise in the background. She thought her husband sounded scared. She telephoned her brother, who lived a short distance away from Ms Muller’s home, and asked him and his wife to go and see the accused.

29. At 1am the accused sent a text message to his mother, telling her:

“Mum. A guy threatened my safety so I attacked him. I love and I am sorry. I asked the lord for forgiveness.”

30. The accused joined Ms Muller in the house soon after. He told her:

“I’m not going to hurt you. I just want to come inside and kiss my baby as I know I’m going to gaol”.

31. Later, when they were waiting for the arrival of the police and ambulance, the accused asked Ms Muller if she “had his back” and, on seeing her mobile telephone in her hand, whether she was recording him.

32. When police officers arrived the accused took Ms Muller in his arms and asked her, “Are you the devil, are you the devil”?

33. The attending police found the accused sitting on some steps leading into the house. He was quiet. Blood was observed on his hands and person. The accused said to Constable Bianca Peacock, “I stuffed up”. He told Senior Constables (“S/C”) Giles and Fishlock that “I was scared for my life and I had to protect myself”. To Constable Liam Hearne he said “I just had to defend myself. I feared for my life”.

34. The accused was cautioned.

35. In the shed, Mr Cervantes was found alive, although seriously injured. He was bleeding from a head wound, and there was blood at various locations in the shed. A green handled Phillips head screwdriver lay on top of a heater near to Mr Cervantes’ prone form.

36. Ambulance officers attended and administered aid to Mr Cervantes, before taking him to Westmead Hospital. At Westmead, treating doctors found a severe head injury, which was not survivable. Mr Cervantes was placed on life support.

37. At the Eastern Creek premises, the accused’s brother-in-law and his brother-in-law’s wife arrived and were permitted to speak to the accused. When the accused was asked what happened, he replied:

“I’m sorry. I’ve been trying to get out of the house for a long time, there’s demons down the back”.

38. He said, “I stuffed up”.

39. The accused was subsequently arrested and taken to Mt Druitt Police Station. On being received into custody, he told the Custody Officer that he received an injection every month for a mental health condition but had not had an injection since April or May 2019. He said he “used all types of drugs” and had last used “ice” [or methylamphetamine] at about 10 or 11 o’clock the previous night. He reported having previously attempted suicide and said that he had a diagnosis of “schizophrenia, paranoia, and hallucination”. He claimed to have “voices in his head”. He said that he thought he had been drugged and had been “given too much drug”.

40. An ambulance was called to see to the accused, with paramedics pronouncing him physically well.

41. In a conversation with the Custody Management Officer, S/C Fordyce, later on the morning of 11 August 2019, at about 8:45, the accused said that he had been in a “different state of mind” the previous day, seeing and hearing things, and feeling as if he had been drugged by something being put in his food. He said that, from about lunchtime on 10 August 2019, he had felt “moody, edgy, paranoid”. He expressed a wish to use the toilet, so that he could see if there was anything in his urine.

42. To Detective Hugh Thomas soon after, the accused said that he had been “seeing things”

43. The accused told police that he had been admitted to hospital the previous year [2018] after attempting suicide.

44. Speaking to his wife later that morning from the Police Station, the accused told her “I feared for my life”.

45. A formal interview was conducted, but the accused exercised his right to silence (a decision made on legal advice, from which no inference adverse to the accused may be drawn).

46. A blood sample was taken from him during a forensic procedure conducted about 15 hours after Mr Cervantes had been stabbed. On later analysis the sample showed the presence of Aripiprazole (an anti-psychotic medication), amphetamine, and methylamphetamine. A Forensic Toxicologist, Pieternel van Nieuwenhuijzen, who reviewed that and other data, concluded that the levels of methylamphetamine in the accused’s blood at about the time of stabbing would have been around 1.1 milligrams per litre. The level of amphetamine, present as a metabolite of methylamphetamine, would have been around 0.1 milligrams per litre. With such a high level of methylamphetamine in his blood, the accused would, in the opinion of Dr Nieuwenhuijzen, have been affected by it, likely disinhibited in his behaviour, and possibly aggressive, paranoid, and psychotic.

