R v He

Supreme Court of NSW|2022-06-22|Before: Wilson J

Judgment

HER HONOUR: On 27 June 2020 Liqun Pan died after having been brutally attacked by an individual wielding two knives and a hammer. The injuries she sustained were extensive. The accused, Weijie He, was later charged with Ms Pan's murder. He was arraigned on that charge in this Court on 4 March 2022.
An issue of the accused's fitness to stand trial having been raised during the arraignment proceedings the Court determined that an inquiry should be held prior to any trial to consider the question of the accused's fitness. That inquiry commenced on 20 June 2022.

The Legal Framework

The statutory framework for the determination of the question of the accused's fitness is provided by Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("MHCIFP Act"): s 35.
The MHCIFP Act applies to a person who has a mental health impairment or a cognitive impairment. It is the latter that is relevant to this inquiry, there being no issue that the accused has a cognitive impairment within the meaning of the Act, as a consequence of a severe traumatic brain injury ("TBI") he sustained on 27 June 2020. Section 5 of the Act defines a cognitive impairment in these terms: 5 Cognitive impairment (1) For the purposes of this Act, a person has a cognitive impairment if - (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

The Evidence

The evidence placed before the Court by the parties was largely in documentary form, supplemented by oral evidence from three expert witnesses, Drs Susan Pullman, Adam Martin, and Olav Nielssen.

Crown Case Statement, Lay Witnesses

A summary of the factual allegations concerning the death of Ms Pan and the days immediately before that event was before the Court as Ex. A.2, supplemented by statements and notes from Lina Sun (Exs. A.14 and A.16) and Lei Sun (Exs. A.15 and A.16). It is not necessary for the purposes of this inquiry to replicate the full contents of that evidence here. In brief, the accused and Ms Pan formed a relationship after meeting in their native China. They each travelled to Australia in late 2018, intending to study in Sydney. The accused and Ms Pan rented an apartment in Wolli Creek, where they lived together in a domestic relationship.
There is some evidence that the relationship may have been a controlling one, with some disharmony between the couple in June 2020 observed by acquaintances who spent some time with the accused and Ms Pan, shortly before Ms Pan was killed.
On 26 June 2020 the accused had dinner with those acquaintances, Lei Sun and Lina Sun. The Suns thought the accused was saying strange things and noticed that he drank almost an entire bottle of wine at speed. He referred to himself as "too good" for Ms Pan and said that he did not wish to be with her anymore. He acknowledged that he had been using nitrous oxide gas recreationally since 2015. The Suns thought that the accused's behaviour was odd and abnormal. The accused spent that night at their home as he said that he did not wish to go home to Ms Pan.
That same night at the apartment the accused and Ms Pan shared, Ms Pan was in touch with friends using her mobile telephone. She sent one friend an image of what appears to be - at least - many hundreds of cannisters, asserting that the accused had used the [nitrous oxide] gas within them over the previous two days.
The following day, 27 June 2020, Lei Sun and Lina Sun dropped the accused off in the vicinity of his apartment, just after 1:30pm. They had been frightened by his strange behaviour that day, and he had threatened to "destroy" them. After they drove off, the accused had some trouble entering his apartment building, apparently because he could not remember the entrance code. He eventually followed another resident into the building and made his way to his apartment. Ms Pan sent a message to a friend soon after, at 1:51pm, saying that the accused was home, and that he was "like another person". Ms Pan last used her mobile telephone at 2:04pm that day.
At some time after 2:04pm and before 3:23pm the Crown alleges that the accused attacked Ms Pan, inflicting more than 75 separate injuries upon her, using two knives and a clawed hammer. The accused's fingerprints - one of which was imprinted in Ms Pan's blood - and DNA were found on the weapons, and his DNA was recovered from fingernails on both of Ms Pan's hands. No forensic evidence that could link any other person to Ms Pan's death was found.
At 3:23pm the accused's prone body was found on the footpath on Chisolm Street at Wolli Creek. It appears as if the accused jumped from the fourth story of his apartment block, landing on the pavement below. He suffered life threatening injuries in the fall; he also had a deep wound to his left wrist consistent with a suicide attempt.
The accused was admitted to an intensive care unit for treatment of his injuries, remaining in intensive care until 5 August 2020. Whilst hospitalised the accused is alleged to have made admissions to killing Ms Pan, including to a hospital worker, to whom the accused said (in writing, as he could not then speak) that he was in hospital because [he had] "kill girl". He later told his mother that he had stabbed "Panpan", his name for the deceased, and killed Panpan. Conversations between the accused and his parents were recorded by authority of a warrant.
The listening device recording the accused's conversations also captured other discussions between him and his parents in which his parents repeatedly urged him to tell no-one that he had "beaten" and killed Ms Pan, but instead to say he had no memory of the events surrounding Ms Pan's death, and "play the script". In a conversation on 8 October 2020, after the accused had been seen by a psychiatrist, Liu He urged the accused, "Even you know the answers, you need to give them the wrong answer. Remember? You need to show that you have problems in the brain". There were several conversations along these lines intercepted in September and October 2020.
The accused was charged with Ms Pan's murder on 20 January 2021. When charged, he said to investigators, "I would like to say she accompanied me every day and I loved her very much, I did not hurt her, I did not murder her".

