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Supreme Court 18 August 2011

R v Chong

[2011] NSWSC 914

Homicide
CRIMINAL LAW MURDER JUDGE ALONE TRIAL FITNESS HEARING

Citation: R v Chong [2011] NSWSC 914
Court: Supreme Court of New South Wales
Date: 18 August 2011
Judge: Fullerton J

Background

The accused was charged with the murder of Jing Hwa Park, alleged to have occurred on 17 May 2009 at a shared workplace. Police identified the accused as a person of interest based on evidence of a significant and sustained conflict between him and the deceased in the weeks before the death. The accused himself had alerted police to the deceased's body.

Shortly after being interviewed by police in July 2009, the accused was involved in a serious motor vehicle collision. He drove into the path of an oncoming truck on a major road in Western Sydney and sustained a traumatic head injury, resulting in very substantial and apparently permanent brain damage. His Court Attendance Notice was served on him while he was in hospital, after which he was remanded in custody.

By the time of the fitness inquiry, the accused was 69 years old, had no family support, was subject to a Limited Guardianship Order, and was residing in the prison hospital at Long Bay Correctional Centre. He was reported to have no meaningful understanding of why he was in custody, frequently requesting to leave and return to Perth.

  • Whether the accused was fit to be tried on the murder charge, having regard to his severe cognitive impairments following the traumatic brain injury
  • Whether his deficits satisfied the test for unfitness established in R v Presser

Decision

Fullerton J determined that the accused was unfit to be tried, applying the test from R v Presser [1958] ALR 248. That test requires an accused to be able, among other things, to understand the nature of the proceedings, follow the trial process, and give meaningful instructions to legal representatives.

Two independent forensic psychiatrists, Dr Nielssen (retained by the defence) and Dr Allnutt (retained by the Crown), were in agreement that the accused could not meaningfully participate in a criminal trial. Testing revealed impairment across all cognitive domains, including short-term memory, concentration, verbal fluency, and visuo-spatial skills.

Fullerton J was satisfied that the accused's capacity to follow trial proceedings, provide instructions to his lawyers, understand the effect of the evidence against him, and make informed decisions about his defence was severely compromised. His age and the cultural and language difficulties arising from his Korean background were noted as additional contributing factors.

The court was also satisfied that the accused's cognitive deficits were likely permanent, notwithstanding some improvement in his capacity to manage daily living tasks in custody. Neither psychiatrist was able to determine whether the accused also had an underlying psychiatric disorder separate from the brain damage.

Orders Made

  • A determination under s 10 of the Mental Health (Forensic Provisions) Act 1990 that the accused was unfit to be tried
  • Orders made in accordance with s 14 of that Act (the specific terms of those orders are not detailed in the published reasons)

Key Takeaways

  • The Supreme Court applied the Presser test and found that severe, likely permanent cognitive impairment resulting from a traumatic brain injury rendered an accused unfit to stand trial for murder.
  • Under the Mental Health (Forensic Provisions) Act 1990, a judge conducting a fitness inquiry under s 10 is required by s 11 to publish the principles of law applied and the findings of fact relied upon.
  • Agreement between prosecution and defence forensic psychiatrists on the nature and extent of cognitive impairment was a significant feature of the evidentiary foundation for the unfitness determination.
  • Unfitness assessments can encompass multiple compounding factors: organic brain damage, age, and cultural or language difficulties may each bear on an accused's capacity to participate meaningfully in proceedings.
  • A finding of unfitness does not terminate proceedings; s 14 of the Act provides a framework for what follows, including ongoing review of the accused's condition.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 10, 11, 14

Cases
- R v Presser [1958] ALR 248 (the foundational test for fitness to stand trial in Australian law)