47. The Aripiprazole level present in the accused’s blood was below a therapeutic level, indicative of a need for further medication, and a return of active symptoms of schizophrenia.

48. At Westmead Hospital the resuscitation of Mr Cervantes ceased, and he sadly died. Dr Bernard L’Ons conducted a post-mortem examination of Mr Cervantes’ body on 14 August 2019, determining that the cause of death was a penetrating sharp force injury to the head. The wound, which displayed a stellate pattern at the entry point, went through the left side of the skull and the frontal lobes of the left and right brain, and terminated with a patterned indentation on the inner surface of the right frontal bone. There was evidence of significant bleeding to the brain, and between the brain and the skull.

49. Dr L’Ons observed a number of other injuries sustained by Mr Cervantes, including a second penetrating injury to the front of the left ear which descended to the angle of the jaw, but did not involve any vital structures. There were injuries to the left forearm and left hand which could have been defensive injuries, together with some lacerations and abrasions.

Conclusion

50. Having considered the whole of the evidence, I am satisfied beyond a reasonable doubt that, using the green handled screwdriver later found on a heater in the shed, the accused struck what must have been a very forceful blow to the left side of Mr Cervantes’ head, inflicting a fatal wound that penetrated the skull and transected the whole of the brain, terminating at the right frontal bone. The accused and Mr Cervantes were alone in the shed at the time, and Ms Muller had observed the accused dealing with him in a violent manner; there is no doubt that the accused inflicted the fatal wound. Equally, there can be no doubt as to the nature of the wound inflicted, and the weapon used. Ms Muller saw the accused holding the screwdriver in his hand immediately after she heard a scream from the shed; when it was seized by police the screwdriver was smeared with blood; and the star shaped entry wound and indented pattern observed on Mr Cervantes’ right inner skull are consistent with the structure of a Phillips head screwdriver. The evidence is that Mr Cervantes died as a direct result of the infliction of the head wound.

51. The physical elements of the offence of murder having been established beyond reasonable doubt by the Crown, the Court must consider the evidence supporting the defence of mental health impairment that is raised by the accused.

The Defence of Mental Health Impairment

52. Section 4 of the MHCIFP Act gives the meaning of “mental health impairment” for the purposes of the legislation. A person will have a mental health impairment if the person “has a temporary or ongoing disturbance of thought, mood, volition, perception, or memory” and “the disturbance would be regarded as significant for clinical diagnostic purposes”, and it “impairs the [person’s] emotional wellbeing, judgment, or behaviour”.

53. A substance use disorder or a drug induced condition is specifically excluded from the definition of mental health impairment.

54. Section 28 of the MHCIFP Act provides:

28   Defence of mental health impairment or cognitive impairment

(1)  A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—

(a)  did not know the nature and quality of the act, or

(b)  did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2)  The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.

(3)  Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.

(4)  In this Part, act includes—

(a)  an omission, and

(b)  a series of acts or omissions.

55. Under the MHCIFP Act the accused is presumed to have been mentally well at the time of the alleged offence, and it is a matter for the accused to prove the contrary proposition on the balance of probabilities. What must be established is that the accused either did not know the nature and quality of his act, or did not know that it was wrong. Section 28(1)(b) imports the expansion upon the latter of the two concepts that was first given by Dixon J in The King v Porter (1933) 55 CLR 182 at 189 - 190, that is, that the accused “could not reason about the matter with a moderate degree of sense and composure” as to the wrongness of his act, “having regard to the everyday standards of reasonable people”.

The Evidence of Mental Health Impairment

56. I have referred already to some of the evidence that is of direct relevance to the defence that has been raised.

57. In the days leading up to the death of Mr Cervantes, Ms Muller had noticed some alteration in the accused’s behaviour such that, on the evening of 10 August 2019, she thought he was “not right”. The accused himself told Ms Muller, before the fatal incident, that he was not well, and needed his injection. That is consistent with the toxicological evidence as to the low levels of Aripiprazole in the accused’s blood on 11 August 2019, too low to be therapeutic.

58. From Ms Muller’s observations of the incident between the accused and Mr Cervantes, it is open to infer that the accused did what he did because of some irrational belief as to the identity of Mr Cervantes. Ms Muller heard him repeatedly assert his identity to the accused, and he asked Ms Muller to also tell the accused who he was. There is no other evidence that would explain the attack; the two men were friendly, and Mr Cervantes did nothing to provoke an assault by the accused. The accused told his mother in a text message sent within minutes of the incident that “a guy” had “threatened [his] safety” so he had attacked him.

59. There is evidence in the information given to those police officers involved at the scene and on the accused’s arrest, by him and others, that the accused was schizophrenic and in need of medication. Some of what the accused said and did, such as his claims about demons, point to mental health impairment at that time.

60. The contemporaneous evidence of witnesses is firmly supported by the expert evidence, adduced by both the Crown and the accused, which is to the effect that the accused was mentally impaired at the time he attacked Mr Cervantes.

61. Dr Adam Martin is both a general and forensic psychiatrist. He prepared two reports, dated 2 June 2020 and 11 August 2021, at the request of the Crown, and those reports are in evidence as Exs. A.36 and A.37 respectively. Dr Martin was extensively briefed with collateral documentary material relevant to the death of Mr Cervantes.

62. In preparing his initial report, Dr Martin interviewed the accused, then 35 years of age, via audio-visual link (“AVL”) to the Metropolitan Remand and Reception Centre on 25 May 2020. Dr Martin regarded the accused as “alert and oriented to [the] circumstances of the interview, with reasonable language skills and no overt memory deficits”. He took a history from the accused, who had had a “good childhood without exposure to domestic violence and… a reasonable strict religious upbringing”. The accused was educated between Sydney and Tonga, achieving his Higher School Certificate. The accused had a solid employment history, working in warehousing and then in his own small business until 2017.

63. The accused reported that, between May 2019 and August 2019, he had not slept regularly and had used cannabis on a daily basis. He was acquainted with the deceased and told Dr Martin the two of them generally got along.

64. On the afternoon of 10 August 2019, the accused reported that he had been to the pub and subsequently had both cannabis and methylamphetamine at home. He reported thinking whilst at the pub that people were going to shoot him and that “bikies” were there. He told Dr Martin he had been having thoughts about “bikies” for a couple of days and that:

“every time I looked at someone, I thought they would stare at me, I thought they were following me, bikies”.

65. He told Dr Martin he had used “ice” just before the Mr Cervantes arrived at Ms Muller’s residence, at around 11pm. Mr Cervantes had bought some ice cream and spread the wrapper on the table. He told Dr Martin that the ice cream wrapper had a double handle and a picture of two fists and that he believed it was a message that he was going to be “beaten up”.

66. He said that he thought Mr Cervantes had told Ms Muller “the boys are going to fuck me up”. He remembered Ms Muller and Mr Cervantes were talking on the couch and thought that they were “playing on his emotions”. He reported telling the deceased to leave and got up to physically handle him out of the shed. He felt someone was going to come and “shoot him or bash him”.

67. Dr Martin noted that the accused sent Ms Muller some 32 messages between 12:37am and 12:51am, referring in one of them to “needing [his] injection”.

