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

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.

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.

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.

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.

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.

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.

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…

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 (No. 3)

Details

AGLC: R v Tuki (No. 3) [2013] NSWSC 203
Case: [2013] NSWSC 203
Decision Date: 15 March 2013

CaseChat Overview and Summary

The case of R v Tuki (No. 3) involved the accused, Tuki, who had previously been found unfit to be tried for charges of murder and other offences. The Court of Appeal determined that Tuki was unfit to be tried due to his mental health conditions. Following this decision, the Mental Health Review Tribunal conducted a review and concluded that Tuki had become fit to be tried. The Crown sought to proceed with the charges against Tuki, and the issue before the court was whether Tuki remained fit to be tried.

The court considered the reports and assessments provided by medical experts and the findings of the Mental Health Review Tribunal. The tribunal had concluded that Tuki's mental health had improved to a level where he could understand the proceedings and participate in his defence. The court found that the tribunal's conclusion was supported by the evidence presented. As a result, the court determined that Tuki was fit to be tried on the charges against him.

The reasoning of the court was based on the balance of probabilities, as the tribunal's findings were deemed to be reliable and well-founded. The court held that the tribunal had the authority to reassess the accused's fitness to be tried and that its decision should be respected. The court was satisfied that the tribunal had properly exercised its discretion and that the decision was supported by the evidence. Consequently, the court found that Tuki was fit to be tried.

The final orders of the court confirmed that Tuki was fit to be tried on the charges of murder and other offences. The court directed that the proceedings against Tuki should continue, and the case was remitted to the lower court for further proceedings. The decision highlighted the importance of the tribunal's role in determining the fitness to be tried and the need for the courts to defer to the tribunal's findings, provided they are supported by the evidence.

Orders