R v Tu - [2015] NZHC 3045

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-6670 [2015] NZHC 3045

UNDER
s 9 and 14 of the Criminal Procedure

(Mentally Impaired Persons) Act 2003

BETWEEN

THE QUEEN

AND

JIAXIN TU Defendant

Hearing: 3 December 2015

Counsel:

K A Lummis for Crown
P H H Tomlinson for Defendant

Judgment:

3 December 2015

JUDGMENT OF BREWER J

Solicitors: Meredith Connell (Auckland) for Crown
Peter H H Tomlinson (Auckland) for Defendant

THE QUEEN v TU [2015] NZHC 3045 [3 December 2015]

Introduction

[1] Mr Tu has been charged with murder. A trial date of 30 May 2016 has been ordered. However, Mr Tu has significant mental health difficulties and Mr Tomlinson, on his behalf, invoked the procedures under ss 9 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) to establish whether Mr Tu is fit to stand trial. This judgment decides that issue.

Factual background

[2] On the morning of Wednesday, 1 July 2015, Mr Tu and the victim, Mr Hawe- Wilson, were at an Auckland address with two female associates. There had been friction between Mr Tu and Mr Hawe-Wilson.

[3] In the early hours of the morning, while Mr Hawe-Wilson was asleep in bed, Mr Tu took a builders hammer, went into the bedroom where Mr Hawe-Wilson was sleeping and struck him with the hammer on the back of the head a number of times. This caused massive trauma to Mr Hawe-Wilson’s head and killed him.

Is there sufficient evidence for Mr Tu to stand trial?

[4] The first stage of the inquiry is to determine whether, on the balance of probabilities, there is sufficient evidence to put Mr Tu on trial. I am satisfied that there is. Having considered the Crown’s formal witness statements, and taking into account Mr Tomlinson’s acceptance of the point, I find that, on the balance of probabilities, Mr Tu killed Mr Hawe-Wilson in circumstances that found the charge of murder.

Mental health issues

[5] The second stage of the inquiry under s 14 of the Act goes to Mr Tu’s fitness to stand trial. I have the benefit of reports from two experts obtained pursuant to s 38(2) of the Act. Dr N Joseph has provided reports dated 14 July 2015 and
4 November 2015. Dr I Goodwin has provided a report dated 16 November 2015.

[6] Dr Joseph’s first report indicated that Mr Tu was most likely unfit to plead. However, Dr Joseph was hopeful that he would improve given appropriate treatment. Dr Joseph’s second report says that signal improvement has occurred and that Mr Tu is fit to stand trial.

[7] Dr Goodwin’s opinion is also that Mr Tu is fit to stand trial.

[8] Mr Tomlinson for Mr Tu accepts the reports. He has not required either

Dr Joseph or Dr Goodwin to give evidence.

[9] I am satisfied on the evidence of Dr Joseph and Dr Goodwin that Mr Tu is mentally impaired, but I am also satisfied on their evidence that Mr…

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 Tu

Details

AGLC: R v Tu [2015] NZHC 3045
Case: [2015] NZHC 3045
Decision Date: 3 December 2015

CaseChat Overview and Summary

The case of Tu v The Queen involved a defendant, Mr Tu, charged with the murder of Mr Hawe-Wilson. Mr Tu's mental health difficulties were considered under sections 9 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to determine his fitness to stand trial. The court found sufficient evidence to proceed with the trial and determined that Mr Tu was fit to stand trial based on reports from two experts. The court also declined to consider pre-trial expert evidence on insanity, as the prosecution did not agree with the defence that the only reasonable verdict would be not guilty on account of insanity. The interim name suppression was not renewed due to Mr Tu's fitness to plead and the absence of evidence indicating hardship from name publication.

The court addressed several legal issues, including whether there was sufficient evidence to try Mr Tu for murder, his fitness to stand trial, and the appropriateness of considering pre-trial expert evidence on insanity. The court concluded that Mr Tu was fit to stand trial based on expert evidence, and there was no basis for considering pre-trial expert evidence on insanity. The court also determined that Mr Tu's interim name suppression should not be renewed due to his fitness to plead and the lack of evidence showing hardship from name publication. The court's reasoning relied heavily on the expert evidence provided by Dr Joseph and Dr Goodwin, who concluded that Mr Tu was fit to stand trial despite his mental health issues. The court further noted that the prosecution's disagreement with the defence on the insanity defence precluded the need for pre-trial expert evidence on that issue.

In its judgment, the court held that Mr Tu was fit to stand trial and declined to consider pre-trial expert evidence on insanity, as both the prosecution and defence were not in agreement on that defence. The court also lifted the interim name suppression and declined to suppress the reasons for the fitness to stand trial finding. The court scheduled the trial callover for 9:00 am on 16 March 2016 and granted an extension for the filing of necessary documents. Mr Tu was remanded in custody to appear at the trial callover.

The final orders of the court were to direct the trial callover for 9:00 am on 16 March 2016, lift the interim name suppression, decline to suppress the reasons for the fitness to stand trial finding, and grant an extension for the filing of necessary documents. Mr Tu was remanded in custody to appear at the trial callover.

Orders