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Supreme Court 14 December 2020

R v Tonga

[2020] NSWSC 1829

Homicide
CRIMINAL LAW MURDER APPLICATION FOR JUDGE ALONE TRIAL APPLICATION REFUSED

Citation: R v Tonga [2020] NSWSC 1829
Court: Supreme Court of New South Wales
Date: 14 December 2020
Judge(s): Fagan J

Background

The accused was charged with the murder of a friend who had visited his home in Eastern Creek on the evening of 10 August 2019. The Crown alleged that, following a prolonged period of agitation, the accused stabbed the deceased in the head with a screwdriver during a physical altercation in a backyard shed, causing fatal brain injuries. The accused was significantly larger than the deceased and, on the Crown's case, had been smoking methylamphetamine that evening.

The accused did not dispute causing the death. His defence was that he was mentally ill at the time, suffering from schizophrenia and substance abuse disorder, and was unable to understand that his conduct was wrong. A secondary defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW) was also flagged, to be relied upon if the primary mental illness defence failed.

Before the trial commenced, the accused applied under s 132(1) of the Criminal Procedure Act 1986 (NSW) for the matter to be tried by judge alone rather than by jury. The Crown opposed the application.

  • Whether it was in the interests of justice, under s 132(4) of the Criminal Procedure Act 1986 (NSW), to order a judge alone trial over the Crown's opposition.
  • Whether the mental illness defence and the substantial impairment defence in this case required the application of community standards, making jury trial the more appropriate mode.
  • Whether potential jury prejudice arising from the personal circumstances of the accused and the nature of the attack warranted departing from trial by jury.

Decision

Fagan J refused the application, finding that it was not in the interests of justice to order a judge alone trial. The central reason was the nature of the mental illness defence. Under the M'Naghten rules, a finding of mental illness turns in part on whether the accused was unable to reason with moderate sense and composure about why his conduct was wrong by the ordinary standards of reasonable people. His Honour found this standard is inherently one of community values, and a jury is the appropriate tribunal to assess it.

The same concern applied to the substantial impairment defence under s 23A of the Crimes Act. That provision requires the tribunal of fact to determine not only whether impairment existed, but whether it was "so substantial as to warrant" the reduction of liability from murder to manslaughter. Fagan J characterised that assessment as a normative judgment about criminal responsibility that calls for the application of community standards, making it particularly suited to jury determination.

His Honour also rejected the argument that delays in jury trials arising from COVID-19 public health restrictions provided a sufficient basis to order judge alone trial. The Court noted that jury panels were being re-assembled and the backlog was being addressed, rendering this consideration of limited weight.

On the prejudice arguments, Fagan J found that the matters raised (including the accused's domestic circumstances and the violent nature of the attack) were of a kind commonly encountered in criminal trials. Appropriate directions from the trial judge were considered sufficient to address any risk, consistent with the well-established presumption that juries follow their instructions.

Orders Made

  • The application for a judge alone trial was dismissed.
  • The prosecution was listed before the arraignments judge on 12 February 2021.

Key Takeaways

  • Where a mental illness defence under the M'Naghten rules requires the tribunal to assess whether the accused could reason about the wrongness of conduct by the ordinary standards of reasonable people, that assessment involves community standards and is best determined by a jury.
  • Under s 23A of the Crimes Act 1900 (NSW), the question of whether impairment was substantial enough to warrant reduction from murder to manslaughter is a normative judgment about criminal responsibility, which the Supreme Court treated as particularly appropriate for jury determination.
  • Refusing a judge alone trial over the Crown's opposition, Fagan J confirmed that the court retains a discretion under s 132(4) of the Criminal Procedure Act 1986 (NSW) to order such a trial in the interests of justice, but that discretion was not exercised where community standards questions were central.
  • COVID-19 related delays in empanelling juries, while acknowledged, were given little weight by late 2020 as jury trials were resuming and the backlog was being addressed.
  • Potential jury prejudice arising from an accused's personal circumstances or the violent nature of an alleged offence will not ordinarily justify a departure from jury trial where appropriate directions from the trial judge can adequately address the risk.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Criminal Procedure Act 1986 (NSW), s 132 (judge alone trial)
- Mental Health (Forensic Provisions) Act 2007 (NSW), s 38 (mental illness defence)

Cases
- R v M'Naghten (1843) 8 ER 718
- Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
- Fang v R [2018] NSWCCA 210
- Kingswell v The Queen (1985) 159 CLR 264
- MFA v The Queen (2002) 213 CLR 606
- The Queen v Baden-Clay (2016) 258 CLR 308
- R v Belghar [2012] NSWCCA 26