R v Tongia

[2019] NZHC 3278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-11143

[2019] NZHC 3278

THE QUEEN

v

JOSHUA SIO TONGIA

Date of hearing:	4 December 2019
Appearances:	D G Johnstone and STL Teppett for the Crown L O Smith and P K Hamlin for Mr Tongia
Date of judgment:	12 December 2019

JUDGMENT OF JAGOSE J

[Evidence for s 10, CP(MIP) Act hearing]

The judgment was delivered by me on 12 December 2019 at 2.30pm.

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland Phil Hamlin Barrister, Auckland

Lorraine Smith Barrister, Auckland

R v TONGIA [2019] NZHC 3278 [12 December 2019]

[1]                 Joshua Tongia is charged with the murder of Rima Sikei,1 and the attempted murder of Taufa Siu.2 The offences are alleged to have occurred in the course of a melee late on the night of 7 December 2018 on a street in Auckland’s Mount Roskill, involving street residents (including Mr Tongia) on the one hand and visitors to the street (including Mr Sikei and Mr Siu) on the other. Mr Sikei and Mr Siu sustained stabbing injuries; in Mr Sikei’s case, with fatal consequences.

[2]                 Trial was scheduled to commence on 4 November 2019. On 13 September 2019, Doogue J found Mr Tongia unfit to stand trial.3 As a consequence “the court must inquire into the defendant’s involvement in the offence” under s 10 of the Criminal Procedure (Mentally Impaired Persons) Act 2003,4 which provides:

10 Inquiry before trial into defendant’s involvement in the offence

(1)    This section applies if, before trial, the defendant is found unfit to stand trial.

(2)    The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

(3)    For the purposes of subsection (2), the court may consider—

(a)any formal statements that have been filed under section 85 of the Criminal Procedure Act 2011:

(b)any oral evidence that has been taken in accordance with an order made under section 92 of the Criminal Procedure Act 2011:

(c)any other evidence that is submitted by the prosecutor or defendant.

[3]The Crown wishes to rely on those formal statements, being such as:5

… form the evidence for the prosecution that the prosecutor proposes to call at trial, or such part of that evidence as the prosecutor considers is sufficient to justify a trial …

Evidence is “sufficient to justify a trial” if, as a matter of law, a properly directed jury could reasonably convict the defendant on that evidence.6

1      Crimes Act 1961, ss 167(b) and 172.

2      Section 173.

3      R v Tongia [2019] NZHC 2323 at [11].

4      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 8A(5).

5      Criminal Procedure Act 2011, s 85(1)(a).

6      Section 85(4).

Application for oral evidence order

[4]                 Mr Tongia’s counsel, Lorraine Smith and Phil Hamlin, seek to adduce oral evidence from the makers of those statements and from other witnesses, to dispute the evidence is sufficient to establish on the balance of probabilities Mr Tongia caused the act forming the basis for the murder charge. And they say the oral evidence also may establish he was justified in his actions on either or both charges, being taken in defence of his brother, who was under sustained assault.

[5]                 The application to adduce oral evidence is brought on grounds it is “in the interests of justice to take the oral evidence of the witness”.7 I am to determine the application on the basis of the witness’ formal statement (if any), any other written evidence, and any submissions from the parties.8

—sufficiency of identification

[6]                 On sufficiency of identification, the argument is the formal statements are inadequate to identify Mr Tongia as the assailant. The Crown accepts its case for murder is circumstantial; no-one saw Mr Tongia assault Mr Sikei. Mr Tongia’s counsel would seek to undermine such identification evidence as there may be through cross- examination of all nineteen Crown factual witnesses, and an expert witness as to his DNA analysis, as well as by the oral evidence of two neighbours (presumably to be called by  Mr  Tongia,  and  therefore  not  susceptible  to  his  cross-examination).  In addition to the fact and expert witnesses’ formal statements, I have the neighbours’ statements to the police, an ESR report of results from samples taken from items of clothing, and counsel’s submissions.

[7]                 Mr Tongia’s counsel say the test is if “it is in the interests of justice for witnesses to be called and cross-examined (as would have happened at the trial)”. They say there is an alternative to the Crown’s narrative of Mr Tongia and his family as the aggressors, which is they were defending against the visitors’ attack. They point to “conflicts” in the formal statements as to precisely what happened between whom with

7      Section 92(1)(c).

8      Section 92(4).

what in the melee, and what clothes Mr Tongia was wearing. They lack meaningful instruction from Mr Tongia, given his unfitness.

[8]                 Crown counsel, David Johnstone, points out the application does not isolate what evidence of which Crown witnesses is sought to be subjected to cross- examination. He emphasises the application includes for oral evidence from witnesses who provide no account of observing any aspect of the events between Mr Tongia and either Mr Sikei or Mr Siu. And he questions how the neighbours’ statements may be impugned, if their oral evidence is to be called for Mr Tongia.

[9]                 It is well-established I have “a measure of discretion about the procedure to be adopted” on a s 10 inquiry, which “extends to … whether cross-examination should or should not be allowed”.9 Of relevance is the standard for satisfaction Mr Tongia caused the act forming the basis of the murder charge; in the present context, it is if satisfied on the balance of probabilities Mr Tongia stabbed Mr Sikei, causing his death. The Court of Appeal considered it “probably right” the s 10 enquiry “implies a more relaxed evidential inquiry … subject to the requirements of natural justice and the ability to test any evidence which may be inherently unreliable”.10

[10]              Having read the formal and other statements, I am unable to identify any conflicts between witnesses’ accounts of the melee and its participants such as may make one or other ‘inherently unreliable’. Instead, the ‘conflicts’ are witnesses’ differing accounts of what they recollect seeing or hearing at the time. Any lack of definitiveness in those accounts comes from their overall disparity, and not from any apparent error in one or another. I am given no reason to think cross-examination may clarify the differences.

[11]              Uncertainty is inherent in any difference between formal statements; it will be taken into account in determining if, on the balance of probabilities, the evidence against Mr Tongia is sufficient to establish he caused the acts forming the basis of offences with which he is charged. But the s 10 inquiry is more ‘relaxed’ than as would

9      R v Jeffries [2012] NZCA 608 at [33].

10     R v McKay [2009] NZCA 378, [2010] 1 NZLR 441 at [46]–[48], citing Warren Brookbanks “Special Hearings under CPMIPA” [2009] NZLJ 30 at 40 (emphasis added).

be at trial; cross-examination’s availability at trial does not of itself emphasise any need for oral evidence on s 10 inquiry, or that such is required on natural justice grounds.

—justification

[12]              The application in the previous respect also has a strong sense of ‘fishing’ about it – looking for, rather than at, evidence supportive of the defence position.11 But that position – essentially, to support the alternative narrative,12 thereby advancing a foundation for Mr Tongia’s contended justification – is not responsive to the question to be addressed on the s 10 inquiry.

[13]              So far as ‘justification’ is concerned, the argument is s 10(2)’s ‘cause’ means more than the offences’ actus reus alone. It encompasses at least some exogenous cause, such as a defendant may rely on in justification. Mr Hamlin, arguing the application for Mr Tongia, heavily relied on R v Cumming, in which French J referred to English and Australian authorities to conclude:13

[I]f there is objective evidence which raises the issues of mistake, self defence and accident, then the Court should not find the accused caused the act or omission unless satisfied on the balance of probabilities that the prosecution has negatived that defence.