68. Dr Martin reported:

“[The accused] thought Mr Cervantes made gestures of sign language as if he were holding a gun and then pointed an ice pipe at him which he thought was a sign that he was in danger. He said that he started to text Astrid to come back outside and thought that Mr Cervantes was getting ready to shoot him, and that Mr Cervantes showed him a picture through Facebook with a picture of a block and an emoji of a rat being shot. The accused said that he thought that he was then the rat and that he attacked Mr Cervantes with a screwdriver. I asked him why he had stabbed Mr Cervantes and he said “I thought he was going to shoot me.” I asked him why he had not gone to the police before with these concerns and he said “I don’t know”. When asked whether he knew what he was doing was wrong he said “try to protect myself, that I was doing the right thing”. He said that Astrid had come running outside and he told her to call an ambulance and the police subsequently arrested him outside the front of the property.”

69. Dr Martin observed that the deceased’s attempts to persuade the accused of his identity – yelling to Ms Muller “tell Vake it’s me, it’s me, Miguel” - was potentially consistent with the accused:

“experiencing misidentification symptoms, which is known to be a very dangerous psychotic phenomena where a person identifies another person as an imposter, and this is known to be linked to violence”.

70. Information as to the accused’s state of mind after the incident, such as his conversation with his wife in which he said “I’ve done something wrong” and “I think I’m going away for a long time”, pointed to his knowledge of legal consequences.

71. Following his arrest, the accused was accommodated in a mental health screening unit in prison and prescribed anti-psychotic medication. He was “scared” and “shocked” and reported that he had been “hearing sounds of pokie machines ringing” for a couple of days. Dr Martin noted that the accused thought people were following him and that he “was getting messages from music, from the radio – like someone going to harm me – since 2018”. The accused told Dr Martin he thought that the food and drinks at the pub he visited on 10 August 2019 were poisoned. He reported feeling safer in gaol because he was getting his injections and sleeping in his own locked cell.

72. The doctor recounted the accused’s psychiatric history, commencing with a diagnosis of schizophrenia made in September 2018. At that time the accused was admitted to Cumberland Hospital Mental Health Unit for approximately three weeks, following an apparent suicide attempt. When asked why he was admitted to hospital, the accused told Dr Martin he thought:

“people were following me, my food being poisoned, people listening through mobile phones and speakers, I thought there was a tracker on me”.

73. Notes from Cumberland Hospital recorded that the accused was treated in seclusion as an involuntary patient under the Mental Health Act 2007 (NSW) following an overdose. The accused reported having taken 35 Panadol tablets as he “would rather end his own life rather than have bikies shoot him in the head”. He was prescribed anti-psychotic medication.

74. A review by the Mental Health Review Tribunal (“MHRT”) on 11 September 2018 found:

“[The accused] was more forthcoming and revealed strong themes of paranoia amounting to delusional persecution and reference. He described wronged [sic] people following him everywhere including in his house and in public.

…

He misinterprets seemingly neutral remarks from people. For example, he gave his car for car wash and the guy after cleaning, handed him over the keys and said ‘good luck’ which meant that someone may have interfered with his car and he is in danger”.

75. Dr Martin considered that the behaviour noted by the MHRT was consistent with the accused exhibiting paranoid psychosis.

76. The discharge letter from Cumberland Hospital stated the accused had made [baseless] accusations of his wife having multiple affairs and had been violent in this context. He had subsequently held paranoid beliefs about people harming him or his family which led to distress and an apparent suicide attempt. The medical notes suggested the accused told his wife to “take the children out of Sydney and to get new identities as the mafia could harm them”. Dr Martin observed that this was consistent with “enduring severe paranoia”.

77. Although the accused was prescribed anti-psychotic medication during his admission to Cumberland Hospital in 2018 and thereafter, he had not taken it for some months before August 2019.

78. Upon admission to custody following the stabbing of Mr Cervantes, Justice Health medical records note that the accused was:

“thought disordered, placed on RIT [Risk Intervention Team] due to increased agitation and possible harm to others, and expressed referential delusions and auditory hallucinations from people and birds, with systematised delusions involving bikie gangs, the victim of his alleged offence being “one of their pawns” and descriptions of morbid jealousy, with a diagnosis at the time of relapse of schizophrenia due to non-compliance [of anti-psychotic medication] and co-morbid substance abuse [methamphetamine].”