Medical Evidence

Several medical reports prepared for clinical purposes by the accused's treating doctors and other health professionals were before the Court.
On 14 October 2020 the accused was assessed (by cognitive screening) by Ms Bzishvili, Clinical Neuropsychologist, with the assistance of a Mandarin interpreter. In her report Ms Bzishvili noted that, after a fall on 27 June 2020, the accused was found with a Glasgow Coma Score of 4, deteriorating to 3 at the scene. On admission to hospital, he was found to have sustained spinal fractures, and significant pelvic and other internal injuries. The accused also suffered a severe TBI with right side subdural haemorrhage and midline shift. He required multiple surgical procedures. On 4 September 2020 the accused scored 12/12 in a test of Post Traumatic Amnesia, amnesia that had lasted 70 days, indicative of an "extremely severe" TBI.
When Ms Bzishvili spoke to the accused on 14 October 2020 he reported ongoing confusion, commenting that "Everything seems very strange". He said he had difficulties remembering his doctors and what he had been told by doctors. Although he said he reacted slowly he felt that he could "follow conversations". He was able to give what appears to have been a relatively comprehensive account of his personal history and background, including details as to his family, education, and move to Australia (Ex. A.9, page 81).
The accused "demonstrated very superior immediate attention skills"; his "working memory" fell in the low-average range. In summary Ms Bzishvili observed: "Assessment revealed that [the accused] has significant deficits in the areas of processing speed, verbal learning and memory, and perceptual abilities (though this may be secondary or in addition to visual problems). He demonstrated a personal strength (and potentially preserved) ability in immediate attention span, and relatively preserved working memory skills (although these fall in the broader average range, it is likely a reduction from his premorbid ability). Behaviourally, perseveration was noted, which at times, appeared to impact his ability to sustain his attention over longer periods of time."
It was thought that further improvement in the accused's condition was likely in the 6 to 12 months from October 2020.
Ex. A.10 is a "hand over" progress report from Royal Rehab, dated 20 April 2021. Although the report, prepared by a Rehabilitation Registrar, was largely directed to the accused's physical condition, Dr Vikram Joshi noted that the accused had impairments to higher executive functioning and limitations with memory and attention.
A Neuropsychological Report (Ex. A.11) from a Registrar of Clinical Neuropsychology, Robert Ruane, at the same institution, was more detailed as to the accused's neurological recovery as at March to May 2021, being based upon 6 one-hour interviews. The accused said that he had no recollection of the fall that led to his injuries. He said his last memory was of returning home and hugging his girlfriend, whose chest he noticed to be "filled with blood". He said he was taken to the fourth floor of his building where "an old man" pushed him off. He recalled police taking him to hospital.
The accused reported reduced memory for recent information and "subtle changes in his speed of thinking and reaction times" (Ex. A, p.88). He was able to provide a clear account of his personal and family background and circumstances. The accused denied use of illicit substances and said that prior to his injury he rarely drank, "with a poor tolerance for it".
On assessment the accused reported understanding 60% of what was said to him in English, and his expressive and language skills were regarded as adequate when he also had the assistance of a Mandarin interpreter. He was well oriented to "person and place", but inconsistent as to time. There was "some evidence of fluctuations in effort" during the assessment. There was some concern as to the efficacy of the accused's prescription for spectacles, with a review suggested. It was noted in the report that there was little, or no benefit detected in the accused's test performance from wearing his spectacles.
On assessment of the accused's capacity to attend to events it was noted that: "Overall, [the accused] demonstrated relatively intact functioning across tasks assessing his auditory attention. His ability to sustain his concentration over a prolonged duration remained intact. When assessed in Mandarin his immediate auditory attention span placed above average for his age. In keeping with his previous assessment, [the accused] was able to recall an 8 digit span forwards. When assessed in English, his immediate auditory attention span placed in the low average range for his age. In contrast to his strengths in auditory attention, his ability to analyse and attend to find visual detail placed in the impaired range for his age."
The accused's performance on tests of working memory - the ability to hold and manipulate information in mind - placed him in the average range for his age. In mental arithmetic he was placed in the high average range for his age cohort. The accused was found to be impaired in analysis and reconstruction of spatial patterns. On tests of memory the accused displayed a "poor performance" far below expectations on tasks, and his recall of visual information was impaired. Mr Ruane observed that the accused's recall "was unreliable, characterised by endorsing a high rate of false positive items" (Ex. A.11, p.90). His performance on tasks related to executive function varied.
In a report of 17 June 2021 to the accused's solicitor, Dr Clayton King, Rehabilitation Physician, opined that the accused: "does not have the mental capacity to give clear and fully informed instructions regarding his care and to his legal representatives" (Ex. A.12, p.95).

