R v James Va’a Tui

1. [1]

   The accused James Va'a Tui is charged with the murder of Faatalatala Faalava at Shalvey on 16 July 2016. A trial date has not yet been fixed, and a question has been raised as to the accused's fitness to be tried for the offence.

2. [2]

   This is an inquiry as to whether or not he is unfit to be tried. The provisions of Part 2 of the Mental Health (Forensics Provisions) Act 1990 (‘the Act’) apply. I have been provided with the benefit of written submissions on behalf of both the Crown and the accused. The question of whether a person is fit to be tried is determined in accordance with the well-known criteria set out in R v Presser [1958] VR 45 at 48, as approved in Ngatayi v R (1980) 147 CLR 1 and Kesavarajah v R (1994) 181 CLR 230.

3. [3]

   The principles to be applied are set out in Presser by Smith J as follows:

4. [4]

   Tendered without objection are two reports authored by forensic psychiatrists. The first, Dr Jonathan Adams dated 6 February 2017 related to an assessment of the accused he carried out on 30 January 2017. The second, Dr Adam Martin is dated 24 August 2017 and related to an assessment he conducted of the accused on 3 August 2017. Dr Martin also carried out an analysis of the brief of evidence and the medical records of the accused, including recent records from Justice Health.

5. [5]

   As is clear in the written submissions provided for both the Crown and the accused, there is common ground that the accused fails to meet the minimum requirements of Presser and is currently unfit to be tried for the offence of murder. This issue is to be determined on the balance of probabilities (s 6) and there is no onus cast on either party in that respect (s 12(3)). The proceedings are by way of inquiry not to be conducted in an adversarial manner (s 12(2)).

6. [6]

   The two psychiatrists who assessed the accused are clearly of the view that the Defendant is unfit to be tried.

Dr Adams

1. [7]

   Dr Adams observed, in the opening paragraph of his report under the heading “Clinical Assessment”:

2. [8]

   Dr Adams also observed during his assessment that Mr Tui was clearly experiencing symptoms of psychosis:

3. [9]

   Under the heading Mental State Examination, Dr Adams observed the following:

4. [10]

   And:

5. [11]

   Dr Adams concluded that it was evident from reviewing the Community Mental Health Record that the accused had a longstanding diagnosis of schizophrenia, and his clinical presentation at the time of the assessment was consistent with that diagnosis.

6. [12]

   On the question of fitness to stand trial, Dr Adams concluded as follows:

7. [13]

   On the question of any potential improvement, Dr Adams said:

Dr Martin

1. [14]

   Dr Martin, who was retained on behalf of the Crown, had the benefit of a review of the Justice Health records. In his report of 24 August 2017 he describes the accused as:

2. [15]

   After attempting to undertake a psychiatric history from the accused, Dr Martin carried out a Mental State Examination in respect of which he noted the following:

3. [16]

   Dr Martin observed that hospital discharge summaries associated with the accused indicated that there had been a Clozapine prescription back to 1988, and that various records regarding the accused's psychiatric health indicated a long history of treatment resistant schizophrenia.

4. [17]

   Recent Justice Health medical records included a Schedule document prepared by a Dr White (Psychiatry Career Medical Officer) dated 22 July 2016 noting that the accused was then presenting as “grossly thought disordered, agitated, aggressive and disorganised”.

5. [18]

   More recent Justice Health medical notes documented an admission to the Long Bay Hospital under the care of psychiatrist Dr Farrar, and a document in April 2017 noted a presentation of ongoing psychosis, delusions, thought disorder and perceptional abnormalities.

6. [19]

   Dr Martin concluded that the history that Dr Adams had obtained in January 2017, together with the Mental State Examination, and findings around fitness, were very similar to his own and on the question of fitness, Dr Martin concluded as follows:

7. [20]

   Dr Martin concluded that:

8. [21]

   The psychiatric reports clearly indicate that the accused fails to meet the minimum requirements of Presser, and that he is currently unfit to be tried for the offence of murder and likely to remain so for at least 12 months. Accordingly, I am of the view that the orders sought should be granted as follows:

   1. (1)

      The accused James Va'a Tui is unfit to be tried for the offence of the murder of Faatalatala Faalava on 16 July 2016.

   2. (2)

      In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal.

   3. (3)

      Pursuant to s 14(b)(iii) of that Act, I remand the accused in custody pending the determination of the Mental Health Review Tribunal's decision under s 16 of that Act.

   4. (4)

      I direct the Supreme Court Registry to provide the following documentation to the Tribunal: