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13
Supreme Court 25 August 2021

R v Tonga

[2021] NSWSC 1064

Homicide
CRIME MURDER DEFENCE OF MENTAL HEALTH IMPAIRMENT WHERE PARTIES AGREE DEFENCE AVAILABLE JUDGE ALONE TRIAL SPECIAL VERDICT

Citation: R v Tonga [2021] NSWSC 1064
Court: Supreme Court of New South Wales
Date: 25 August 2021
Judge: Wilson J

Background

The accused was charged with the murder of Juan Miguel Cervantes, alleged to have occurred on 11 August 2019 at Eastern Creek, New South Wales. The accused struck the deceased in the head with a screwdriver, inflicting a fatal wound. It was not in dispute that this voluntary act caused the death.

The accused and the deceased had been together in a backyard shed at the accused's home when the fatal attack occurred. In the hours beforehand, the accused had sent messages to his partner acknowledging he was "not well" and needed his injection, a reference to his psychiatric medication. The accused had a documented history of schizophrenia and had ceased taking prescribed anti-psychotic medication while also using methylamphetamine.

The trial proceeded before a judge alone. An earlier application for a judge-alone trial had been refused in December 2020, but a subsequent application was granted in August 2021 because Public Health Orders arising from the Delta variant of COVID-19 prevented a jury of twelve from convening.

  • Which legislative framework governed the mental health impairment defence: the repealed Mental Health (Forensic Provisions) Act 1990 (NSW) or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)?
  • Whether the physical elements of the offence of murder were proven beyond reasonable doubt.
  • Whether the defence of mental health impairment was established, such that the accused was not criminally responsible for the killing.

Decision

Applicable legislation: Wilson J first resolved which statutory scheme governed the defence. The 2020 Act commenced on 27 March 2021 and contains transitional provisions preserving the 1990 Act for proceedings that commenced before that date. Her Honour held that "commencement of proceedings" refers to the commencement of the trial proceedings before the Supreme Court, meaning the presentation of the indictment on 23 August 2021. Accordingly, the 2020 Act applied.

Physical elements of murder: The accused did not dispute that his voluntary act caused the death of the deceased. Wilson J was satisfied beyond reasonable doubt that the accused struck the deceased to the head with a screwdriver, inflicting the fatal injury. The physical elements of murder were therefore established.

Mental health impairment defence: Two forensic psychiatrists gave unchallenged evidence that the accused suffered from serious and enduring schizophrenia, meeting the definition of "mental health impairment" in s 4 of the 2020 Act. While his failure to take prescribed medication and his use of methylamphetamine worsened his condition, those factors did not diminish the significance of the underlying illness. Wilson J found that, although the accused knew the nature and quality of his act (evidenced by his immediate call for an ambulance and his acceptance he would "go away for a long time"), he did not know his act was wrong. His capacity to reason about wrongfulness was so impaired that he was precluded from reasoning with a moderate degree of sense and composure. The defence was made out.

Orders Made

  • The Court entered a special verdict of "act proven but not criminally responsible" on the indictment charging the accused with the murder of Juan Miguel Cervantes on 11 August 2019 at Eastern Creek.

Key Takeaways

  • Under the transitional provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the "commencement of proceedings" for the purpose of determining which statutory regime applies to a mental health impairment defence refers to the commencement of the trial proceedings themselves, not the date of charge or first court appearance.
  • A special verdict of "act proven but not criminally responsible" is available where the physical elements of murder are established but the accused is found to have been suffering from a mental health impairment that precluded them from knowing their act was wrong.
  • The test for the mental health impairment defence, drawn from The King v Porter (1933) 55 CLR 182, requires that the accused's capacity to reason about the wrongfulness of the act was so impaired that they were precluded from reasoning with a moderate degree of sense and composure.
  • Contributory factors such as voluntary drug use and failure to take prescribed medication do not necessarily defeat the defence where a serious and enduring underlying mental illness independently satisfies the statutory definition.
  • COVID-19 Public Health Orders preventing a jury of twelve from convening constituted a material change in circumstances sufficient to support a renewed application for a judge-alone trial, where an earlier application on different facts had been refused.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Mental Health Act 2007 (NSW)

Cases:
- R v Tonga [2020] NSWSC 1829 (earlier refusal of judge-alone application)
- The King v Porter (1933) 55 CLR 182; [1933] HCA 1 (foundational authority on the mental illness/impairment defence)