Instructions to Lawyers

The accused read an affidavit from his solicitor, Mr Szeto, sworn on 8 June 2022. Mr Szeto said that he was retained in December 2020 and has had multiple meetings with the accused since then. Their conversations are conducted in both English and Mandarin and Mr Szeto expressed confidence that the accused understood "what transpired in [their] conversations". Despite that, Mr Szeto has found it difficult to obtain a clear account of relevant events from the accused. The accused told Mr Szeto that he did not murder his girlfriend, but said that he does not remember what happened. He did recall being pushed from his apartment building by another person and said he could identify that person if given access to his mobile telephone. At another conference the accused told Mr Szeto that he was pushed from his building because he saw his girlfriend being killed and her killer knew he had witnessed the killing. When asked about forensic evidence, the accused said only that he did not know, and someone must have "framed" him.
In a conference earlier this month the accused told Mr Szeto that his next court appearance concerned the recovery of his mobile telephone. When told by Mr Szeto that the hearing was to test his capacity, the accused said that he understood that to mean a test of his abilities to walk and urinate. He told Mr Szeto that he could not remember the events of 27 June 2020. He could explain forensic evidence, telling his solicitor that police had evidence of his fingerprints, blood, and DNA because he and Ms Pan had lived together. Mr Szeto concluded: "[The accused] has not been able to give me a clear account of events. He has not been able to explain what he had been doing or [who] he was with around the time of the incident. He has not been able to provide me with an explanation for the murder of the deceased or a response to the evidence against him" (Affidavit, 8 June 2022, [19]).