79. When he was assessed on 22 August 2019 by Dr Hannon, psychiatrist, the accused was regarded as incongruent in his behaviour, with:

“intermittent inappropriate smiling, likely responding to internal stimuli, delusions and auditory hallucinations, and the clinical impression is of schizophrenia which has been untreated for three months.”

80. A second Justice Health Forensic Psychiatrist, Dr Tuan Nguy, formed the clinical impression that “The accused presents with partially treated schizophrenia on documented history of schizophrenia with lengthy admissions since 2018, illicit drug use and family history of schizophrenia.”

81. As at March 2020 the accused continued to report auditory hallucinations which Dr Martin opined was potentially consistent with schizophrenia. His statements to clinicians – that the deceased was going to shoot him, that he believed Ms Muller was a demon, and that a bikie gang were after him – were all consistent with his narrative to Dr Martin.

82. In the community the accused was prescribed two common anti-psychotic medications, Abilify [or Aripiprazole] and Olanzapine. That treatment resumed on admission to custody.

83. It is Dr Martin’s opinion that the accused suffers from schizophrenia “on a background of substance use disorder [methamphetamine, cannabis, alcohol]”, and that it is “reasonable to suppose that he was psychotic and paranoid at the time” of the incident leading to Mr Cervantes’ death. Certainly, the evidence of the accused’s presentation and treatment in custody is demonstrative of the opinions of clinicians treating the accused that he “has an enduring major mental illness”, and Dr Martin has concluded that:

“The accused had a mental impairment at the time of the alleged offending. The accused has schizophrenia, which is considered a major mental illness characterised by a predisposition to psychosis.”

84. Further:

“it is not implausible that [the accused] was afraid and paranoid of Mr Cervantes while in an intoxicated state on a background of likely underlying and persistent persecutory beliefs. In my view, the most likely explanation for the alleged offending is that it occurred directly as a result of paranoid beliefs about Mr Cervantes. The alleged behaviour apparently occurred suddenly and statements to the effect of Mr Cervantes apparently saying “it’s me” […] are potentially consistent with [the accused] misidentifying him in some way in a paranoid manner.”

85. Dr Martin noted that the accused’s mental state was likely to have been “highly distorted in the context of psychosis and paranoid delusions”, resulting in genuine fear and the perceived need to defend himself. He observed that people with schizophrenia can be prone to violence through a perceived if unfounded belief in a need for self-defence. In that context, Dr Martin is of the view that the accused did not know that his act was wrong at the time of its commission.

86. The evidence of Dr Richard Furst is entirely consistent with that of Dr Martin. Dr Furst is a forensic psychiatrist and he assessed the accused at the request of his legal representatives, seeing him (via AVL) on 22 January 2020. The doctor’s reports of 25 April 2020 and 22 May 2021 are in evidence as Exs. 1 and 2 respectively. Like Dr Martin, Dr Furst was comprehensively briefed with relevant material, including witness statements and the accused’s health records.

87. Dr Furst took a history from the accused that was broadly consistent with the history obtained by Dr Martin. Of his mental state the accused reported his failure, in the context of managing family difficulties and the use of methylamphetamine, to take his medication over a number of months leading up to August 2019. By the time of Mr Cervantes’ visit the accused was highly paranoid and, when subject to that paranoia, he came to believe that Mr Cervantes posed a lethal threat to him. He told Dr Furst that he “snapped”, picked up a screwdriver and attacked Miguel.

88. Dr Furst noted that the accounts of witnesses indicate that the accused was not mentally well on 10 and 11 August 2019. On those accounts he demonstrated irrational thought processes and actions, consistent with his past presentation when psychotic the previous year, when he showed evidence of delusions of reference and delusions of persecution, with persistent paranoid thinking.

