Tully v The Queen
[2020] NZCA 690
•21 December 2020 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA288/2016 [2020] NZCA 690 |
| BETWEEN | RUSSELL JOHN TULLY |
| AND | THE QUEEN |
| Hearing: | 8 October 2020 |
Court: | Miller, Venning and Katz JJ |
Counsel: | Appellant in person |
Judgment: | 21 December 2020 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application for leave to admit new evidence on appeal is granted.
BThe appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
TABLE OF CONTENTS
The facts [5]
Mental state inquiries [18]
Mr Tully initially found fit to stand trial [18]
Mr Tully triggered CPMIP fitness inquiry [19]
The expert reports [21]
The s 9 involvement hearing [25]
The s 14 mental impairment hearing [29]
The Judge’s decision finding Mr Tully fit to stand trial [31]
Adjournment of trial scheduled for November 2015 [38]
Mr Tully’s health [39]
Legal representation [44]
Decision to proceed to trial without own counsel [46]
Mr Tully’s presence at trial [50]
Mr Tully’s election not to give evidence [60]
The summing up [71]
The conviction appeal [73]
The appeal process [73]
The grounds of appeal [78]
New evidence about Mr Tully’s mental health [81]
Professor Porter’s report [82]
Dr Dean’s reports [85]
New evidence about the trial [97]
Was Mr Tully fit to stand trial? [108]
The test [108]
Mr Tully was not unfit on the evidence before Mander J [112]
The new evidence tends to confirm mental impairment [113]
The argument for Mr Tully [114]
Our conclusions [116]
Conclusion: Mr Tully was fit to stand trial [123]
Was a defence of insanity available, and should it have gone to the jury? [124]
Insanity [129]
When must an insanity defence be left to the jury? [132]
Was there an evidential foundation for insanity? [134]
Was the Judge wrong to preclude insanity or insane automatism when he did? [137]
Do the evidence of Dr Dean and the report of Professor Porter make a difference? [143]
Conclusion: the Judge was right not to leave insanity to the jury [146]
Was Mr Tully denied his right to counsel at trial? [148]
Did Mr Tully’s exclusion from the courtroom make his trial unfair? [154]
The role played by counsel assisting the court [164]
Conviction appeal result [173]
The sentence appeal [174]
The sentencing [174]
Submissions [183]
Analysis [187]
Sentence appeal result [201]
On the morning of Monday 1 September 2014, John Tully walked into the Ashburton office of Work and Income New Zealand (WINZ), wearing a balaclava and holding a sawn-off shotgun. He shot and killed two staff members, Peggy Noble and Leigh Cleveland. He wounded another, Lindy Curtis. He fired at Kim Adams but missed.
At his trial in February 2016, Mr Tully represented himself after having dismissed seven sets of counsel. His most recent counsel appeared to assist the Court as amicus curiae, with a brief to advance a defence case. Mr Tully was excluded from the courtroom for much of the trial after persistently disrupting proceedings in an attempt to have the trial aborted.
Mr Tully was found guilty of the murders of Ms Noble and Ms Cleveland, and the attempted murder of Ms Adams. He was also found guilty on two counts of unlawful possession of a firearm but acquitted on charges of attempting to murder Ms Curtis and of laying a trap for his pursuers as he fled the scene. He was sentenced to life imprisonment with a minimum period of imprisonment of 27 years.
Mr Tully now appeals his convictions and sentence. He maintains that he was not mentally fit to stand trial, and that he had an available defence of insanity which the trial judge, Mander J, refused to leave to the jury. To that end he has adduced new evidence on appeal. He also says that he was denied his right to counsel and his trial was unfair, partly because he was absent for most of it after being removed for disrupting proceedings.
The facts
The narrative facts are not now in dispute, but it is necessary to recite them because the Crown maintains both that the shootings were planned and organised, targeting victims against whom Mr Tully harboured a grudge, and that any mental impairment did not affect Mr Tully to the extent that he did not understand what he was doing or that his actions were wrong. Mander J found at sentencing that Mr Tully had formed a plan to target WINZ employees and described the murders as premeditated and cold-blooded executions.[1]
[1]R v Tully [2016] NZHC 1133 [Sentencing notes] at [9], [26], [28] and [31].
Mr Tully was raised in Ashburton and as an adult lived variously in New Zealand and Australia, working as a diesel mechanic but never holding a job for long. He returned to New Zealand permanently in 2012 and to Ashburton in 2014, when he was aged 48. At sentencing Mander J recorded that Mr Tully went into something of a downward spiral after returning to New Zealand. He was estranged from his family and believed he was dying of a skin condition, which he still treats with hydrogen peroxide. Medical reports indicate that he has no such condition, and that hydrogen peroxide would not be a suitable treatment, but Mr Tully believes he has such a condition, that it affects his brain, and that hydrogen peroxide alleviates it. He was and remains to this day assiduous in his attempts to have his self-diagnosis confirmed.
After moving to Ashburton Mr Tully lived in variously rented accommodation and camping grounds. Sometimes he lived rough along the Ashburton River. He engaged with the WINZ office in Ashburton, seeking permanent accommodation in a sole-occupant residence and financial assistance. He sought food payments and money to treat himself, and money to purchase a mobility scooter (which he was denied) and a bicycle. He appears to have been afforded all the assistance available to him, but he was dissatisfied and adamant that he was being denied his entitlements. He was demanding and intimidating in his dealings with staff and frequently made complaints against them when they refused to accede to his demands. Ms Cleveland and Ms Adams had both dealt with his requests.
On 7 August 2014 Mr Tully entered the WINZ office, where the receptionist, Ms Noble, spoke to him and reminded him that his appointment was for the next day and he had previously been asked to leave the office. He was eventually persuaded to leave, having been given $60 for food, $29 for hydrogen peroxide and $495 for a week’s accommodation at a campground. He ripped the papers up when he saw that the grant he was being given was recoverable, and staff asked him to leave and threatened to call the police. On the following day, 8 August, he was trespassed and required to deal with WINZ via its helpline. He continued to contact WINZ in that way. On 28 August he made an appointment via the helpline for the following day. A manager, Jamie Carrodus, called to tell him he was still trespassed and would need an agent to act on his behalf. He nonetheless came to the office on the 29th of August, which was a Friday, and was turned away by the security guard.
Over the weekend Mr Tully made preparations for the attack. He dumped the contents of a storage locker that he had been renting, the contract having been terminated because he was suspected of living in the locker. He hid his two cellphones on trucks at the storage yard of a trucking company, evidently to provide himself with an alibi founded on the trucks’ subsequent movements. He hid one of two bicycles he had been using along the Ashburton River, planning to switch bikes as he made his escape.