[14]              In R v Te Moni, without deciding the issue, the Court of Appeal initially considered s 10’s purpose is to prevent “the possibility of a person found unfit to stand trial being subjected to detention or similar measures in circumstances where he or she has not, in fact, committed an offence”.14 The Australian authority relied on by French J required difficult distinctions to be made, which:15

… would be unnecessary if the s [10] inquiry were limited to proof that the defendant committed the physical acts that form the basis of the offence, as opposed to the actus reus. There is some indication in the Hansard debate relating to the Bill which became the CP Act that that may have been what was envisaged by Parliament as the test applying under s [10]. However, that approach does not appear to set a sufficiently high threshold to meet the

11     Re Securitibank (No 31) (1984) 1 PRNZ 514 (HC) at 519–520.

12     At [7] above.

13     R v Cumming HC Christchurch CRI 2001-009-835552, 17 July 2009 at [89(d)], citing R (on the application of Young) v Central Criminal Court [2002] 2 Cr App R 12.

14     R v Te Moni [2009] NZCA 560 at [68]; endorsed in R v Jeffries [2012] NZCA 608 at [39].

15     R v Te Moni, above n 14, at [79].

objective of s [10], which is to ensure that a court has made a finding of criminal culpability before the sanctions which can apply to a person who is unfit to stand trial can be imposed on that person,

The Court of Appeal added “[t]he lack of clarity in the provision is concerning”.16

[15]              But, in Jones v R, the Court of Appeal more recently observed s 10 gave rise to “great difficulty”,17 referring to this Court’s observation “[t]here are now a number of conflicting authorities concerning the extent to which the Court examines anything beyond the bare actus reus of the offence”,18 and its conclusion “[s]ection [10] seems

… more likely to be intended simply to exclude a likely non-participant than anything more sophisticated than that”.19 Subsequently, in Maangi v R, the Court of Appeal assessed:20

The comment in Te Moni reflects the fact in a s [10] inquiry the Court’s task is to ascertain whether the actus reus is established, albeit to the civil and not the criminal standard of proof.

[16]              Certainly, if parliamentarians’ comments on the passage of s 10 are to be taken to reflect parliamentary intention, their repeated references to an unfit defendant’s “physical responsibility” for the act or omission reinforce the foundation for the Court of Appeal’s latter position.21 It is telling s 3(b), in setting out the Act’s purpose, uses s 10(2)’s precise formulation. That suggests no greater threshold of ‘criminal culpability’ is anticipated, as the Court of Appeal’s revisionism above also indicates.

[17]              Looking at s 10’s words alone, “caused the act or omission” is not apt either to require a finding of criminal culpability, or to encompass exculpatory matters of justification. If the evidence is insufficient to establish the person caused the act or omission, the charge is dismissed, the finding of unfitness to stand is deemed quashed, and the Court has no further jurisdiction over the person.22 Otherwise the Court is to determine if the person is more suitably dealt with either detained pursuant to mental

16 At [79].

17 Jones v R [2015] NZCA 601 at n 4.
18 R v R T P H [2014] NZHC 1423 at [4].

19 At [7].

20 Maangi v R [2017] NZCA 534 at [36].

21 Criminal Justice Amendment Bill (No 7) 1999 (328–1) (explanatory note) at iii; (5 October 1999) 580 NZPD 19707; Criminal Justice Amendment Bill (No 7) 1999 (328–2) (select committee report) at 3–5; and (21 October 2003) 612 NZPD 9546.

22 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 13(2).

health and intellectual disability legislation or, if that is unnecessary, with treatment or care under that legislation or by being released.23

[18]              Criminal culpability or justification thus are immaterial to the assessment, because the person’s cause of the acts or omissions forming the basis of the offence leads only to appropriate healthcare or release. Neither outcome is reliant on the person’s criminal culpability or lack of justification. Sections 24 and 25’s alternatives illustrate, while the healthcare may (but need not) be under detention, such is not responsive to any criminality on the part of the person, but to the ‘necessity’ for such assessment and treatment or care and rehabilitation “in the interests of the public or any person or class of person who may be affected by the court’s decision”.24 Such ‘necessity’ is not amplified (or reduced) by the person’s criminal culpability, or (lack of) justification.

Result

[19]              I therefore am unable to identify any interest of justice requiring oral evidence to be taken on the s 10 inquiry.

[20]Mr Tongia’s application is dismissed.

—Jagose J

23     Sections 23–25.

24     Section 24(1)(c).