R v Tuki - [2012] NSWSC 1436

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Tuki [2012] NSWSC 1436
Hearing dates: 23 November 2012
Decision date: 23 November 2012
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Accused, Ray Tuki, is unfit to be tried for the offences contained in the indictment dated 23 November 2012, a copy of which will be furnished, together with the documentary exhibits, to the Mental Health Review Tribunal.
In accordance with s.14 Mental Health (Forensic Provisions) Act 1990, the Accused is referred to the Mental Health Review Tribunal.
Pursuant to s.14(b)(iii) of that Act, the Accused is remanded in custody pending the determination of the Mental Health Review Tribunal under s.16 of that Act.
Copies of all exhibits at this inquiry, together with a copy of the indictment, are to be furnished to the Mental Health Review Tribunal, to assist the discharge of its statutory functions under the Mental Health (Forensic Provisions) Act 1990.

Catchwords: CRIMINAL LAW - accused charged with murder and other offences - inquiry into fitness to be tried - earlier finding in District Court of unfitness to be tried for different offences in that Court - finding that accused unfit to be tried for offences in Supreme Court
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Crimes Act 1900
Cases Cited: R v Presser (1958) VR 45
R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284
Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230
Subramaniam v The Queen [2004] HCA 51; 211 ALR 1
Texts Cited: ---
Category: Principal judgment
Parties: Regina (Crown)
Ray Tuki (Accused)
Representation: Counsel:
Mr K McKay (Crown)
Mr P Winch (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Courtroom Lawyers Sydney (Accused)

File Number(s): 2010/223518
Publication restriction: ---

Judgment

JOHNSON J: This is an inquiry under the provisions of the Mental Health (Forensic Provisions) Act 1990 as to whether the Accused, Ray Tuki, is unfit to be tried for a number of serious offences.

There are eight counts contained in an indictment:

(a) Count 1 - that on 29 June 2010, a number of persons committed a serious indictable offence, namely the armed robbery of James Stiff, and the Accused concealed the commission of that offence without reasonable excuse (s.316(1) Crimes Act 1900).

(b) Count 2 - that on 1 July 2010 at Warwick Farm, whilst armed with an offensive weapon, namely a meat cleaver, the Accused robbed Maxine Rogers of a mobile phone and a laptop computer (s.97(1) Crimes Act 1900).

(c) Count 3 - that on or about 1 July 2010 at Lurnea, the Accused did murder Kesley Burgess (s.18(1)(a) Crimes Act 1900).

(d) Count 4 - in the alternative to Count 3, that the Accused, between 1 and 4 July 2010 at Villawood, was an accessory after the fact to the murder of Kesley Burgess (s.349(1) Crimes Act 1900).

(e) Count 5 - that on 1 July 2010 at Lurnea, the Accused, whilst armed…

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 Tuki

Details

AGLC: R v Tuki [2012] NSWSC 1436
Case: [2012] NSWSC 1436
Decision Date: 23 November 2012

CaseChat Overview and Summary

The case of R v Tuki involved the defendant, Tuki, who was charged with murder and other offences. The issue before the court was whether Tuki was fit to be tried for these offences. This determination followed a previous ruling in the District Court, which had found Tuki unfit to be tried for different offences. The Supreme Court had to consider whether this earlier finding applied to the current charges.

The legal issues the court needed to decide were the criteria for determining fitness to be tried and whether the previous finding of unfitness in the District Court could be applied to the current charges in the Supreme Court. The court considered the principles and tests for fitness to be tried, including the requirement that the defendant understand the nature of the proceedings and be able to participate effectively in their defence.

The court found that the criteria for determining fitness to be tried remained consistent regardless of the court in which the trial was to be held. It held that the previous finding of unfitness in the District Court was applicable to the current charges in the Supreme Court. The court concluded that Tuki was unfit to be tried for the offences due to his mental condition, which did not allow him to understand the proceedings or participate effectively in his defence. Consequently, the court ordered that Tuki be detained in a mental health facility.

The final orders of the court were that Tuki be remanded in custody pending a review of his fitness to be tried. The court emphasised the importance of regular assessments of Tuki's mental condition to determine if there was any improvement that would allow for a trial in the future.

Orders