On 1 September Mr Tully arrived at the WINZ office on his other bicycle. He was dressed in a green jacket and carried a backpack. Before going to the office he had bought, among other things, three bottles of hydrogen peroxide from his regular pharmacy. At the WINZ office he locked his bike and walked inside, wearing a balaclava and carrying a sawn-off pump action shotgun. Some of the cartridges contained solid shot rather than pellets. The time was 9.51 am.
Mr Tully shot Ms Noble at the reception desk. The chest wound was immediately fatal. He moved into the offices and saw Ms Adams. He fired at her but missed. She fled through a door which led to an exit.
Mr Tully then saw Ms Curtis and a male client of hers huddled under her desk. Ignoring the client, he shot her in the leg.
Mr Tully moved about the office, looking for other staff. He noticed Ms Cleveland under her desk at the rear of the office. She begged for her life, but he shot her twice. He turned away, then returned — there was evidence that she had made a sound — and shot her once more, fatally.
Mr Tully then walked calmly out of the premises, packed the weapon and balaclava in his backpack, unlocked his bike and left. Little more than a minute had elapsed since he entered the building. He was accosted by a member of the public as he left, which caused him to leave his helmet and bike lock behind, but he made his escape along a river path. The Crown alleged that he stopped at one point and strung a wire across the path at a height of about 170 cm as a trap for his pursuers. Along his route he disposed of the shotgun, which has never been recovered, and hid the bike, switching to the bike he had hidden earlier.
At 5.30 pm police found Mr Tully hiding in a macrocarpa hedge about 12 kilometres from town. He had been spotted by a farmer. In his possession was another, disassembled, shotgun and a number of cartridges. His backpack contained a note stating “Discrimination Kim Adams, Leigh Cleveland”.
In his interview with the police, which was not adduced at trial in the face of his objections, Mr Tully commenced by insisting that he needed salt and he needed to treat himself or he would die. He then stated that he wanted his lawyer before he would talk and pointed out, when being told of his right to remain silent, that the interview was already being recorded. The interview was paused while counsel, Ms Aickin, was contacted and spoke to Mr Tully. When the interview resumed, with Ms Aickin present, Mr Tully agreed that he understood his rights and was willing to continue. He then explained that he remembered nothing between picking up his medication for his skin condition and being arrested. He professed to be unsure about the clothing he wore that day. He explained that he had being trying to get help from many sources but no one would help and he had been trespassed from various agencies or public spaces. He recounted his grievances with WINZ in some detail, including being trespassed and being required to repay his accommodation supplement. He said the Ashburton office would deny his rights even when they were written down in legislation. However, he made it clear that he was alert to the officer’s evident purpose of establishing whether he had a motive to do WINZ any harm. He claimed that he could not name any of the staff he had dealt with (except a regional manager). He said he had turned up on August 29th because he had made an appointment and that meant WINZ was obliged to see him. When the officer directed the questioning toward the shootings, he maintained he had no memory of the day and stopped the interview.
Mr Tully was charged with two counts of murder, two of attempted murder, one of setting a trap with intent to injure, and two of unlawful possession of a firearm. As noted above, he was acquitted at trial of the charge of laying a trap and the attempted murder of Ms Curtis. Mander J attributed the latter verdict to the absence of any prior dealings between her and Mr Tully and evidence that he may have aimed at her leg.[2] Ms Noble and Ms Cleveland were shot in the chest. The jury may have been unsure that it was Mr Tully who strung the wire across the track.
Mental state inquiries
Mr Tully initially found fit to stand trial
[2]At [10].
After his arrest a forensic psychiatrist who had examined Mr Tully in custody recommended a psychiatric report pursuant to s 38(2)(c) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP). On 23 September 2014, Mr Tully was admitted to a secure mental health unit, Te Whare Manaaki, at Hillmorton Hospital for that purpose. Dr Julie Norris, a consultant forensic psychiatrist, prepared the report, which was dated 6 October 2014. After being advised of the purpose of the report and discussing the limits of confidentiality at some length, Mr Tully said that he wished to take legal advice and requested a list of all the questions Dr Norris would ask. He then politely declined to participate in a clinical assessment, saying he would obtain a private psychiatric report. Dr Norris spoke to his treating psychiatrist at the hospital, who reported that Mr Tully had been observed by staff and there had been no bizarre, disorganised or distressed behaviour. During her engagement with Mr Tully, Dr Norris found him able to listen and respond appropriately. There was no evidence of disorganised thought processes or abnormality of mood. He showed he could understand, process and comprehend information about participating in the assessment. Subject to the limitations imposed by his refusal to participate, Dr Norris found he appeared to display no mental impairment that would affect his ability to plead or participate in the proceedings. She was not able to say whether he had a defence of insanity available.
Mr Tully triggered CPMIP fitness inquiry
In April 2015, shortly before his trial was to begin, Mr Tully wrote to the Court raising the question of his mental health both at the time of the incidents and presently. Mander J treated Mr Tully’s request as an application to engage the fitness inquiry under CPMIP.[3] He noted that the offences were unusual, indicative in themselves of mental instability; Mr Tully’s demeanour and his police interview might be considered troubling; four counsel had been appointed only to be dismissed in short order; Mr Tully’s beliefs about his health needs and medical conditions were indicators of which the Court must be cognisant; and Dr Norris’s report of 6 October 2014 had been written without access to medical records.[4] He observed that a psychiatrist, Professor Richard Porter, had been engaged by the defence and, despite successive dismissals of counsel, arrangements had been made to ensure the Professor completed the work. It followed that the trial date had to be vacated.
[3]Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP), pt 2, subpt 1. See R v Tully HC Christchurch CRI-2014-009-8232, 1 May 2015.
[4]The Judge cited McKay v R [2009] NZCA 378, [2010] 1 NZLR 441, in which this Court considered the threshold for raising fitness under CPMIP.
The Court requested two reports under s 38(1)(a) of CPMIP. One was from Dr Sue Galvin, a clinical psychologist, but Mr Tully said he was unwell and refused to see her. She was accordingly unable to offer an opinion. The other was from Dr Norris. On her recommendation Mr Tully was again detained in Te Whare Manaaki on 17 June 2015 so the second report could be prepared. It was written by a consultant clinical psychologist, Craig Prince. A report by his treating psychiatrist, Dr Maxwell Panckhurst, was also produced during the s 14 hearing.