89. By reference to Justice Health records Dr Furst observed that it took many months and consistent treatment with anti-psychotic medication for the accused’s condition to improve. During these months the accused was consistently assessed as suffering from auditory hallucinations, and delusions of reference. He complained that there were demons in the television shortly after entering custody; he reported messages from “bikies”; and heard voices from birds; he reported that bikie gangs had been following him and that he had “killed one of their pawns”. A diagnosis of schizophrenia was made by clinicians who saw the accused in custody.

90. That is a diagnosis with which Dr Furst agrees. He observed that the accused had a “persistent history of delusional ideation” for about 4 years “prior to the onset of more florid, persecutory and self-referential delusions in 2018”. Whilst Dr Furst is of the view that the accused’s illicit drug use exacerbated his paranoid thinking and made him mentally unstable, the accused’s symptoms both pre-dated the commencement of his use of methylamphetamines, and persisted well after he ceased to have access to illicit drugs. The doctor’s diagnosis is thus one of schizophrenia, as opposed to a drug-induced psychosis.

91. Schizophrenia is, Dr Furst told the Court in his 2020 report, a:

“chronic and severe mental disorder […] characterised by distortions in thinking, perceptions, emotions, language, sense of self and behaviour. Common symptoms […] include hallucinations (hearing voices or seeing things that are not there), delusions (fixed, false beliefs), mood disturbance, behavioural disturbance, motor abnormalities, negative symptoms and cognitive deficits.

92. The disorder is “frequently associated with considerable disability and impairment”.

93. On the basis of the information available to Dr Furst, he concluded that:

“[The accused’s] alleged offence in relation to killing Juan Miguel Cervantes on 11/8/19 at Eastern Creek appears to have been driven by his poorly controlled schizophrenic illness, exacerbated by non-compliance with medication and drug use at the time, which [led] to Mr Tonga believing [the deceased] was about to kill him (shoot him) and that he needed to act in self-defence. Accordingly, I am of the opinion Mr Tonga was unable to reason about the wrongfulness of his alleged actions according to the standards of ordinary people […].”

94. Putting that into the language of the MHCIFP Act in his 2021 report, Dr Furst noted that he considers the accused to have been suffering from a mental health impairment at the relevant time, that being schizophrenia; and that, whilst he knew the nature and quality of his act, he did not know that it was wrong, because of the paranoid delusions that affected his thinking and reasoning at the material time.

Legal Considerations Relevant to the Defence

95. Before turning to the law relevant to the defence of mental impairment, there is a preliminary issue to be considered that arises from an apparent tension between a trial by judge order pursuant to s 132(2) of the Criminal Procedure Act, and the operation of s 31 of the MHCIFP Act, the latter being enlivened in these proceedings because the accused and the Crown agree that the Court should return the special verdict provided by ss 30 and 31 of that Act.

96. Section 133 of the Criminal Procedure Act gives a judge trying criminal proceedings without a jury all of the powers that a jury would ordinarily exercise, whilst also imposing particular responsibilities or burdens on that judge as the tribunal of law. Once a trial by judge order has been made, ordinarily, the judge exercises the functions of both tribunal of fact and tribunal of law, with the trial proceeding in the usual course.

97. Section 31 of the MHCIFP Act provides for the court to enter a special verdict in certain circumstances, at any time in the proceedings. It is in these terms:

31   Special verdict where defendant and prosecutor agree on impairment

The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if—

(a)  the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and

(b)  the defendant is represented by an Australian legal practitioner, and

(c)  the court, after considering that evidence, is satisfied that the defence is so established.

98. The tension I perceive between the two provisions is that, a trial by judge order having been made, the Court is obliged to comply with s 133 of the Criminal Procedure Act, and formally record all of the principles of law applied, and each of the factual findings relied upon in reaching the verdict, paying heed to all of the warnings that a jury would be given had it been empanelled. Section 31 of the MHCIFP Act permits the trial judge to enter a special verdict at any stage in the proceedings, as long as those things in ss (a), (b) and (c) are satisfied. That would suggest that, if the Court takes that course, and enters a special verdict pursuant to s 31, it would not be necessary to formally record findings of fact, and all relevant principles of law and warnings that the tribunal of fact would apply. The consequences of that would include, for example, the obviation of the need to explain those matters referred to in s 29 of the MHCIFP Act.