The Medico-Legal Evidence

The accused has been assessed by two forensic psychiatrists and a forensic neuropsychologist for the purposes of these proceedings.
Dr Olav Nielssen, psychiatrist, saw the accused on two occasions at the request of Mr Szeto. The first consultation was on 12 July 2021 by audio-visual link, and the second, conducted by the same method, was on 3 May 2022. Dr Nielssen prepared two reports, on 15 July 2021 and 5 May 2022 respectively, each of which was in evidence (tendered by both the Crown and accused: Exs. A.6 and A.7; Exs. 1.2 and 1.3). Dr Nielssen's opinion is that the accused is unfit to stand trial.
In his first report Dr Nielssen noted that the accused seemed to speak fluently and spontaneously. He gave the doctor an account of another person killing Ms Pan and throwing him from the building. He would not countenance other possibilities since he had no personal memory of the events. He denied experiencing any symptoms common in psychotic illness.
In considering the criteria set out in s 36(1) of the MHCIFP Act, Dr Nielssen considered the accused to be unable to: follow the course of the proceedings at any trial - s. 36(1)(e); understand the substantial effect of evidence given against him - s 36(1)(f); or provide reliable instructions - s 36(1)(h).
Dr Nielssen also thought that it was possible that the accused was affected by a psychotic illness at the time of Ms Pan's death, based upon the oddities in his behaviour at about this time reported by Mr Sun and Ms Sun; the ferocity of the alleged offence; and the apparent suicide attempt that followed it. In this regard he referred to research of his into the rates of homicide during a first experience of psychosis [1] , and the incidence of psychosis and suicide by jumping from a height [2] . The accused had no symptoms of psychosis when Dr Nielssen saw him.
Dr Nielssen prepared his second report after having been provided with the reports of Drs Pullman and Martin, each of which raised or noted the possibility of malingering. When asked about this by Dr Nielssen, the accused said that he had done his best to answer questions and he denied being prompted by his mother as to how to answer questions during assessments.
As he did when he first saw the accused, Dr Nielssen concluded that the accused had a severe TBI. He did not think that the accused had a mental illness, there being no evidence of a psychotic illness or a severe mood disorder. The accused's cognitive functioning remained impaired due to injury, and Dr Nielssen continues in the view that the accused is unfit. Whist the accused maintains the basic understanding of most of the matters referred to in s 36(1) of the MHCIFP Act that he demonstrated when speaking with Dr Nielssen in 2021, the doctor concluded that the accused is still unable to follow court proceedings, understand the effect of evidence, or provide "reliable or rational instructions" to lawyers (Ex. A.7, p. 71). As to the latter, Dr Nielssen observed that, whilst the accused: "was assessed to [be] able to decide on which defence to rely on […] it was not clear that he had addressed the allegations or that his defence was rational" (Ex. A.7, p.72).
In evidence to the Court on 21 June 2022 Dr Nielssen said that, even if the accused had not tried his best in tests administered to him, it did not follow that he was fit to be tried, because: "[…] the problem with his fitness is his ability to give rational instructions that can be acted on including his ability to consider the evidence against him and make a rational response to that and to also consider the advice he has received from legal representatives and give them a rational kind of response that they can then use as a basis for representing him" (T31:07 - 11).
Dr Nielssen regarded the accused's unrealistic and inflexible responses to questions concerning the death of Ms Pan as a product of cognitive impairment perhaps complicated by an underlying psychotic illness. He considered that the accused was unfit because of his impaired capacity to understand the case against him and instruct his lawyers, and he did not consider there to be any steps that the court could take to modify the trial proceedings as likely to improve the position.
Although Dr Nielssen understood that fitness is an assessment relevant to an accused's current status, he thought that the possibility of the accused having suffered a psychotic illness at the time of Ms Pan's death might nevertheless have some present relevance: "Q. In what way, if at all, would a psychotic state at the time of offending impact upon his fitness to plead? A. Well, not at the time of offending, it has no relevance because it is his current state that determines his fitness. How it might be relevant is that he had ongoing unrealistic illness arising from psychosis as much as from the brain injury. For example, delusional ideas about what actually happened and those ideas could affect his fitness in the sense of his ability to respond to the evidence and give rational instructions" (T33:13).
In cross-examination Dr Nielssen accepted that, whilst his concern was that the accused could not give his lawyers "rational" or "workable" instructions, those more qualitative notions did not form part of the statutory test for fitness. He agreed that it was not uncommon for accused persons to provide instructions that others might regard as irrational or unreasonable. The doctor conceded that, whilst neither he nor Mr Szeto had been able to obtain an account of relevant events from the accused, others had, and the accused had been able to provide an apparently sensible response to aspects of the Crown case.
The following evidence was given, at T39:21-50: "Q. Dr Martin recounts what he characterises as a narrative version of events, which was elaborated on by saying, and Dr Martin records: "He and his girlfriend had met with other people who had wanted him involved in a car rental business and that over dinner while intoxicated that they had disclosed to He and his girlfriend that they had performed offences in China and that if they were to return to China that they would face capital punishment and essentially inferred that these people might have been worried that He and his girlfriend knew too much." And what I am suggesting to you is that that is a detailed narrative version of what the accused's defence is? A. Well, firstly I don't know whether, is it essentially inferred to Dr Martin or, or, I don't quite understand whether they were, whether Dr Martin is kind of inferring it or whether ‑ I mean, I don't quite follow but I don't think that's adequate. I mean, if you were a lawyer saying "I just want to take you to all this other evidence, can you tell me about that", it's just not enough to act on in my view. So it doesn't change my opinion that he is not able to give instructions. Q. But he has given instructions, or let's assume that those are the instructions that he gives to his lawyers? A. Yes. Q. They are instructions; it's just again that qualitative issue that they don't appear to be reliable or rational in your view? A. That's right. It's not a two way conversation about the case with Mr He based on my short experience and I don't think just having acquired some kind of explanation in his own mind is not sufficient for him to be able to make a defence to the charges, in my opinion."
Dr Adam Martin saw the accused via an audio-visual link on 8 December 2021, assisted by a Mandarin interpreter. The accused gave Dr Martin an account of his background and personal circumstances, including information as to the nature and duration of his relationship with Ms Pan. He provided details of his daily activities, which are limited due to his physical disability. He does, however, chat with his cellmate, whose company he enjoys, and watches television.
The accused said he had used an anti-depressant medication in high school, but not thereafter. He "did not disclose experience of psychotic phenomena" (Ex. A.7, p.31). He reported short-term memory problems. On assessment the accused responded to questions coherently and logically, and he appeared to be of reasonable intelligence. Dr Martin observed that the accused: "[…] presented as alert, reasonably oriented to time and his situation, and appeared able to concentrate over 75 minutes without seeming distractible, and generally answering appropriately" (p.34).
With respect to fitness Dr Martin was satisfied that the accused understood the charge against him and understood what it meant to enter a plea. The accused was aware that the court would determine the question of his guilt of the offence charged. Although the accused reported short term memory issues, he was able to give a detailed history to Dr Martin and concentrate during the examination. He also demonstrated an understanding of the effect of the broad categories of evidence in the Crown case, such as telephone records, and fingerprints and DNA found at the scene, explaining the presence of the latter by his residence in the apartment.
Dr Martin was also satisfied that the accused could make a defence to the charge and instruct his lawyers in that regard. The accused said that he was innocent of the charge and told Dr Martin that he and his girlfriend were both victims, having been harmed by bad people. The accused gave Dr Martin a relatively detailed account of events surrounding Ms Pan's death, saying that he and his girlfriend had been dealing with some potential business associates who had admitted to them the commission of capital offences in their native China, such that he and Ms Pan posed a risk to these people. Dr Martin continued: "In relation to his capacity to decide what defence he would rely on and make that decision known to the person's legal representative and the court, taking into account the above, he appeared to be able to decide in relation to a defence that he would put forward and to be able to communicate this adequately, in my view. He made various expressions of wanting to have his mobile phone returned to him in order to be able to make a defence to the charge, and for instance said that he would be able to identify people whom he accused of having killed his girlfriend and had thrown him from his apartment."
It was Dr Martin's opinion that the accused did not present with features of a major mental illness or a severe cognitive impairment. Referring to the evidence that suggested the accused had been "coached" by family members to feign or exaggerate cognitive difficulties, Dr Martin concluded that: "[…] it is likely that [the accused] has deliberately exaggerated cognitive deficits in the context of his legal situation. Based on the responses obtained in this narrative interview, and after considering Dr Pulman's opinion, in my view, he has an adequate understanding of the Australian legal process, and on balance, the court is likely to find him fit to plead and stand trial."
In his evidence to the Court on 21 June 2022 Dr Martin confirmed his opinion as to the accused's fitness. He did not think there was any reliable evidence that the accused had experienced a psychotic episode at the time of Ms Pan's death, and nor was the accused presently psychotic. Whilst the accused reported short term memory problems, the doctor saw nothing to objectively support that complaint. Even had the accused experienced past psychosis, Dr Martin did not regard that as relevant to the accused's current state of fitness.
Of the possibility of a psychotic illness on 27 June 2020 Dr Martin said: "[…] the witness statements referred to describe unusual statements and odd behaviour and him looking sweating. Now, this was in, you know, according to the Crown case statement, there are various references to use of nitrous oxide cannisters, which would, I don't know, you know, that hasn't been examined, but I think speculatively it's possible that he was acutely intoxicated and essentially on a binge of a psycho‑active substance which would potentially account for disturbed mental state and perhaps described as psychosis or an acute confusional state such as delirium, that's definitely possible, but it's speculative and I think one would look for other hard evidence of features of enduring mental illness or mental illness in the time leading up to that to draw a firmer conclusion, so I think it's highly speculative" (T45:34-44).
Dr Martin was asked in cross-examination about the accused's "fixated thinking": "Q. And you are aware that Mr He has a number of things to say, including some perhaps degree of fixation about what's on his phone and what his phone might reveal and the like? A. Yes. Q. And you agree that there are other examples of what might be regarded as fixated thinking? A. Such as? Q. Such as the view that somebody else had thrown him off the balcony for example? A. Well, that's ‑ I don't know whether that's fixated. It's certainly a script which he has stuck by apparently and has repeated so, yes, whether that's a genuinely held belief or not is beyond, you know, is beyond me to comment on" (T47:01-15).
The doctor was also asked about the accused's "irrational" account of the events surrounding Ms Pan's death: "Q. Based on your own interview with him and the interviews conducted by others of which you have read, would you agree with me that Mr He has said a number of things that on one view might be considered irrational such as a third party threw him off the balcony and access to his phone will reveal who is responsible for these things. You are aware of those‑‑ A. I am aware he has made those statements. I'm not sure they would be considered totally irrational, but that's for the Court to find" (T49:37-43).
Dr Susan Pullman, a forensic psychologist and clinical neuropsychologist, also provided a report to the Court concerning the accused (Ex. A.3) and gave oral evidence, on 20 June 2022.
In her report of 29 December 2021 Dr Pullman noted that she interviewed the accused at the Long Bay prison on 1 December 2021 and 16 December 2021 in the company of an interpreter, and administered tests of effort and symptom validity to him. More extensive neuropsychological testing could not be undertaken because of the recency with which the accused had undergone such testing, for clinical purposes.
At assessment, the accused conversed with apparent fluency, and he was able to give a history of his family, childhood, and education, including his former intention to commence a Bachelor degree at the University of Sydney. Dr Pullman estimated that the accused was of average to high average intelligence prior to his injuries. He denied any symptoms consistent with mental illness and displayed none.
The accused told Dr Pullman that his girlfriend had been killed by bad people, and denied having committed any crime himself. He asserted that he was not in gaol but in a rehabilitation facility. When asked about entering a plea to the charge against him he claimed that he had not been charged with any crime, although he acknowledged having been told by his mother that police thought he had hurt his girlfriend.
Mr He reported short-term memory problems. He said that he had no recollection of events leading up to his injuries and, afterwards, he found that his English language skills had deteriorated such that, whilst he could read English, he could no longer understand the spoken language. Dr Pullman observed that this was inconsistent with neuropsychological sequelae of a TBI.
When Dr Pullman first spoke with the accused he told her that he could not remember the events of 27 June 2020 and did not know how he sustained his injuries. At the second interview with the accused he gave Dr Pullman a different account, of having been thrown from the balcony by the same person that had hurt his girlfriend. Dr Pullman considered it difficult to explain such differing accounts, even for a person who had sustained a brain injury.
In light of the evidence suggesting that the accused may have been coached to feign memory loss Dr Pullman administered a Test of Memory Malingering ("TOMM"). There were two "trials" administered with the accused scoring on each occasion in a range that "should raise concern that the individual is not putting forth maximum effort and is malingering" (Ex. A.3, p.25).
On an assessment of verbal memory the accused endorsed a high number of false positives. Dr Pullman said: "His performance on tasks assessing structured and unstructured material suggests his memory impairment is consistent with a severe traumatic brain injury although his poor performance on tests of effort suggests these results should be interpreted with caution especially in light of evidence his mother had encouraged him to report not being able to remember prior to any neuropsychological assessment of his memory functioning" (Ex. A.3, p.26).
Dr Pullman also observed that the accused's apparent attention span was in the borderline to low average range, that being inconsistent with earlier assessments, which placed the accused in the high average range. As there is no organic explanation for a decline in attention span, one possible explanation for the inconsistency is that the accused was not performing to the best of his abilities. Other possibilities included tiredness or an absence of motivation.
Overall Dr Pullman concluded that the accused's test performance fell below what would be expected from a person with a TBI, with individuals with a severe TBI performing better than the accused. The type of memory tested on the TOMM is not impaired where there has been a TBI, and "therefore poor performance suggests symptom or memory deficit exaggeration needs to be considered" (p.26).
Dr Pullman concluded: "If Mr He's performance on tests of memory are an accurate reflection of his true abilities, it is likely that Mr He would have difficulty following the course of proceedings and be found unfit to stand trial. However, given Mr He's performance on tests of effort indicate he may not have been putting forward his best effort during assessment (whether due to fatigue, lack of engagement or attempt to exaggerate), the reliability of previous neuropsychological assessments must be called into question and the result of memory assessments should be interpreted with caution. Although Mr He demonstrated some impairments in executive functioning, such as novel problem solving and perseveration, the areas in which he demonstrated a lack of flexibility and perseveration during the interview were specifically related to the alternate explanation for the death of the deceased. Mr He may have been maintaining a "script" of what happened to the deceased rather than being perseverative in his account of the offence or lacking self awareness (Ex. A.3, p.27)."
In her evidence to the Court on 20 June 2022 Dr Pullman emphasised the ease with which even severely impaired individuals could achieve a perfect score on the TOMM, or at least a score that fell above the level indicative of malingering. She did not accept the possibility that the accused's low results were attributable to his eyesight deficits, given that she had checked his capacity to see the large and simple images that he was shown during the tests.

Determination

As earlier observed, there is clear evidence that the accused is cognitively impaired due to a TBI. The clinical assessments of his cognitive performance, supported by the accused's educational history and pre-injury ambitions for tertiary study, all point to a young man of at least average but likely higher intelligence before he was injured. In some areas of cognition his capacities have declined, or been impaired, following injury. The accused meets the definition of a person with a cognitive impairment. The question is whether the extent of impairment has rendered him unfit to stand trial.
In that regard s 44(5) of the Act requires the Court to consider particular, practical, matters in addition to the evidence of direct relevance to fitness.
Although the exact course and length of any trial cannot be known with precision, it is possible to make some informed assessment concerning those matters, on the basis of the factual allegation against the accused, and the outline of the evidence contained in Ex. A.2. The trial would, in my conclusion, be a relatively straightforward one. It does not involve any particularly complex legal issues, and the evidence is in short compass. Even if a mental illness defence or a defence of substantial impairment is raised, there is no reason to conclude that the trial proceedings would be overly long, or unduly complex.
The accused has the benefit of legal representation, and he will have the assistance of his lawyers at any trial. His lawyers will be able to both explain matters of law and evidence to him and advise the accused as to the best course to take to protect and advance his interests.
Whilst the accused did not appear to have any difficulty in attending to the proceedings with the assistance of an interpreter during the course of the fitness inquiry or apparently maintaining concentration for as much as two hours at a time, it is noted that court sitting times could be varied at any trial, and it would be possible to allow for longer breaks to ensure that the accused's representatives had adequate time to consult with him, and explain the ongoing proceedings. I have borne those more practical matters in mind when considering the evidence as to the accused's fitness.
The only evidence that calls the accused's fitness into question is the opinion of Dr Nielssen that he is unfit, and the affidavit evidence of Mr Szeto as to the apparent inability of the accused to provide thorough instructions to his legal representatives. [3] The evidence of Dr Nielssen and Mr Szeto raise a question as to the accused's capacity to follow the course of the proceedings at any trial, understand the substantial effect of evidence given against him, and provide reliable instructions to his lawyers.
All other evidence supports a conclusion that the accused, whilst cognitively impaired, is fit to be tried.
Although the accused reported confusion to Ms Bzishvili, he was able to give her a good account of himself and his history, and his attention skills were superior. His working memory was in the average range, albeit low-average.
Similarly, although the accused reported difficulties to Mr Ruane, he was able to sustain concentration over an extended period during six separate interviews; his working memory was average, and his language comprehension was adequate. Only the accused's ability to find and analyse visual detail placed him in the impaired range. Although on some memory tests the accused performed less well than expected, Mr Ruane noted that he endorsed many false positive items, and his performance was unreliable.
When interviewed by each of Drs Nielssen, Pullman, and Martin the accused was able to understand the basis and purpose of the consultations and provide his consent. He could provide a history to the doctors and attend adequately during the various interviews, of as much as "a couple of hours" (T35:50). He responded generally coherently to questions. He conversed, through an interpreter, with fluency. Although Dr Nielssen expressed reservations as to the reliability of the accused's account of events surrounding the death of Ms Pan, the accused could and did given accounts of those events to the experts and to others.
At an early stage the accused acknowledged having killed Ms Pan by stabbing her. On 9 October 2020 the accused nominated a particular individual as responsible for Ms Pan's death. The accused told Dr Pullman that he was thrown from a balcony by the same person that hurt his girlfriend, an account consistent with innocence. He told Dr Martin that he and his girlfriend had been attacked by other persons, and he advanced a possible or likely motivation behind the attack upon them. The accused gave a similar exculpatory account to Dr Nielssen of another person killing Ms Pan and throwing him from a balcony thereafter. He was able to account for potentially incriminating evidence such as fingerprints and DNA evidence by reference to his residence in the apartment where Ms Pan was killed.
The evidence that suggests that the accused may be relevantly cognitively impaired must be assessed in the context of other evidence summarised in the Crown Case Statement (Ex. A.2) concerning the influence of the accused's family members in suggesting the way in which he should conduct himself, apparently with a view to defeating any prosecution of him concerning Ms Pan's death.
That evidence suggests that, after the accused had made admissions to having himself stabbed Ms Pan - admissions that point to him having a memory of the events - family members urged him not to say he had killed Ms Pan and instead to claim amnesia, and "come up with a perfect script" and "play the script so that everyone would believe you" (Ex. A.2, p. 14). The accused's subsequent claims to have little or no memory of Ms Pan's death, and his account of an attack by other persons is consistent with the accused's acceptance of his family's advice.
That evidence must be borne in mind when considering the accused's assertions of amnesia of relevant events. It points to the possibility of malingering.
A conclusion that the accused may be falsely claiming amnesia, and deliberately underperforming when subjected to tests of memory and other cognitive functions is further supported by the results of the TOMM administered by Dr Pullman, results which point to malingering. Also pointing to that conclusion is the inconsistency of performance and endorsement of false positives noted by clinicians who tested the accused for treatment purposes.
Against that background, Dr Nielssen's acceptance of the accused's expressions of amnesia and other cognitive deficits in formulating his opinion as to unfitness and potential psychotic illness has led the Court to prefer the evidence of Dr Martin.
In considering the accused's fitness Dr Nielssen imported into the test capacities that have little or no bearing on the matters set out in s 36(1) of the MHCIFP Act. The doctor's concern was that the accused could not make a defence to the charge because his memory of the circumstances surrounding the relevant events was limited or absent, and the account he gave of those events was irrational, inadequate, and "unworkable" (T34:33). None of these qualifications to the ability to make a defence and instruct lawyers as to that defence appear in s 36 and, insofar as the provision substantially reproduces the common law test, none of the qualifications given by Dr Nielssen form part of the test that formerly applied at common law.
As the Crown pointed out in cross-examination of Dr Nielssen, it is not unknown or even uncommon for an accused person to raise a defence that others may regard as inadequate in some way. It is not unknown or even uncommon for an accused person to advance a defence that appears irrational, and which is inconsistent with forensic evidence. That the accused's account of others having attacked Ms Pan and then assaulted him by throwing him from a balcony may seem, when viewed in the context of the case for the Crown, to be unlikely, does not mean that the accused cannot make a defence, or instruct his lawyers.
Neither does amnesia of relevant events make an accused person unfit. As Dr Martin correctly deposed, many individuals who have no memory of an alleged offence due to, for example, intoxication at the time, are still able to stand trial.
Although applying the common law test of fitness, and under different statutory regimes than that which now applies in New South Wales, claims that a reasonable or common-sense defence originating in a memory of events is necessary for a person to be fit were consistently rejected by appellate courts in the past. These authorities remain of relevance, given the level of correspondence between s 36(1) of the MHCIFP Act and the criteria for fitness given in R v Presser [1958] VR 45.
In Russell v His Majesty's Advocate [1946] JC 37; [1946] SLT 93 the House of Lords rejected an argument that amnesia gave rise to unfitness to be tried. The Court of Criminal Appeal reached the same conclusion in R v Dennison (Court of Criminal Appeal (NSW), 3 March 1988, unrep). In R v Drummond (Court of Criminal Appeal (NSW), 27 May 1994, unrep) Grove J said, at 8, "Nor is the applicant prevented from using information derived from secondary sources as he or his advisers think fit in the course of the litigious contest. It is an obvious perception that an accused person who has an actual memory of events out of which charges have been brought against him is advantaged in comparison to a person who has no such memory. The question is, however, whether such comparison leads to the result that the person so disadvantaged should be entitled effectively to raise a plea in bar of trial. In my view he cannot either in general, or specifically pursuant to the Mental Health (Criminal Procedure) Act 1990".
In agreeing with Grove J, the then Chief Justice, Gleeson CJ said, at9 -10: "The fact that an accused person cannot, for one reason or another, recollect the events of the occasion of the alleged crime does not mean that the accused is, within the words of R v Presser [1958] VR 45 at 48 incapable of letting his counsel know what his version of the facts is. The accused person who says to his counsel "I can't remember what happened on that day" is not thereby unfit to plead. […] It perhaps hardly need be added that if the inability of an accused person to recall the events of the occasion of an alleged crime were to be accepted as a reason why the person should never be put on trial, there might be expected to be a substantial reduction on that account alone in the waiting times for criminal trials".
In the accused's case, and even if his assertions of limited memory are accepted as truthful and accurate, he is not thereby unfit to be tried. He has been able to give an exculpatory account of Ms Pan's death; whether his account is rational or adequate or workable is a matter for a tribunal of fact.
The accused has also demonstrated a capacity to understand the effect of evidence given against him, giving for example, a coherent response to forensic evidence, and appearing to understand the use that could be made, by both the Crown and his own lawyers - of evidence extracted from mobile telephone records. That Dr Nielssen did not "believe they are workable instructions" is immaterial to the question of fitness (T38:02 - 04).
Although it is not strictly necessary to consider it, since the accused's mental state at the time of the alleged offence has no bearing on the question of his current fitness to be tried, I am similarly unable to accept Dr Nielssen's opinion as to the possibility that the accused may have suffered a psychotic illness at the time of Ms Pan's death, an illness the doctor thought of relevance to fitness.
The accused's odd presentation on 26 and 27 June 2020 is a very tenuous basis from which to infer that he may have been experiencing a psychotic illness, particularly in circumstances where the accused had consumed a significant quantity of nitrous oxide, in combination with a considerable amount of alcohol, an intoxicant the accused told Mr Ruane he was unfamiliar with, and which had a great effect upon him. The accused does not manifest any symptoms of psychosis presently, and Dr Martin concluded that any suggestion that he was ill when Ms Pan died is "highly speculative" (T45). Dr Martin was correct when he deposed that, even if the accused was psychotic on 27 June 2020, that would not affect his fitness now, whether in his capacity to give instructions or otherwise.
On balance, and bearing in mind Dr Pullman's evidence of the accused's performance on the TOMM and the evidence of the "coaching" of the accused's family, I prefer and accept the evidence of Dr Martin.
I have considered Mr Szeto's evidence, which also falls to be assessed in light of the other evidence before the Court. The accused's apparent inability to comprehensively answer Mr Szeto's questions is to be contrasted with his capacity to converse in a generally responsive way with Ms Bzishvili, Mr Ruane, Dr Martin, Dr Pullman and - substantially - with Dr Nielssen. It is likely that the accused's discussions with Mr Szeto say more about his acceptance of the advice of his family than about his fitness to stand trial. In any event, he has given instructions to his lawyers, to the effect that he did not kill Ms Pan. Those instructions may be regarded as supplemented to a degree by the accused's assertions that another person is responsible, and that same person pushed him from his building because he witnessed the murder. His assertion that he might be able to name that person if given access to his mobile telephone is not prima facie so unhinged as to point to unfitness.
Although there is some issue as to the accused becoming fatigued during the course of any trial that can be addressed by any trial court varying sitting times to accommodate any problems that arise.
I am satisfied that the accused, although cognitively impaired and less able than he was prior to sustaining a TBI, has the capacity to meet each of the features referred to in s 36(1) of the MHCIFP Act. On balance, the accused is fit to be tried.
Having found that the accused is fit to be tried, s 46 of the MHCIFP Act applies, and the usual criminal procedures are to recommence. The matter should return to the arraignments list so that a trial date can be fixed.
The Court makes the following orders: 1. The Court finds, on the balance of probabilities, that the accused, Weijie He, is fit to be tried for the murder of Liqun Pan; 2. The matter is adjourned to the arraignment list on 5 August 2022 for mention to fix a trial date; 3. A Mandarin interpreter is to be requested for that day; 4. Bail is not applied for and is refused.

Endnotes

Nielssen O, Large M. Rates of homicide during the first episode of psychosis and after treatment: a systematic review and meta-analysis. Schizophrenia Bulletin 2010; 36(4):702-712 (Exs. A.6/1.2)
Nielssen O, Glozier N, Babidge N et al. Suicide attempts by jumping and psychotic illness. The Australian and New Zealand Journal of Psychiatry, 2010; 44(6): 568-573 (Exs. A.6/1.2).
The very brief opinion expressed by Dr King is devoid of any information as to the factors taken into account in forming it, or whether the doctor had regard to the test of fitness. It is of no real weight. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2024

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