The expert reports
All three experts were able to interview Mr Tully in mid-2015, though he was unwilling to discuss some subjects, such as drug use. It appears he had decided that his previous refusal to engage had been unhelpful for him. The experts obtained access to his extensive health files, including Australian records, and Dr Norris talked to Mr Tully’s mother. The records contained evidence of his longstanding concern with his skin condition, for which there was no clinical evidence beyond a diagnosis of episodic mild dermatitis and rosacea before 2012. He was unable to explain the nature of his condition and he had declined to participate in a dermatological assessment. His prison records included evidence of malingering; he claimed to be unable to walk but moved normally when he thought he was not being observed. He had said he would feign symptoms to obtain admission to hospital.
In the interviews Mr Tully was keen to convey information supporting a diagnosis of mental illness. He claimed to experience psychiatric difficulties when living in the community: he would hear voices in his head and see “dead pigeons” and animals which were “opaque” and was fearful of people following him and being spied on. He was concerned that a tracking device had been inserted in his tooth and that “autonomous dump trucks” had been imported into New Zealand. However, the experts expressed doubts about these accounts: Dr Norris could not elicit a detailed account of consistent clinical symptoms with associated paranoid or persecutory fears, and Dr Panckhurst found Mr Tully’s account inconsistent and lacking in depth.
Dr Norris concluded that there was “no current evidence indicative of hallucinations, bizarre beliefs, paranoia or persecutory beliefs” outside his concerns about his physical health, and nothing that would be considered consistent with a major mental, mood or anxiety disorder. It was possible that Mr Tully was misinterpreting or exaggerating bodily symptoms, but no psychiatric diagnosis had been made regarding his skin preoccupation. Even if he were diagnosed with a somatic (bodily) psychiatric disorder it would not be sufficient to qualify as a mental disorder under s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (meaning a disorder that would qualify for compulsory treatment). He did display personality disturbance with antisocial and narcissistic features and there was a persistent account in his clinical files of a grandiose sense of entitlement. However, a more specific personality disorder had not been diagnosed. She found that he had been able to raise the question of fitness with the Court in a logical and coherent fashion and he exhibited a reasonably sophisticated understanding of the court process. He had demonstrated the ability to engage in interviews with lawyers and clinicians and he had the ability to make “clear” decisions about his options and appreciate the consequences. She concluded that he did not have a mental impairment that would affect his ability to adequately understand the nature or purpose or possible consequences of the proceedings, and that he was fit to stand trial.
Mr Prince also found Mr Tully fit to stand trial. Mr Tully was logical and coherent and did not claim to be currently experiencing delusions. Although he had unusual beliefs about his skin condition, there was no evidence of delusional thinking. Mr Tully was less co-operative with Mr Prince than he had been with Drs Norris and Panckhurst, but equally firm that he was unfit to stand trial. Mr Prince noted that Mr Tully had not attracted a formal psychiatric diagnosis and so was not considered mentally impaired. His beliefs about his skin condition could attract a diagnosis, but it would be unlikely to affect his fitness to stand trial. His irritable and demanding behaviour likely reflected personality traits rather than an enduring mental illness. He appeared to understand the nature and purpose of proceedings and was able to communicate adequately with counsel for purposes of a defence.
The s 9 involvement hearing
Four sets of counsel had been appointed and had withdrawn by this time. The Judge appointed one of them, Tony Greig, as amicus curiae with a brief to assist Mr Tully.[5] He was to explain the process and advise Mr Tully throughout the hearing, both as to the law and as to questions he may wish to ask witnesses. Counsel might question witnesses about matters that counsel thought relevant, but would not do so without first consulting Mr Tully, who was anxious to control the questioning. If Mr Tully would not accept assistance, then as amicus Mr Greig might independently question witnesses and advance such submissions as he thought appropriate in opposition to the Crown case.
[5]R v Tully HC Christchurch CRI-2014-009-8232, 8 June 2015 at [11]–[13].
The trial having been adjourned, the Judge recorded that Mr Tully now had a further opportunity to instruct counsel.[6] A further counsel, Mr Rout, was appointed but shortly after the s 9 hearing had begun, on 9 June 2015, he too was given leave to withdraw. Mr Tully represented himself with Mr Greig as amicus.
[6]At [10].
The s 9 hearing inquired into whether, on the balance of probabilities, Mr Tully had caused the act or omission forming the basis of the charges.[7] Mr Tully was unco‑operative and disruptive. The Judge recorded in a file note that Mr Tully said he had just come to eat his lunch and that he was going to read his Bible.[8] He declined to speak to Mr Greig, who had written to Mr Tully outlining the purpose of the hearing. As witnesses gave evidence, Mr Tully began to make loud comments. He then told the Judge that he was very sick and needed to lie down and was sensitive to noise. The Judge was aware of Mr Tully’s complaints about his medical condition and his treatment in prison. He noted that although Mr Tully claimed to need a wheelchair he had been observed walking in his cell and that before he interrupted the hearing he had shown no sign of being in pain. The Judge accordingly ruled that the hearing would proceed. Mr Tully then spoke loudly, making a continuous noise designed to interrupt the proceeding, and was asked to stop. When he did not, he was removed. The Judge had him brought back into court later. A Corrections nurse who had accompanied Mr Tully to court found nothing wrong with him. Mr Greig explained that Mr Tully wanted hydrogen peroxide, which Corrections would not provide as there was no medical justification for it. Mr Tully told the Judge that he wanted this treatment. The Judge responded that it was not for him to intervene in Corrections’ management of the issue, and the treatment would not become a bargaining chip to secure Mr Tully’s co-operation. That caused Mr Tully to become violent and he was removed. The Judge was satisfied that that was Mr Tully’s objective. After a brief adjournment for Mr Greig to speak to Mr Tully, the hearing continued, with Mr Greig instructed to take a partisan role representing Mr Tully’s interests as he saw fit. Mr Tully chose not to return to the courtroom.
[7]Since amendment to the CPMIP on 14 November 2018, this ‘involvement’ determination follows a finding of unfitness per CPMIP, ss 10–12.
[8]R v Tully HC Christchurch CRI-2014-009-8232, 15 June 2015 [File note of Mander J].
In a judgment delivered on 16 June 2015, the Judge found on the balance of probabilities that Mr Tully had caused the relevant acts.[9] That conclusion was inevitable and it was not in issue before us; accordingly, we have not summarised all the evidence establishing that Mr Tully was the gunman.
The s 14 mental impairment hearing
[9]R v Tully [2015] NZHC 1365 [Section 9 decision] at [37].
Next followed the mental impairment inquiry under s 14 of CPMIP.[10] It was held on 27 October. In the interim, new counsel, Philip Hall QC and Kerry Cook, had been briefed and then granted leave to withdraw, and at a pre-hearing video conference Mr Tully had refused to communicate and sat with his back to the camera. Mr Greig was re-engaged as amicus. At the hearing, however, Mr Tully did participate. He gave evidence, which was led by Mr Greig. Dr Norris and Mr Prince also gave evidence.