99. Having considered the interplay between the two provisions, in my opinion it is open to me at this stage to proceed pursuant to s 31 of the MHCIFP Act given that, although the Court is exercising the powers and functions of the tribunal of fact, the Court retains the powers and functions of the tribunal of law, one of which is the function provided by s 31.

100. Accordingly, although I am well aware of those matters in s 29 of the MHCIFP Act, and of the legal principles that apply to the determination of a matter such as this, I do not propose to consider them further for present purposes.

Is the Defence Established?

101. Having considered all of the evidence placed before the Court, and noting that the Crown and accused, who is represented by counsel and a solicitor, are of the view that the defence of mental health impairment is established, I am satisfied that the defence of mental health impairment is established, and the special verdict should be returned: s 31 MHCIFP Act.

102. The accused’s history of itself suggests that he has an enduring schizophrenic illness which has typically manifested with paranoid and persecutory delusions in past years. He has over a number of years expressed the belief that “bikies” or the mafia are pursuing him and intend him or his family or both serious harm.

103. His conduct on 10 August 2019 was noted by Ms Muller to be unusual, and the accused had said that he felt unwell and needed his injection, that being an injectable anti-psychotic. The level of Aripiprazole in his blood was too low to have therapeutic effect, on the expert toxicological evidence, evidence which I accept.

104. Mr Cervantes’ pleas to Ms Muller and to the accused about his identity is itself strong evidence that the accused had expressed to him some delusional belief about who he perceived Mr Cervantes to be. It is likely that the accused thought that he was “a pawn” of bikies sent to kill him, as he said to clinicians and others on receipt into custody.

105. I give considerable weight to the opinions of Dr Martin and Dr Furst, both highly regarded forensic psychiatrists, and experts in their field. Each was comprehensively briefed with material going to the accused’s psychiatric history, his circumstances preceding his attack upon Mr Cervantes, and witness accounts of relevant events; and each additionally made his own forensic psychiatric assessment of the accused. There was no challenge to the opinions and evidence of either doctor, and there is no good reason for the Court not to accept the evidence contained in the reports.

106. It is clear that the accused’s failure to continue with prescribed medication, and his use of illicit drugs, particularly methylamphetamine, dramatically worsened his condition, and almost certainly contributed to his mental state on 11 August 2019, but that does not diminish the significance of the serious and enduring nature of his underlying schizophrenia, and the profound impact it had on his capacity to accurately perceive events around him and cogently reason about his circumstances.

107. The accused’s condition has been and remains a debilitating one; it has required aggressive treatment with anti-psychotic drugs, treatment which continues. There can be no doubt that the schizophrenia from which he suffered on 11 August 2019, and from which he still suffers, is an ongoing disturbance of – at least – thought, mood and perception, which is of clinical significance diagnostically, and which impaired and impairs his judgment and behaviour, thus meeting the s 4 definition of a mental health impairment.

108. I am satisfied that, although the accused knew the nature and quality of his act – suggested by his immediate call for an ambulance, and his acceptance that he would “go away for a long time”, he did not know that his act was wrong. His capacity to reason about the wrongfulness of his act was impaired such that he was precluded from reasoning with a moderate degree of sense and composure. The defence is thus made out.

Verdict

109. On the charge that the accused on 11 August 2019, at Eastern Creek in the State of New South Wales, did murder Juan Miguel Cervantes, the Court finds the offence proven but the accused not criminally responsible for it.

110. The verdict that will be entered on the indictment of 18 August 2021 is “act proven but not criminally responsible”.

**********

Amendments

25 August 2021 - Amendment to Counsel under "Representation" on Cover sheet.

Typographical amendment at [95].

Decision last updated: 25 August 2021