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R v Tonga

R v Tonga

Case [2021] NSWSC 1064 25 August 2021

Criminal Liability

Mens Rea & Intention

Defence of Mental Health Impairment

Criminal Law

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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

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.
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.
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.
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.”

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

The Applicable Legislative Regime

The accused having raised a defence that relies upon his mental state at the time of the death of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tonga

Details

AGLC: R v Tonga [2021] NSWSC 1064
Case: [2021] NSWSC 1064
Decision Date: 25 August 2021

CaseChat Overview and Summary

The case of R v Tonga was heard in the Supreme Court of Queensland, where the defendant was charged with murder. The primary issue before the court was whether the accused, who was suffering from a mental health impairment at the time of the offence, could be held criminally responsible for the act of murder. Both parties in the case agreed that the defence of mental health impairment was available to the accused. The trial proceeded as a judge alone trial with a special verdict, focusing on whether the offence had been committed and whether the accused was criminally responsible.

The court was required to determine whether the accused, who had a documented history of mental health issues, was unable to understand the nature and quality of the act or to know that it was wrong at the time of the offence. This required a thorough examination of the evidence regarding the accused's mental state and the circumstances of the incident. The court considered medical evidence, expert testimony, and the accused's behaviour both before and after the incident. The central legal issue was whether the accused's mental impairment was so severe that it negated the mens rea required for the offence of murder.

After considering all the evidence, the court concluded that while the accused had indeed committed the act of murder, he was not criminally responsible due to his mental health impairment at the time of the offence. The court found that the accused lacked the capacity to understand the nature and quality of his act or to appreciate that it was wrong. Consequently, the special verdict determined that the accused was not criminally responsible for the offence of murder. The judge, therefore, acquitted the accused on the basis of the special verdict, reflecting the court's recognition of the interplay between criminal responsibility and mental health.

Orders