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Supreme Court 8 May 2020

R v Choi

[2020] NSWSC 496

Other
CRIMINAL PROCEDURE MENTAL HEALTH FITNESS HEARING WHERE PLAINTIFF FOUND FIT TO BE TRIED

Citation: R v Choi [2020] NSWSC 496
Court: Supreme Court of New South Wales
Date: 8 May 2020
Judge(s): Harrison J

Background

The accused was on remand facing eight charges under three Commonwealth statutes, broadly involving allegations of brokering services in connection with North Korean weapons, arms, and commodities in contravention of international sanctions. The charges related to conduct said to have occurred across a period in 2017. The matter had been listed for trial before Harrison J and a jury in February 2020.

At a directions hearing on 17 February 2020, defence counsel raised concerns about the accused's fitness to plead and stand trial. Harrison J directed that the accused be examined by a forensic psychiatrist. Dr Stephen Allnutt conducted two remote examinations via video link from Long Bay Hospital, assisted by a Korean interpreter, on 22 February and 7 April 2020.

Dr Allnutt's report, dated 15 April 2020, was tendered by the Crown at a hearing held by video link on 5 May 2020. Dr Allnutt was cross-examined by counsel for the accused.

  • Whether the accused was fit to be tried for federal offences, assessed under the principles in R v Presser [1958] VR 45
  • Whether the accused's belief that the charges were politically motivated, and his distrust of his own lawyers, rendered him unfit
  • Whether a prima facie case had been established that the accused committed the charged offences

Decision

Harrison J applied the Presser criteria, which require that an accused person be able to understand the charges, enter a plea, exercise the right to challenge jurors, follow the proceedings generally, mount a defence, and instruct counsel. The determination was made on the balance of probabilities under s 6 of the Mental Health (Forensic Provisions) Act 1990 (NSW), with the judge deciding the question alone under s 11 of that Act.

Dr Allnutt's opinion was that the accused, even if suffering from a delusional disorder and a chronic adjustment disorder with depressed and anxious mood, was probably fit to stand trial and probably fit to run his own trial. A residual concern was identified: the accused's belief that his lawyers were conspiring with the Australian Government meant his capacity to instruct counsel was compromised, though Dr Allnutt did not consider this foreclosed the ability to instruct counsel entirely.

Harrison J accepted Dr Allnutt's assessment on each of the Presser elements. The court found that the accused understood the charges, understood the plea process, grasped the right to challenge jurors (including the strategic advantage of doing so), and had articulated a clear intention to plead not guilty and mount a defence. Although the accused stated he intended to dismiss his lawyers and represent himself, that choice did not bear on fitness. The court noted that whether the accused chose to instruct counsel, and the reasons why distrust might affect that choice, were separate from the question of capacity to do so.

On the prima facie case, Harrison J was satisfied that the material in the 195-page statement of facts, if proved, would establish a prima facie case for each offence charged. The court was careful to note that no view had been formed as to the accused's guilt or innocence.

Orders Made

• Mr Choi is fit to be tried for the offences with which he stands charged.

Key Takeaways

  • The Presser test remains the applicable standard for fitness to stand trial in New South Wales, requiring satisfaction across six distinct criteria, each assessed on the balance of probabilities.
  • A belief that criminal charges are politically motivated does not, of itself, render an accused person unfit to stand trial, provided the accused otherwise demonstrates sufficient understanding of the proceedings and the charges.
  • Compromised capacity to instruct counsel, arising from suspicion or distrust of lawyers, is distinguishable from a complete inability to instruct counsel; the latter is the relevant threshold under Presser.
  • An accused's stated intention to self-represent is a separate matter from the question of fitness, and does not affect the fitness determination.
  • Under s 11 of the Mental Health (Forensic Provisions) Act 1990 (NSW), fitness is determined by the judge alone, and the determination must set out the principles of law applied and the findings of fact relied upon.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 11
- Crimes Act 1914 (Cth), Part 1B Div 6, ss 16, 20B(3)(b)
- Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth), s 11
- Autonomous Sanctions Act 2011 (Cth), s 16
- Autonomous Sanctions Regulation 2011 (Cth), r 13
- Charter of the United Nations Act 1945 (Cth), s 27
- Charter of the United Nations (Sanctions – Democratic People's Republic of Korea) Regulations 2008 (Cth), r 11

Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- Berg v Director of Public Prosecutions [2016] 2 Qd R 248; [2015] QCA 196