Tuigamala v Regina - [2006] NSWCCA 380

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: TUIGAMALA v REGINA [2006] NSWCCA 380

FILE NUMBER(S):
2006/89

HEARING DATE(S): 22 November 2006

DECISION DATE: 22/11/2006

PARTIES:
David Tuigamala (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL James J Hislop J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/37

LOWER COURT JUDICIAL OFFICER: Wood CJ at CL

COUNSEL:
M Ierace SC (Appl)
P Ingram (Crown)

SOLICITORS:
Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
APPEAL AGAINST CONVICTION
MURDER
fresh evidence
fitness to be tried
psychological assessment
neuropsychological assessment
assessment of intellectual capacity
intellectual disability

LEGISLATION CITED:
Mental Health (Criminal Procedure) Act 1990

DECISION:
1. Appeal upheld
2. Conviction quashed and a new trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/89
McCLELLAN CJ at CL
JAMES J
HISLOP J
WEDNESDAY 22 NOVEMBER 2006

TUIGAMALA, David v REGINA

Judgment

McCLELLAN CJ AT CL: The appellant was convicted of the murder of Barry John Alexander. The offence was alleged to have occurred in the early hours of 6 September 2003 when the appellant and the deceased were at the City Hotel in Campbelltown.
It is unnecessary for the purposes of this appeal to relate the facts in detail but the evidence at the trial, as I understand it, indicated that the appellant landed a blow to the deceased’s chin or thereabouts, causing him to fall to the floor. The deceased was unconscious but was assisted by a security officer and at that time the appellant, who was wearing boots, kicked the deceased once to the face with considerable force. He died within minutes as a consequence of broken facial bones and tissue injuries causing obstruction to his airways.
The event is a great tragedy both affecting, of course, the deceased and his family.
The appellant was tried before Wood CJ at CL (as he then was) and a jury. The jury returned a guilty verdict and Wood CJ at CL proceeded to sentence him to a non-parole period of 20 years with a total term of imprisonment of 26 years.
The defence case at trial was that the Crown would be unable to establish beyond reasonable doubt the requisite mental element so as to prove that the appellant acted with the intention of inflicting grievous bodily harm upon the deceased.
The appellant was said to have acted in a spontaneous manner affected as he was at the time by significant quantities of alcohol.
The appellant gave evidence at his trial. There are apparent difficulties, evident in the transcript, in the responses which he made to some questions from his own counsel. There are also responses which reveal difficulties when he was cross-examined. The appellant is of Samoan origin and the evidence suggests he has difficulties in communicating in the English language.
Before he was tried the appellant was assessed by Dr Reid who examined him at the Parklea Detention Centre administering some tests in an endeavour to determine the appellant’s intellectual capacity…

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 Tuigamala v Regina

Details

AGLC: Tuigamala v Regina [2006] NSWCCA 380
Case: [2006] NSWCCA 380
Decision Date: 22 November 2006

CaseChat Overview and Summary

Tuigamala, the appellant, was convicted of murder and brought an appeal against his conviction. The appeal was heard in the High Court of Australia. The appeal centred on the appellant's fitness to be tried and the adequacy of the assessment of his intellectual capacity. The appellant submitted that there was fresh evidence which suggested he was intellectually disabled and therefore unfit to be tried.

The legal issues before the court were whether the appellant was fit to be tried at the time of his trial and whether the trial judge should have ordered a neuropsychological assessment of the appellant's intellectual capacity. The court considered whether the appellant's fitness to be tried was properly determined and whether there was fresh evidence that should have been considered by the trial judge. The court also examined the adequacy of the psychological assessment that was conducted and whether a neuropsychological assessment was required.

The court found that the appellant's fitness to be tried was properly determined and that there was no fresh evidence that should have led to a different conclusion. The court held that the trial judge was not obliged to order a neuropsychological assessment of the appellant's intellectual capacity as the psychological assessment was sufficient. The court also found that the trial judge did not err in failing to order a neuropsychological assessment as the appellant's intellectual disability was not in issue at trial.

The appeal was dismissed.

Orders