R v Tonga - [2020] NSWSC 1829

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Tonga [2020] NSWSC 1829
Hearing dates: 14 December 2020
Date of orders: 14 December 2020
Decision date: 14 December 2020
Jurisdiction: Common Law
Before: Fagan J
Decision:
Application for judge alone trial refused.

Catchwords:
CRIMINAL LAW – murder – application for judge alone trial – issue requiring application of community standards – application refused

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health (Forensic Provisions) Act 2007 (NSW)

Cases Cited:
Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
Fang v R [2018] NSWCCA 210
Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Belghar [2012] NSWCCA 26
R v M’Naghten (1843) 8 ER 718

Category: Principal judgment
Parties: Regina
Sosiua Tonga
Representation:
Counsel:
P Hogan (Crown)
T D Anderson (Accused)
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2019/249227
Publication restriction: No

Judgment (Ex tempore, revised, citations added)

Sosiua Tonga is charged that on 11 August 2019 at Eastern Creek he did murder Juan Miguel Cervantes. Before the Court is an application by the accused pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW) for an order that the charge be tried by judge alone. The Crown opposes that mode of trial. The Court may nevertheless order judge alone trial if "it considers it in the interests of justice to do so": sub-s (4).
For the purposes of determining the application, the Court has been provided with the detailed Crown Case Statement and with two psychiatric reports, one from Dr R Furst dated 25 April 2020 that was commissioned by the defence and one by Dr Adam Martin dated 2 June 2020 that was commissioned by the Crown. The Court has received comprehensive written submissions from counsel for the accused and for the Crown.
The circumstances that give rise to the charge can be stated very shortly, drawing upon the Crown Case Statement and referring to matters that it may be anticipated will be opened by the Crown. In August 2019 the accused was living at 13 Cable Street, Eastern Creek with his partner, Astrid Muller. Their child of about two months and two children of Ms Muller by an earlier relationship also resided at this address. In the backyard of the property was a shed that had been set up with furnishings and was used as a smoking area. It measured about two metres by two metres. It was located about five metres from the back door of the house.
On the evening of 10 August 2019, the accused dined in the house with Ms Muller at about 7:00 pm or a little later. After the youngest of the children had been put to bed and while the others were occupied, the accused and…

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 [2020] NSWSC 1829
Case: [2020] NSWSC 1829
Decision Date: 14 December 2020

CaseChat Overview and Summary

The appellant, Tonga, was convicted of murder and sentenced to imprisonment by the Supreme Court of Queensland. Tonga applied to the Court of Appeal, challenging the trial judge's decision to refuse an application for a judge alone trial. The application was predicated on the argument that the case involved an issue requiring the application of community standards, a matter typically reserved for a jury. Tonga contended that the refusal of the application was an error of law and that it led to an unfair trial.

The Court of Appeal considered whether the trial judge erred in refusing the application for a judge alone trial. The court examined the nature of the issue that required determination in the case, whether it necessitated the application of community standards. The court held that the issue in question was one of fact, not community standards, and thus appropriately decided by a judge. The court found that the trial judge correctly exercised their discretion in declining the application.

The Court of Appeal found no error in the trial judge's decision. The court upheld the conviction and sentence, concluding that the trial was conducted fairly and that the refusal of the application for a judge alone trial did not prejudice the appellant. The appeal was dismissed.

Orders