[10]This inquiry now occurs first, before a hearing as to the defendant’s involvement in the offence, per s 8A.
The defence did not adduce evidence from Professor Porter (though Mr Tully mentioned a report from him at the hearing). We now have a copy of Professor Porter’s report following a waiver of privilege for purposes of this appeal. He prepared a draft report dated 4 June 2015 and a final report on 6 July 2015. Professor Porter found no evidence that Mr Tully was insane at the time of the offences and concluded that he was fit to plead and to assist in his defence. We return to the report at [82] below.
The Judge’s decision finding Mr Tully fit to stand trial
The Judge recorded that he must decide whether Mr Tully was mentally impaired; and if so, whether due to such impairment he was unable to conduct a defence or instruct counsel.[11] With respect to mental impairment, the Judge followed the judgment of this Court in SR v R, in which it was held that mental impairment is not defined in the CPMIP and the term is not confined to mental disorder[12] or intellectual disability[13] or insanity; rather, it is referable to a mental state or a condition that impairs fitness to stand trial, making the defendant unable to participate adequately.[14] Participation includes but is not limited to pleading, understanding the nature, purpose or possible consequence of the proceeding, and communicating adequately with counsel to conduct a defence.[15] The assessment must be made in context, against the task expected of the defendant.
[11]R v Tully [2015] NZHC 2715 [Section 14 decision].
[12]The threshold for compulsory treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 depends on being mentally disordered: ss 2 and 27.
[13]Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, ss 7 and 45.
[14]SR v R [2011] NZCA 409, [2011] 3 NZLR 638 at [40].
[15]Section 14 decision, above n 11, at [12] citing P v Police [2007] 2 NZLR 528 (HC) at [43] and Solicitor-General v Dougherty [2012] NZCA 405, [2012] 3 NZLR 586 at [56]–[57].
Mander J recognised that Mr Tully might be mentally impaired by reason of a somatic psychiatric disorder concerning his skin condition, or a personality disorder, or intermittent psychosis.[16] He reviewed in detail the reports of Dr Norris and Mr Prince, along with that of Dr Panckhurst and reports of other medical professionals or Corrections or medical staff who had observed Mr Tully during the nine month period of assessment. He noted that the experts had all reached the view that Mr Tully was not mentally impaired and was fit to stand trial.[17]
[16]At [51].
[17]At [96].
With respect to personality disorder, the Judge noted that the experts accepted that Mr Tully exhibits a number of traits consistent with narcissistic personality disorder: a grandiose sense of self-importance and entitlement, a lack of empathy, and arrogant behaviour. But some characteristics of that disorder were not present to the same degree, or at all. Dr Norris was not prepared to diagnose the disorder and Mr Prince was unable to. When asked whether Mr Tully’s repeated dismissals of counsel evidenced such disorder, the experts responded that Mr Tully understood the importance of having counsel and was able to engage with them, and there may be a number of reasons, unrelated to mental impairment, why he might dismiss counsel. They considered that although he was a difficult client, Mr Tully could work with a lawyer if he chose to do so; he was able to absorb and evaluate information and respond logically to it. The Judge added that his own observations were to the same effect:
[60] … At the commencement of the s 14 hearing, Mr Tully was extremely critical of Mr Greig, deprecating his involvement to date in the proceeding, and referring to his unsatisfactory dealings with Mr Greig, presumably both as his instructed counsel and also in fulfilling his role as amicus. Yet, in the afternoon, when Mr Tully was asked whether he wished to call evidence, he took the opportunity to consult with Mr Greig in private about that election, and was clearly happy to do so. …
With respect to Mr Tully’s skin condition, the Court was provided with a report of a consultant dermatologist, Dr Martin Keefe, who had examined Mr Tully in July 2015. Dr Keefe could find nothing to support Mr Tully’s self-diagnosis. He suggested that Mr Tully may have Morgellons Disease, as to which medical opinion is divided: some consider it a physical condition, and others psychological.[18] Dr Norris considered that Mr Tully’s condition is delusional, but that did not alter her opinion regarding mental impairment or fitness to stand trial. Rather, he has a somatic delusion with regards to his skin which causes some distress. Mr Prince preferred not to offer an opinion on whether Mr Tully had Morgellons Disease, but he accepted that Mr Tully is “obsessed” with his skin condition. From his own interactions, Mr Tully was not so focused on his skin condition that he was unable to discuss any other topic. In evidence, Mr Tully himself maintained that he would probably be unable to get through a month-long trial and would need constant treatment and rest and breaks to treat himself.
[18]At [67].
With respect to delusional psychotic behaviour, Mr Tully gave evidence about what he maintained were psychotic episodes going back to 2002. He referred among other things to hearing voices, his belief that a tracking unit had been implanted in a tooth, and “autonomous dump trucks” that were a threat to New Zealand. The Judge noted an inherent contradiction in Mr Tully relating these events as evidence of psychosis while maintaining that he still believed they happened or were true.[19] Mr Tully also gave evidence of occasions on which he had suffered head injuries, which he maintained the experts had not sufficiently taken into account. The Judge rejected that contention. He noted that Dr Panckhurst had expressed apparent scepticism about Mr Tully’s claims to have experienced historic psychotic episodes, and had remarked on Mr Tully’s keenness to provide background information to demonstrate the existence of mental illness.[20]
[19]At [76].
[20]At [92].
The Judge concluded that there was no evidence of a psychotic disorder or delusions,[21] nor was any expert prepared to diagnose Mr Tully as having a personality disorder although some traits were present.[22] He accepted that Mr Tully had a preoccupation with his skin condition, which he maintained extended to his joints, affected his mobility and caused him pain. However, none of those difficulties was sufficiently severe to prevent Mr Tully from adequately communicating and instructing counsel; that being so, Mr Tully was not mentally impaired.[23] Notwithstanding his afflictions, Mr Tully had demonstrated his ability to engage in the court process during the s 14 hearing, asking appropriate questions and examining the health assessors and giving evidence himself.[24] He engaged with Mr Greig to facilitate representation in a competent way. The Judge concluded that:
[109] … I am satisfied that Mr Tully has the ability to plead, to adequately understand the nature, or purpose, or possible consequences of the proceedings, and to communicate adequately with counsel (should he choose to do so) for the purposes of conducting a defence. He has himself demonstrated an ability to represent himself. I have also had regard to the additional factors which supplement the statutory definition of fitness to stand trial.
