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…

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 Tongia

Details

AGLC: R v Tongia [2019] NZHC 3278
Case: [2019] NZHC 3278
Decision Date: 12 December 2019

CaseChat Overview and Summary

Joshua Tongia is charged with the murder of Rima Sikei, and the attempted murder of Taufa Siu, following an altercation between street residents and visitors in Mount Roskill, Auckland. The case involves a complex legal issue under the Criminal Procedure (Mentally Impaired Persons) Act 2003, specifically section 10, which mandates an inquiry before trial if the defendant is found unfit to stand trial. The court must decide if the evidence against the defendant is sufficient to establish, on the balance of probabilities, that the defendant caused the act or omission that forms the basis of the offence with which they are charged. The Crown proposes to rely on formal statements as evidence for the prosecution, which Tongia’s counsel contests, arguing these statements are insufficient for a trial and that oral evidence from witnesses is necessary. Tongia’s counsel also argue that justification and conflicts in the statements may affect the sufficiency of the evidence.

The court, Jagose J, examines the request for oral evidence, considering the interests of justice, the standard of evidence, and the purpose of section 10 of the Act. The court finds that the evidence from the formal statements is sufficient to establish that Tongia caused the acts forming the basis of the offences, and that cross-examination would not clarify the inherent uncertainty in witness accounts. The court also clarifies that the purpose of section 10 is to ascertain whether the actus reus is established, not to determine criminal culpability or justification. Therefore, the court dismisses Tongia’s application for oral evidence, concluding that no interest of justice requires such evidence to be taken on the section 10 inquiry.

The final orders are that Mr Tongia’s application for oral evidence is dismissed.

Orders