R v Tuki (No. 3)

[2013] NSWSC 203

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tuki (No. 3) [2013] NSWSC 203
Hearing dates:	15 March 2013
Decision date:	15 March 2013
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Accused fit to be tried.
Catchwords:	CRIMINAL LAW - accused charged with murder and other offences - found by Court to be unfit to be tried - Mental Health Review Tribunal concludes thereafter that accused fit to be tried - Crown to proceed further against accused - accused found fit to be tried
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Cases Cited:	R v Tuki [2012] NSWSC 1436 R v Tuki (No. 2) [2013] NSWSC 196 R v Presser (1958) VR 45
Texts Cited:	---
Category:	Procedural and other rulings
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

1. JOHNSON J: On 23 November 2012, I conducted a fitness inquiry with respect to the Accused, Ray Tuki, following which I found that he was unfit to be tried for a number of serious offences charged against him in this Court, including murder: R v Tuki [2012] NSWSC 1436.

1. It may be taken that the contents of that judgment, which set out the charges against Mr Tuki, the evidence before the Court on that inquiry and a statement of applicable legal principles, are incorporated by reference in the present judgment.

1. Following the finding of unfitness, Mr Tuki was referred to The Mental Health Review Tribunal ("MHRT") as required by the Mental Health (Forensic Provisions) Act 1990.

1. On 28 February 2013, the Honourable Harold Sperling QC, Deputy President of the MHRT, wrote to the Court providing a copy of the MHRT's reasons and determination concerning Mr Tuki.

1. As my judgment of 23 November 2012 and the reasons of the MHRT make clear, Mr Tuki had been found unfit to be tried with respect to two sets of charges, one set in the District Court and the other group being the present charges in this Court.

1. The MHRT conducted a hearing on 17 January 2013. The MHRT was constituted by the Honourable Harold Sperling QC as Deputy President, Dr Michael Giuffrida, psychiatrist, and Ms Meredith Martin. The MHRT had a volume of documentary evidence before it and, in addition, heard evidence from a number of persons who were involved in the treatment and care of Mr Tuki. The reasons of the MHRT, which are in evidence before me on this inquiry, will speak for themselves.

1. It is sufficient to observe that Dr Matthew Hearps, consultant psychiatrist, was asked to give an opinion to the MHRT concerning the fitness of Mr Tuki to be tried, by reference to the test in R v Presser (1958) VR 45. Dr Hearps answered affirmatively concerning the application of the Presser test to Mr Tuki, and concluded that he was fit to be tried on both the District Court and the Supreme Court matters (pages 7, 9, MHRT reasons).

1. The MHRT, which included an expert psychiatrist member, found on the balance of probabilities, that Mr Tuki was fit to stand trial (page 6, MHRT reasons). Accordingly, in the documents dated 28 February 2013, the MHRT informed the Court that Mr Tuki was now fit to be tried for the offences charged in this Court.

1. Having been notified of this finding, the Court proceeded to take steps in accordance with s.29 Mental Health (Forensic Provisions) Act 1990. Firstly, it was necessary to inquire whether the Director of Public Prosecutions was to further proceed against Mr Tuki. The Director has indicated that it is intended to proceed further against him. In those circumstances, the obligation of the Court is to hold a further inquiry as to Mr Tuki's fitness as a soon as practicable. That is what I am undertaking today.

1. I should observe that, because of the temporal coincidence of the MHRT's conclusion that Mr Tuki was fit to be tried and the listing of a trial of alleged co-offenders of Mr Tuki in this Court, I gave consideration earlier this week to the question of whether (if Mr Tuki was fit to be tried) his trial ought be joined to the trial of the three co-Accused.

1. The Crown indicated that it did not wish any deferral of the trial in circumstances where any delay was likely to be at a least some weeks. The Crown was ready to proceed with that trial, as were the counsel for the three accused in that trial.

1. My reasons for determining that this fitness inquiry should proceed promptly, but separately from the scheduled trial, are contained in a judgment of 11 March 2013: R v Tuki (No. 2) [2013] NSWSC 196.

1. In addition to the reasons of the MHRT with respect to Mr Tuki, further evidence has been placed before the Court in the form of a report of Dr Adam Martin, forensic psychiatrist, dated 13 March 2013. As my judgment of 23 November 2012 makes clear, Dr Martin examined Mr Tuki on a number of occasions on behalf of Mr Tuki's legal representatives, and he had expressed the opinion that Mr Tuki was unfit to be tried.

1. Dr Martin examined Mr Tuki again on 13 March 2013. Dr Martin had available to him the reasons of the MHRT dated 28 February 2013.

1. It is Dr Martin's opinion, having applied the Presser test, that Mr Tuki's mental state:

"... is much improved, he appears to understand the charges, he knows of different pleas and basically what they mean, knows the basic functions of the court, is able to express his wishes coherently, able to discuss issues with his legal team, and probably able to challenge evidence or members of the jury."

1. Dr Martin concluded, "I think he is likely to be found fit to stand trial".

1. Having regard to the evidence, a finding should be made, on the balance of probabilities, that Mr Tuki is fit to be tried for these matters. In making this finding, I have applied the principles as summarised in R v Tuki at [4]-[13].

1. I am satisfied that Mr Tuki is fit to be tried for the offences with which he is charged before this Court.

1. The effect of this finding is that, under s.30 Mental Health (Forensic Provisions) Act 1990, the proceedings brought against Mr Tuki in respect to the offences are to recommence or continue in accordance with the appropriate criminal procedures. In this case, the proceedings are to continue (the proceedings having been held in abeyance pending determination of the question of whether Mr Tuki was fit to be tried).

1. I adjourn the criminal proceedings against Mr Tuki to the Arraignments List on 5 April 2013. Bail is refused.

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