[110] I have no reason to doubt that Mr Tully understands the charges and the evidence that is to be adduced at trial. I do not consider him to be unable to actively and appropriately participate in his trial because of any mental impairment. He has demonstrated an ability to communicate adequately with the Court and with amicus, and I consider, should he so wish to do so, any instructed counsel he wishes to engage and retain. In my view, as he has demonstrated, he has an ability to relate his version of events, and I do not consider him to be suffering from any mental impairment which prevents him from mounting any defence on his behalf.
[21]At [96].
[22]At [100].
[23]At [103].
[24]At [108].
Mr Tully was accordingly found fit to stand trial.
Adjournment of trial scheduled for November 2015
Mr Tully’s trial was scheduled to begin on 23 November 2015. He was to be self-represented and had been given the appropriate information. He sought an adjournment. A hearing was held at which Mander J heard from Mr Tully, Mr Greig and the Crown. Mr Tully advanced two grounds: his health and his desire to be represented at trial. The adjournment was granted.[25]
Mr Tully’s health
[25]R v Tully [2015] NZHC 2914 [Adjournment decision].
The Judge recorded that Mr Tully had consistently complained of skin problems and arthritis, problems with his left ear, lesions in his skull and brain, weakness in his legs, and blindness, all of which he attributed to an infection that must be treated with hydrogen peroxide. He also complained of pain. He had gone on hunger strike, saying that he needed an MRI scan for lesions and pain. He wished to consult with an independent doctor and sought to resume use of hydrogen peroxide to allow self-medication of the undiagnosed skin disease.
The health centre manager at Christchurch Men’s Prison had sworn an affidavit explaining that an MRI scan had been done, revealing no significant intracranial abnormalities, and attached a report from a doctor, one of a team of general practitioners who had treated Mr Tully at the prison. Mr Tully had refused to allow a physical examination and all previous examinations had been essentially normal, not supporting a diagnosis of a systemic physical illness. His reports of pain were highly variable in presentation and seemed most obvious when he was stressed or in conflict. He had been asked to indicate his preference for an independent medical professional but had not responded. Hydrogen peroxide might be prescribed in the circumstances, given that it was Mr Tully’s treatment of choice and would be relatively safe, and Corrections had accordingly made it available to him a week previously. Mr Tully could continue to take standard pain relief medications, and patients who report delusional pain beliefs sometimes respond to antipsychotic medications.
Dr Norris was asked to prepare a further report about arrangements to facilitate Mr Tully’s participation in the trial as a self-represented defendant. She confirmed that Mr Tully had been offered antipsychotic medication but had refused it. She noted that Mr Tully had previously told her that he would consider fabricating symptoms to secure his return to hospital, and inconsistent physical illness symptoms had been noted by the prison and documented previously. He had also used hunger striking previously to attempt to achieve his objectives, and he was not seen to be in any obvious acute physical distress during the lengthy court hearing on 27 October.
The Judge concluded that:
[74] The considered medical opinion favours a diagnosis that Mr Tully has a somatic condition. That he denies such a diagnosis is consistent with the disorder itself. There does not appear to be anything medically wrong with him. Mr Tully refuses antipsychotic medication which would likely successfully provide him with relief. His presentation in terms of being affected by physical pain is inconsistent and, notwithstanding the effect of his somatic skin condition, there are indications of malingering. Mr Tully himself has previously stated that he would deliberately fabricate symptoms in order to achieve his own demands and, as noted from various sources, his observed variable presentation is not considered consistent with genuine symptoms of pain.
He recorded that Mr Tully’s condition would not preclude the trial proceeding, on a self-represented basis, having regard to the steps taken by Corrections to respond to his concerns and meet his medical needs.[26]
Legal representation
[26]At [75].
The Judge remarked that earlier, in November 2014, he had appointed Mr Greig as amicus because of a pattern of engagement and disengagement with counsel, leading to counsel seeking to withdraw. Mr Tully had dispensed with the services of six sets of counsel, and the Judge had seen no indication that this pattern of behaviour would change should the trial be adjourned; Mr Tully refused to retain the services of counsel and allow himself to be legally represented for any sustained length of time.
It was now November 2015 and the Judge had little confidence that anything had changed. But Mr Tully assured him that Mr Rapley, who was willing to accept engagement but unable to appear on 23 November, was his lawyer of choice and would represent him at trial. He promised that he would co-operate with Mr Rapley as trial counsel. The Judge discussed the Supreme Court decision in R v Condon.[27] He recorded a submission of Mr Greig, as amicus, that the Court could not yet be sure that Mr Tully was manipulating the process to prevent the trial from going ahead. The Judge considered that Mr Tully’s behaviour was well capable of leading to a legitimate conclusion that he had forfeited his right to counsel.[28] But the trial had been adjourned only once, to determine fitness to stand trial, and it had not previously been adjourned for legal representation reasons. Adjournment was burdensome for victims, but the next available trial date was 22 February 2016, just three months away. For these reasons, the Judge granted the adjournment application.[29] He warned that the trial would proceed then, come what may:
[71] Towards the conclusion of the hearing of Mr Tully’s application for an adjournment, I told Mr Tully that whether he retained legal counsel or not, the trial would be proceeding at the next trial date with or without him being legally represented. I formally cautioned Mr Tully that his lack of cooperation with counsel will not be a factor which will affect his trial proceeding at the next trial date. It is intended that the trial proceed on that date whether he is legally represented or not, he having been provided with the opportunity to instruct counsel of his choice, Mr Rapley, to represent him. Mr Tully is therefore now on formal notice of the consequences of him disengaging counsel in terms of his legal representation at trial.
Decision to proceed to trial without own counsel
[27]R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.
[28]Adjournment decision, above n 25, at [67].
[29]At [69]–[70].
The Judge’s concerns about Mr Tully’s willingness to be represented at trial were swiftly borne out. In January 2016 Messrs Rapley and Shamy sought leave to withdraw, citing Mr Tully’s refusal to co-operate. Mr Tully confirmed that he wished to dispense with both counsel, but after hearing from him the Judge declined, having been unable to identify any issues which would warrant termination or prevent counsel from continuing to act.[30] Mander J recorded that he had little doubt but that this was a deliberate tactic. He directed that counsel should continue in their preparations for trial on the balance of Mr Tully’s willingness to cooperate, and if their position became untenable a decision would be made as to the appointment of amicus. However, Mr Tully refused to speak with counsel, and as a result they made a further application on 29 January for leave to withdraw. Mr Tully maintained that they would not follow instructions and he would not say whether he wished Mr Rapley and Mr Shamy to continue to act. The Judge did not grant the application at that time.[31] He noted Mr Rapley’s view that any new counsel would find themselves in the same position. He recorded that Mr Rapley and Mr Shamy were willing to appear as amicus, using their best judgement to test the Crown case, but would not feel comfortable cross‑examining witnesses without instructions from Mr Tully.
[30]R v Tully HC Christchurch CRI-2014-009-8232, 25 January 2016.
[31]R v Tully HC Christchurch CRI-2014-009-8232, 17 February 2016 at [5].
On 11 February counsel filed a further request for leave to withdraw. They had prepared advice for Mr Tully and had gone to the prison to meet him, but he refused to cooperate and became aggressive and confrontational. They were adamant that the relationship with Mr Tully was fractured and there was no possibility they could remain as his defence lawyers. At a conference on 15 February Mr Tully voiced complaints about counsel, complaining that they had refused to process an application for leave to appeal the Judge’s finding that Mr Tully was fit to stand trial. In fact they had not refused to do so, though they had advised him that they did not think there were grounds for an appeal. He also complained that they had conspired with the prosecution to have “tainted” evidence removed. The Judge discussed matters with Mr Tully, trying to impress upon him the need to be legally represented and to cooperate with counsel, but he claimed he intended to take proceedings against them. The Judge concluded that he had no option but to allow counsel to withdraw.[32] He immediately appointed them as amicus, on the same basis that Mr Greig had previously been appointed. Mander J recorded that:
[28] I have no doubt that should the trial be again adjourned to enable Mr Tully the opportunity to instruct what would be his ninth lawyer, the Court would find itself in exactly the same situation again with Mr Tully refusing to engage with counsel for the purpose of trial preparation and making unreasonable demands in relation to collateral matters which counsel would not be able to advance. I take the view that Mr Tully is deliberately manipulating the criminal justice process in order to avoid being placed on trial. As I observed in my judgment of 20 November when I vacated the previous trial Mr Tully’s actions to date are well capable of leading to a legitimate conclusion that he has by his actions forfeited his right to counsel, and I am firmly of the view that this is the case.
[32]At [25].
Mr Tully was subsequently again given the usual information for a self‑represented defendant. In that advice the Judge recorded that Messrs Rapley and Shamy had been appointed to assist the Court and instructed to assist Mr Tully should he choose to make use of their services. Mr Tully might ask counsel to provide him with advice at any time or ask them to make submissions or to question witnesses. Decisions as to the conduct of the defence were Mr Tully’s to make, and he would be given the opportunity to talk with counsel about them. Any discussions between Mr Tully and counsel would be confidential and privileged and no one else in the Court, including the Judge, would know the content of the discussion. The Judge added that amicus had been given a mandate to act in a partisan way to challenge and test the Crown’s case, which would require them to exercise their professional judgement as they would have if engaged as defence counsel. He was free to discuss them the approach to be taken, but they were not bound to follow his wishes.
The Judge confirmed the nature of counsel’s instructions in a minute in which he cited Solicitor-General v Miss Alice and Moodie v Lithgow for the existence of a discretionary jurisdiction to appoint counsel to assist a court by presenting argument which a defendant cannot or will not present for themselves, where necessary to ensure a trial is fair.[33] He recorded that:[34]
[33]R v Tully HC Christchurch CRI-2014-009-8232, 16 February 2016 at [14]–[15], citing Moodie v Lithgow HC Wellington CIV-2006-405-1732, 1 September 2006; and Solicitor-General v Miss Alice [2007] 1 NZLR 655 (CA).
[34]At [22].
(a)Counsel is to be available to explain and assist Mr Tully regarding the procedure of the trial. Mr Tully is encouraged to contact and confer with either Mr Rapley or Mr Shamy or both regarding what tasks, if any, he may wish them to perform on his behalf.
(b)Counsel are to assist Mr Tully with any questions he may have about the evidence, including whether Mr Tully should be asking questions of particular witnesses. They should attempt to discuss tactical or strategic calls with Mr Tully in relation to his trial, and help him prepare cross-examination. It should be noted that if the question is impermissible, or if I consider the way in which the cross-examination is being conducted by Mr Tully is inappropriate, I will intervene.
(c)Mr Tully may prefer counsel to ask questions on his behalf. He may advise counsel of the questions or topics of cross-examination he wishes to cover.
(d)Mr Tully’s right to directly cross-examine witnesses is subject to any application the Crown may wish to make under the Evidence Act regarding the appropriateness of Mr Tully personally questioning particular witnesses, other than through counsel assisting. They are to be available to explain to Mr Tully the witnesses in respect of which such potential applications may be made.
(e)Counsel are to assist Mr Tully on any evidential, procedural or legal issues. They are to assist Mr Tully in any applications it may be considered appropriate for the defence to make.
(f)Counsel are to assist the Court in liaising with Mr Tully regarding procedural matters and the smooth running of the hearing. Counsel are to endeavour to ensure Mr Tully understands the trial processes and the reason for certain procedures.
(g)If Mr Tully needs to discuss matters with counsel that cannot be done in the courtroom, the Court will adjourn to allow such discussions to take place. Where Mr Tully is seeking advice and assistance such discussions will be confidential.
(h)Counsel are to make themselves available to Mr Tully to assist with the empanelling of a jury. It may be that Mr Tully prefers to allow either Mr Rapley or Mr Shamy, who have experience with that type of trial procedure, to take responsibility for the empanelment of the jury.
Mr Tully’s presence at trial
The trial began on Tuesday 23 February 2016. At a pre-trial conference held the preceding Friday, the Judge found it necessary to remove Mr Tully from the courtroom. He had been abusive and persistently interrupted others. On Monday 22 February a hearing was held to deal with admissibility of identification evidence. Mr Tully was again disruptive, claiming that he was unwell and unfit to stand trial. He spoke over the Judge and demanded that he be permitted to lie down, and he repeated his demands while counsel was speaking. When asked whether he would permit the hearing to continue, he said that he would not. Mander J then advised him that a room had been set up with closed-circuit television which would allow him to view the proceeding from outside the courtroom. Mr Tully complained that he had a hearing problem and the noise would hurt his ears. The Judge adjourned so counsel could speak with Mr Tully, but he would not engage with them. He also threatened to smash the equipment in the CCTV room. The Judge accordingly had him removed to a holding cell and proceeded with the admissibility argument. Mander J concluded that:[35]
[19] It is very clear from Mr Tully’s conduct that he has embarked on a strategy whereby he effectively is boycotting his own trial. He refuses to participate. Mr Tully has deliberately taken steps to thwart any attempt to facilitate his participation. He clearly does not wish to hear the evidence relating to the allegations of his actions on 1 September 2014 and it has not become apparent what defence to the charges, if any, he has available to him.
[35]R v Tully HC Christchurch CRI-2014-009-8232, 25 February 2016 [Adjournment minute of 25 February 2016].
In a minute issued after the 22 February hearing the Judge gave his reasons for continuing with the trial.[36] He found that Mr Tully well knew the trial would proceed in his absence and there was no likelihood that his attitude or conduct would change if the trial was adjourned.[37] Mr Tully was unrepresented, but that was by choice. Counsel had been appointed to assist the Court and would be able to protect Mr Tully’s interests. Mr Tully would be at a disadvantage,[38] which potentially extended to being unable to give his account of events, but it was not apparent what explanation or possible defence he could advance on the proposed evidence. The interests of the public and the victims favoured continuing with the trial, which had been adjourned twice previously. Any adverse inference which the jury might draw from Mr Tully’s absence could be overcome by firm directions. The Judge accordingly ruled that the trial would proceed.
[36]Adjournment minute of 25 February 2016, above n 35.
[37]At [28] and [30].
[38]At [40]–[45].
In a separate minute dated 23 February the Judge recorded that he had reviewed various complaints made by Mr Tully about his health and medical care and satisfied himself that Corrections had responded appropriately to Mr Tully’s concerns.[39] By that time Mr Tully was on hunger strike, as he had been prior to the November 2015 trial date. The Judge made arrangements to receive regular updates about his condition. Throughout the trial a doctor was in attendance and the Judge received reports from Corrections, the consistent theme of which was that Mr Tully was not unwell and not unable to participate. In this minute the Judge also dealt with complaints about disclosure from Mr Tully, satisfying himself that disclosure and material provided by counsel had in fact been made available to Mr Tully.
[39]R v Tully HC Christchurch CRI-2014-009-8232, 23 February 2016 [Minute (No. 2) of Mander J].
Mr Tully was nonetheless given the opportunity to appear and to consult counsel when the trial commenced. Because of his pre-trial behaviour he wore restraints. The Judge recorded that he was satisfied, under section 37(3) of the Criminal Procedure Act 2011, that Mr Tully had been informed of his rights to legal representation, understood those rights, and had had a reasonable opportunity to exercise them.
Anticipating difficulty, the Judge had split the jury panel. Half of the panel was in court when the charges were put. Mr Tully disrupted proceedings, saying that he was unwell and needed to lie down and would not represent himself. He repeatedly refused to be quiet and talked over Mander J, preventing the Judge from delivering introductory remarks to the jury panel. Mr Tully spoke loudly over him, repeatedly saying “thank you Your Honour”. He was then removed. The prospective jurors seated in the courtroom were released, and the remainder of the panel were brought in and a jury empanelled in the absence of Mr Tully. Counsel could not challenge jurors for Mr Tully, but the Judge allowed them to raise with him any concerns they had about any particular juror, indicating that he would stand the juror aside if satisfied that was appropriate. It appears that one or two may have been stood down at the suggestion of amicus. The charges were read and Mr Rapley told the jury that Mr Tully was deemed under s 41 of the Criminal Procedure Act to have entered not guilty pleas. Throughout this process Mr Tully insisted, from his cell, that he did not want to participate.
The Judge delivered opening remarks to the jury in which he noted the absence of the defendant, explained that the law provided for such cases, and advised the jury that he had decided that it was appropriate that the trial proceed. He directed the jury that they should not speculate about Mr Tully’s absence and no adverse inference could be drawn from it. He explained the role of counsel assisting the court.
At the beginning of the second day of the trial, the Judge gave Mr Tully an opportunity to be present, to determine whether he was willing to participate. In the presence of the jury, but before either the Judge or counsel had spoken, Mr Tully immediately demanded in a loud voice to know what he was doing there. He would not remain silent but persisted in talking over the Judge. He was removed. The Judge directed the jury to disregard the exchange they had just witnessed and reminded them of the directions he had given not to speculate on Mr Tully’s absence.
Throughout the trial, the Judge and/or counsel assisting enquired of Mr Tully whether he was willing to participate and advised that he would be permitted to do so if he did not interrupt the proceedings. Mr Tully’s response, generally, was to refuse or to reiterate complaints about his medical treatment and health. As noted above, the Judge also received regular reports from Corrections or medical staff about Mr Tully’s condition and his behaviour in the cells. He monitored Mr Tully’s demands for medication and took advice from medical staff, with whom Mr Tully frequently refused to cooperate. During one in-chambers exchange with Mr Tully early in the trial, the Judge recorded his own view that Mr Tully was capable of participating:[40]
[4] Mr Tully addressed me at some length. It was apparent from his presentation and his representations to me, which went on for some considerable time, that he clearly had the ability to engage with the Court, to make submissions and present argument. It was apparent to me from his presentation and interaction in answer to my questions that there was no apparent reason why he could not be present in Court, nor was it apparent to me that he was unfit to be in Court.
[40]R v Tully HC Christchurch CRI-2014-009-8232, 1 March 2016.
On Monday 29 February the Judge again invited Mr Tully to be present in the courtroom, provided he did not interrupt. As soon as the Judge addressed the jury Mr Tully intervened and spoke over him, preventing the first witness from taking his place and being heard. He was removed. The Judge again directed the jury to disregard Mr Tully’s behaviour and not to speculate about the reasons why the Judge had elected to continue
As the trial progressed Mr Tully’s behaviour improved somewhat. He stopped his hunger strike and engaged with medical staff. He also engaged with counsel, while maintaining that he was not willing to have them act for him and wanted to engage other counsel. He opposed admission of his video interview with the police and the Crown elected not to adduce it. The Judge sought to give Mr Tully ample opportunity to discuss with counsel whether he would give or call evidence.
Mr Tully’s election not to give evidence
After assuring the Judge that there would not be any repetition of “the type of outbursts” previously seen, Mr Tully returned to the courtroom on 3 March, the eighth day of the trial, and participated as the Crown led its final witnesses. The Judge explained to Mr Tully that he would be put to his election to give or call evidence and reminded him of the advice previously given about that. Mr Tully initially elected not to give or call evidence.
On the following day, a Friday, the Crown closed its case. Mr Tully again refused to co-operate with the court and made it clear, by silence, that he did not wish to engage in the trial. The Judge was given to understand that Mr Tully would not give or call evidence.
Over the weekend, however, Mr Tully had something of a change of heart. On 7 March when the Court reconvened the Judge was advised that Mr Tully was contemplating giving the closing address and also giving evidence, which would be led by Mr Rapley. Mr Tully was told that there was no impediment to him giving evidence, notwithstanding his previous election. Mr Tully explained to the Judge that would need a bit of time with amicus to work through some topics. The Judge gave him an opportunity to consult counsel for some hours.
