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Supreme Court 8 April 2024

R v Yeon

[2024] NSWSC 360

HomicideDomestic & family violencePublic order & justice offences
MENTAL HEALTH CRIMINAL PROCEEDINGS FITNESS TO BE TRIED

Citation: R v Yeon [2024] NSWSC 360
Court: Supreme Court of New South Wales
Date: 8 April 2024
Judge(s): Chen J

Background

The accused was charged by indictment with the murder of his stepmother at a rural property in Greendale, NSW, between 26 and 30 December 2022. He was also charged on a certificate under section 166(1)(b) of the Criminal Procedure Act 1986 (NSW) with knowingly contravening a prohibition in an Apprehended Domestic Violence Order.

When the matter was first listed before the Supreme Court in December 2023, the accused's fitness to stand trial was raised. He was not arraigned, and the court fixed an inquiry under Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act) to determine whether he was unfit to be tried.

Both the defence and the Crown retained consultant forensic psychiatrists to examine the accused. Each expert concluded, independently, that the accused suffered from a severe, chronic, treatment-resistant schizophrenic illness and was unfit to be tried.

Legal Issues

  • Whether the accused was unfit to be tried under section 36 of the MHCIFP Act because of a mental health impairment.
  • Whether any of the considerations in section 44(5) of the MHCIFP Act altered the conclusion on unfitness.
  • Whether, on the balance of probabilities, the accused would become fit to be tried within 12 months of the finding of unfitness, or would not become fit within that period, as required by section 47(1) of the MHCIFP Act.

Decision

Issue 1: Mental health impairment

Chen J accepted the evidence of both experts, Dr Andrew Ellis and Dr Jeremy O'Dea, finding that the accused has a mental health impairment within the meaning of section 4(1) of the MHCIFP Act. Although the two psychiatrists used slightly different diagnostic labels, their findings on the manifestation of symptoms were essentially the same, and the court treated the diagnoses as equivalent (at [20]).

Issue 2: Unfitness to be tried

The court found that the accused was unable to do each of the prescribed matters in section 36(1) of the MHCIFP Act, with the possible exception of the matter in section 36(1)(f) (at [21]). While neither expert had expressly addressed the additional considerations in section 44(5), the court accepted the joint submission of the parties that a reasonable inference could be drawn that those considerations would not alter either expert's opinion, given the nature and extent of the accused's disabilities (at [22]). The court was satisfied that the accused is unfit to be tried for both the murder charge and the related section 166 charge because of his mental health impairment (at [23]).

Issue 3: Fitness within 12 months

Chen J noted that prior decisions suggest a finding under section 47(1)(b), that an accused "will not become fit", requires a high degree of satisfaction, approaching real certainty about the accused's continued unfitness during the 12-month period (at [24]). Both experts emphasised the chronic and treatment-resistant nature of the accused's illness when opining that he would not become fit within 12 months, and both the Crown and the defence submitted the court should make that finding. The court accepted the expert evidence and found that the accused will not become fit to be tried within 12 months of the finding of unfitness (at [26]).

Orders Made

  • The accused is found unfit to be tried under section 36 of the MHCIFP Act for the murder charge and (to the extent necessary) the section 166 charge.
  • On the balance of probabilities, the accused will not become fit to be tried within 12 months of the finding of unfitness, pursuant to section 47(1)(b) of the MHCIFP Act.
  • The accused is remanded in custody.
  • The matter is listed in the arraignments list on 3 May 2024 for allocation of a date for a special hearing.
  • The Director of Public Prosecutions is directed to advise whether further proceedings (a special hearing) will be taken in relation to the murder charge.

Key Takeaways

  • Under section 38 of the MHCIFP Act, unfitness to be tried is determined on the balance of probabilities, and the onus does not rest on any particular party; the inquiry is not conducted in an adversarial manner (at [7]).
  • A finding under section 47(1)(b) that an accused "will not become fit" within 12 months requires a high standard of satisfaction, described in earlier Supreme Court decisions as approaching real certainty about the accused's continued unfitness during that period (at [24]).
  • Where neither expert expressly addressed the section 44(5) considerations, the court was prepared to draw a reasonable inference, accepted by both parties, that those considerations would not have altered the experts' conclusions, particularly given the severity and extent of the accused's inability to meet the section 36(1) criteria (at [22]).
  • Diagnostic differences between experts do not necessarily prevent a court from treating their conclusions as equivalent, where the underlying symptom presentation is materially the same (at [20]).
  • The chronic and treatment-resistant character of a schizophrenic illness was central to the court's satisfaction that the accused would not recover fitness to be tried within the 12-month statutory period (at [26]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW)
- Mental Health Act 2007 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- R v Risi [2021] NSWSC 769
- R v Woodham [2022] NSWSC 1154