Russell John Tully v R

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] NZCA 690
• Court: Court of Appeal
• Docket Number: CA288/2016
• Date: 21 December 2020

Between

Russell John Tully

Appellant

and

The Queen

Respondent

[2020] NZCA 690

Court:

Miller, Venning and Katz JJ

CA288/2016

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal, Criminal Sentence — appeal against convictions for murder, attempted murder and sentence of life imprisonment with a minimum period of imprisonment of 27 years — fitness to stand trial — defence of insanity — fair trial — representation — exclusion from proceeding — Criminal Procedure (Mentally Impaired Persons) Act 2003 — Criminal Procedure Act 2011 — Sentencing Act 2002

Counsel:

Appellant in person

M J Lillico and R K Thomson for Respondent

CWJ Stevenson as Counsel assisting the Court

• A The application for leave to admit new evidence on appeal is granted.

• B The appeals against conviction and sentence are dismissed.

JUDGMENT OF THE COURT

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]

1 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.

2 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.

3 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.

4 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

5 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

6 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.

7 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.

8 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

9 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.

10 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.

11 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.

12 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.

13 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.

14 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...