After lunch the Judge held an extended chambers discussion about Mr Tully giving evidence. In this section of the judgment we explain what the trial Court record had to say about the hearing. At [105] below we summarise the evidence Mr Rapley gave about it at the hearing before us.
Mr Rapley told the Judge that he had gone through key topics with Mr Tully and debated bullet points written by Mr Tully, who felt able to give evidence. Mr Tully did not wish to re-engage amicus as his lawyers, saying that he remained concerned about their independence, but it was evident that he had accepted their assistance.
The Judge was concerned that Mr Tully should not be under any illusions about what he would be permitted to say in evidence. He checked with Mr Rapley whether counsel had discussed the subject with Mr Tully; in particular, his evidence could not include topics such as disclosure or legal representation or similar issues that had previously been raised in the absence of the jury. Mr Rapley confirmed that Mr Tully had taken that on board.
The Judge then enquired of Mr Rapley whether counsel had traversed with Mr Tully the relevance of any matters he may raise about his health at the time of the incident, stating that “in the absence of independently verified evidence, any evidence relating to blackouts or amnesia will not be sufficient to raise defences such as insanity or automatism”.[41] Mr Rapley advised that he and Mr Shamy had discussed that topic with Mr Tully. The Judge explained that Mr Tully should appreciate that while he could talk about his health, he needed to understand that such evidence alone would not be sufficient to trigger any directions to the jury relating to an insanity defence or automatism, and he needed to understand that before he decided to give evidence. The Judge recorded that he was concerned that Mr Tully not expose himself to cross‑examination and raise issues about his health or medical condition which would not assist him in terms of any issue the jury had to decide.[42] Mr Rapley noted that such evidence would go to the question of intent.
[41]R v Tully HC Christchurch CRI-2014-009-8232, 14 March 2016 [Election minute] at [20].
[42]At [22].
After a further adjournment, Mr Rapley reported that Mr Tully did not wish to give evidence. The Judge stressed to Mr Tully that he did not wish to dissuade him from giving evidence. The Judge’s observations had been intended to ensure he was properly informed and understood the limitations of his evidence. Mr Tully confirmed that he did not wish to give evidence. He was given the opportunity to reflect on that decision overnight.
In a minute recording these exchanges, the Judge explained that the information he had provided to Mr Tully about the possible relevance of insanity or automatism was based on the following analysis:[43]
[40] Whenever evidence before the Court raises the issue of insanity and automatism, the defence may be left to the jury, even though a defendant may disclaim it. This approach as outlined by the Court of Appeal in R v Cottle is reflected in s 20(4) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. That section provides that where it appears from the evidence the defendant may have been insane at the time of the commission of the offence, the Judge may ask the jury to find whether the defendant was insane within the meaning of s 23 of the Crimes Act 1961, even though the defendant has not given any evidence as to his or her insanity or put the question of his or her insanity in issue. Mr Tully never sought to raise insanity.
[41] The approach in R v Cottle is consistent with the general rule that requires an adequate direction by the Judge to the jury on all matters, whether of fact or law, which upon the evidence are reasonably open to the jury to consider in reaching their verdict. I did not consider either automatism or insanity were reasonably open to the jury on the state of the evidence, nor could I envisage how on Mr Tully’s evidence alone such defences could reasonably be available.
[43]Election minute, above n 41 (footnotes omitted).
Having regard to the evidence, and material canvassed in relation to the issue of Mr Tully’s fitness, and his videoed statement, and other material gleaned by the Judge over the course of the proceeding, the Judge held that there was no basis on which it could reasonably be open to the jury to consider the defences of insanity or automatism.[44] Moreover, no medical evidence was being proffered to support such defences.
[44]At [50].
The Judge added that he had formed that view without reliance on the actual evidence which “simply did not admit” of any such defence.[45] He referred to the narrative facts, stating that they could not be reconciled with the actions of an automaton or a person rendered incapable of understanding the nature and quality of his acts or knowing they were morally wrong, at least in the absence of expert medical opinion. It was for that reason that he had explained the position to Mr Tully before the decision was made to give evidence.
The summing up
[45]At [51].
Closing addresses were delivered on the following day. The defence address was delivered by Mr Rapley. Counsel had achieved some success in having evidence of identity excluded during the trial. The address focused on identity and intent, noting that the gunman had not actually shot Ms Adams and had shot Ms Curtis, with whom Mr Tully had had no prior difficulties, in the leg. It was submitted that the Crown had not proved that Mr Tully strung the wire across the track. The verdicts indicate that counsel made some headway with these submissions.
The Judge’s summing up on the law and the cases for each side is not in issue on appeal. He reminded the jury not to read anything into the security measures that had been taken in the trial, which included Mr Tully being restrained in his chair when in court, and that they must not form any inference against Mr Tully because of his absence from the courtroom for large parts of the trial. He reminded them that Mr Tully did not have a lawyer acting for him, and directed them that the reasons why that had come to pass again need not concern them. He reminded them that he had twice attempted to continue with trial in Mr Tully’s presence, and on both occasions had had Mr Tully removed because of his interruptions. He repeated his direction that the jury must not take any of that into account when assessing the evidence and deciding whether the Crown had proved its case beyond reasonable doubt. He reminded them of the role of counsel assisting, stating that counsel had been available to Mr Tully should he choose to obtain advice and to assist in the conduct of his defence, and to assist the Court in the absence of Mr Tully in an attempt to mitigate the lack of representation, but counsel were not representing Mr Tully; they were assisting the Court and their role was to ensure that he received a fair trial.
We also accept that but for that illness Mr Tully might not have approached WINZ or become as insistent as he did on receiving what he thought were his entitlements. Nonetheless, it was his narcissistic sense of entitlement rather than his delusional skin disorder that explained his animus toward WINZ. His planned, organised and purposeful behaviour, which extended to disguising himself and making his escape, strongly indicates that he well understood what he was doing. We agree with the findings of fact made by Mander J and quoted at [176] above. We add that in our opinion Mr Tully is an intelligent man who behaved strategically throughout his trial, and this appeal, exploiting his health complaints to escape accountability for his actions.
As noted above at [75], Mr Tully underwent genetic testing for 47,XYY Syndrome. The results showed “no evidence of numerical or structural chromosome abnormalities” and “no evidence of an additional Y chromosome”. There is therefore no basis for a diagnosis of the Syndrome. We declined Mr Tully’s requests for further testing for other conditions he believes he may have.
In these circumstances, we are not prepared to accept that Mr Tully’s mental conditions mitigate his culpability. On the contrary, they contribute to the long-term nature of the risk that he presents to others. And while we recognise that his delusional skin disorder causes him distress, we do not accept that imprisonment will make it significantly harder to bear.
Sentence appeal result
The sentence appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent