Tully v The Queen - [2020] NZCA 690

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA288/2016
[2020] NZCA 690

BETWEEN	RUSSELL JOHN TULLY Appellant
AND	THE QUEEN Respondent

Hearing:	8 October 2020
Court:	Miller, Venning and Katz JJ
Counsel:	Appellant in person M J Lillico and R K Thomson for Respondent CWJ Stevenson as Counsel assisting the Court
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…

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 Tully v The Queen

Details

AGLC: Tully v The Queen [2020] NZCA 690
Case: [2020] NZCA 690
Decision Date: 21 December 2020 at 3.00 pm

CaseChat Overview and Summary

Russell John Tully 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 Court of Appeal dismisses both the conviction and sentence appeals. The Court finds that Mr Tully was fit to stand trial and that there was no basis for leaving the defence of insanity to the jury. The Court also finds that Mr Tully’s right to counsel was not denied, and that his absence from the courtroom for large parts of the trial did not make it unfair.

Orders