HER HONOUR: MC appears before the Court having been arraigned this morning upon the following charges:
Count 1: That he did, on the 3 January 2019, at Chatswood in the State of NSW, murder Chih-Jen Yeh; and further,
Count 2: That, on the same day and at the same place, he wounded Shannan Vaughan, intending to cause him grievous bodily harm.
The first of the charges is one contrary to s 18(1)(a) of the Crimes Act 1900 (NSW); the second is an offence contrary to s 33(1)(a) of the same Act.
The accused was not asked to enter a plea to the indictment, the issue of his fitness to be tried having been raised.
That issue was raised on 19 June 2020 and this Court, constituted by his Honour Justice Hulme, determined, pursuant to s 8(1) and s 10(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"), that an inquiry into the matter should be held. Pursuant to s 11 of the Act, the inquiry has been heard today before me as a judge sitting alone.
[2]
The Evidence
The Crown tendered the Crown Case Statement summarising the factual allegations against the accused, a report from Dr Yumna Dhansay of 14 December 2019, and a report from Dr Adam Martin of 17 June 2020. The doctors are both forensic psychiatrists. The accused read an affidavit from his solicitor Ms Connell affirmed on 21 August 2020.
It is not necessary for present purposes to set out the detail of the circumstances surrounding the death of Chi-Jen Yeh, and the wounding of Mr Vaughan. Of relevance, is the evidence contained therein as to the accused's background.
At the time of the alleged commission of these offences the accused was sixteen years old. He is now seventeen years old. He is a Taiwan national who resided in Taiwan with his family. He does not speak English.
After the events of 3 January 2019, the accused's mother, Ms L, gave the police some information about his condition. She said that when he was eight or nine years of age he was diagnosed with "an emotional disorder". She told them that when he was 14 years of age he was diagnosed with autism. He has been prescribed Ritalin and Concerta but stopped taking his medication in about November 2018 because he did not like it.
Seeking a change of environment for her son Ms L brought him to Australia, arriving here on 18 December 2018. She attended a church in Chatswood with him, and that is where the events leading to the charges against the accused occurred, on 3 January 2019.
Suffice to say that those events of themselves raise a very real question as to the accused's mental health, at least as at early January 2019, and point to the conditions Ms L disclosed to investigating police.
That the accused does suffer from conditions that might broadly be referred to as mental illnesses is clear from the expert evidence, which is to the effect that the accused was likely mentally ill in early 2019, and remains so.
Dr Martin saw the accused on 26 May 2020 with the assistance of a Mandarin interpreter. He found his interview with the accused challenging, due to the accused's disordered mental state and apparent reluctance to speak with him.
In his report, Dr Martin considered matters relevant to whether the accused is fit to be tried. He said, at [13], that the accused:
"knew that he had been charged with murder and he knew that murder was "kill person deliberately". He appeared to have a basic understanding of what it means to plead guilty or not guilty but told [Dr Martin] "I don't know, lawyer told me to do this". He did not demonstrate a good understanding of the Australian legal process or the purpose of court other than to say "law" and "no go, never free"; then said, "I killed someone and this someone's family members may bribe judge and put me in prison forever".
On being asked about the roles of officers of the Court, the accused said that:
"The judge was boss and that the jury was rubbish. Again, he said there may be problems of corruption. He said that the DPP were rubbish but did not elaborate. He said that the defence lawyer is "like sales person" and [Dr Martin] could not understand his logic in so saying.
In relation to evidentiary issues, the accused said "anything" and "kill someone" but again did not elaborate. In relation to questions attempting to elucidate whether the accused might be able to give a version of events, the accused said, "The victim met a crazy person and he was not in luck and he died".
Dr Martin concluded that the accused has schizophrenia with a background of autism spectrum disorder. Of those conditions he said:
"Schizophrenia is a major mental illness characterised by a predisposition to psychosis. Psychosis is a description of a person being out of touch with reality as manifested by experience of delusions, hallucinations and thought disorder. Autism spectrum disorder is a neuro-developmental disorder. It is associated with lack of emotional reciprocity, impaired social skills, communication difficulties and rigid behaviours. There is a significant crossover and association between autism spectrum disorder and schizophrenia".
As to fitness, Dr Martin said that the accused:
"understands that he has been charged with murder, however he does not demonstrate an adequate understanding of what it means to plead or the general purpose of court".
He expressed what the doctor thought was paranoid ideation about the judicial process, mentioning corruption. He was unable to give a satisfactory explanation of his understanding of evidentiary issues or the right to challenge. Dr Martin considered that the accused would not be able to participate meaningfully in a trial. He formed the view that he would not be able to appropriately understand legal advice or give appropriate instructions to his legal team.
The doctor thought that the accused's capacity to give a narrative version of events and participate in his defence would be significantly detrimentally affected by his mental illness, particularly so when that mental illness was against a background of autism. Dr Martin opined that the accused is unfit to plead and stand trial. He thought that that situation would be ongoing and would not change with time or treatment.
Dr Martin gave brief oral evidence this morning. He was provided with some information as to the likely manner in which any trial of the accused would be conducted, but his opinion as to the accused's incapacity did not change. Whilst he accepted that some of the R v Presser [1958] VR 45 criteria, such as the exercise of the right to challenge a potential juror, may have lesser relevance, he considered that the accused would be unable to understand trial proceedings, no matter how efficiently conducted, and no matter how narrow the issues to be decided by the tribunal of fact. He concluded that the accused would be unable to meaningfully participate in trial proceedings.
Dr Dhansay's evidence and opinion is consistent with that of Dr Martin. Dr Dhansay saw the accused on 7 November 2019 for about an hour and ten minutes. She found him guarded and difficult to engage during the interview, and observed:
"there was no formal thought disorder but [MC] had a concrete style of thinking and interpreted and answered questions literally. [MC] somehow displayed delusional thought content which included believing the government was monitoring everyone and that he was being controlled by something or someone. He had difficulty remaining engaged in this interview process and after about 40 minutes became impatient".
Dr Dhansay directed her inquiries to matters relevant to fitness. She noted that, when the accused was:
"asked if he knew what he was charged with, [MC] said that he did not know. When asked if he knew how he would plead to the charge he first stated 'not guilty' but then stated 'don't know'".
The accused told the doctor:
"that his lawyer suggested that he say he has a mental illness. When asked if he thought he had a mental illness, he stated that he did not know. When asked if he understood the nature of the court proceedings, he also stated that he did not. When asked if he knew the role of the various people in court, such as the judge and the lawyers, he stated that he did not know. He did not know what the role of the jury was nor did he understand his right to challenge a juror".
When asked if he could identify different forms of evidence and the relevance of that evidence, he stated that he did not know. The accused said to the doctor, "Let me put it this way I know nothing". He said that his lawyer told him that if he was found to have a mental illness he would be able to get home quicker. When Dr Dhansay asked him what he thought "quicker" meant he stated, "I will be in hospital for one to two years and then I can go home".
It was Dr Dhansay's conclusion that the accused did not meet the Presser criteria.
In oral evidence this morning, the doctor maintained that view, even in the knowledge that any trial of the accused would likely be conducted quickly and efficiently, with only a very narrow issue to be determined by the tribunal of fact.
Ms Connell first had contact with the accused on 30 October 2019. She has had seven consultations with him in total, not including any discussions that have occurred during the course of proceedings today.
Ms Connell deposes that her conferences with the accused have been brief, generally lasting no more than ten minutes, as the accused is distracted and disinterested. She has tried to outline for him the evidence and law relevant to his situation but found the accused difficult to engage. In later conferences with Senior Counsel for the accused, his attention was better, and he was able to maintain concentration for longer periods. The accused provided instructions to the effect that:
"He wants to plead not guilty on the grounds of mental illness or that he is not guilty of anything and not pleading guilty to anything because he had mental problems".
He showed some understanding of court procedure during a conference earlier this year, on 7 February 2020, where by reference to the legal system in Taiwan and television shows he had seen, he explained a basic understanding of a court and of a trial, a judge, and the role of his lawyers, that role being to help him and defend him. He indicated that if someone is guilty of a crime the judge decides when the person can go home.
Whilst Ms Connell has been able to obtain some instructions from the accused, and sufficient to proceed on the basis that a defence of mental illness will be advanced, preferably at a trial heard by a judge sitting without a jury, there have been ongoing difficulties in engaging with the accused. Ms Connell deposed:
"It is difficult to know how well the accused understands the advice given to him because it is difficult to establish any rapport with him. Conferences have mostly only been able to be short in nature. I have always felt that there is limited time to talk to him because he has signalled to leave the conference himself on almost every occasion I have been present. The short spans of time that the accused is willing to participate in conference has provided issues with giving detailed advice".
[3]
Determination
All of the evidence points clearly to a conclusion that the accused is unfit to be tried.
How any trial is to be conducted is clearly a relevant feature and could, as a general proposition, have an impact upon the determination of the question of unfitness. In the accused's case however, the disorders which affect his cognition are so profound that I do not believe that he could sufficiently understand trial proceedings, no matter how efficiently conducted; and I do not accept that he could participate in the proceedings in a meaningful way.
Both doctors referred in their evidence to the "Presser criteria" and those criteria are well established. They derive from the Victorian decision of R v Presser, as affirmed in Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 245. To be fit to be tried, the accused needs to:
"... be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in Court in a general sense, though he need not, of course, understand all the formalities. He needs to be able to understand the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this by letting his counsel know what his version of the facts is and, if necessary, telling the Court what it is. He need not have the mental capacity to make an able defence: but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any."
These are minimum standards.
Even in a trial conducted before a judge alone, with frequent breaks and regular assistance provided to the accused to help him to understand the proceedings, I cannot conclude that the accused would be able to follow the course of the proceedings; understand the general effect of the evidence, no matter how confined; or make a defence in an informed way.
Although the accused has instructed his solicitor to advance a defence of mental illness, and to seek a judge alone trial, I very much doubt that that is on the basis of any real understanding of the choices available to him, or the benefits and disadvantages of the particular options. The accused suggested to Dr Dhansay that he is doing as his lawyers told him to do. Whilst that may be sensible, and is likely to be in his best interests, it is a different thing from understanding the choices and exercising the choices in a meaningful way.
Even in a trial without a jury, conducted as informally as possible to accommodate an accused's disabilities, some important procedural formalities remain, and cannot be dispensed with. The accused would, for example, have to be arraigned and enter pleas to the two charges brought against him on indictment. I am not confident that he could enter those pleas, as opposed to parroting the pleas suggested to him by others, understanding the meaning of the charges, and the consequences of his pleas.
I very much doubt that the accused could follow the proceedings, or understand the evidence given.
It seems likely that this matter will proceed as a judge alone trial, perhaps conducted by the tender of documentary evidence only, or substantially so. It is likely that it will not be necessary for the accused to exercise his right of challenge, or provide instructions to permit evidence to be challenged, or give evidence himself. However, he still needs to understand what it is that he is charged with, and be able to plead to the charge. He still needs to be able to understand the proceedings, including having at least a rudimentary understanding of the role of the various participants, and follow and comprehend the evidence. I am not persuaded on balance that the accused could do that.
I appreciate that there are practical consequences of a finding of unfitness that are likely to lead to a delay in the ultimate finalisation of the criminal proceedings, and that that may be to the accused's detriment, but it is a fundamental principle of our system of criminal justice that an accused person cannot be brought to trial if he or she is not fit to be tried. Although any special hearing would be conducted in a manner as close as is possible to that of a criminal trial, there remains a significant difference between the two proceedings, not least being the verdicts available to the tribunal of fact.
In my conclusion the accused is unfit to be tried.
[4]
orders
The Court makes the following orders:
1. Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990, ("The Act") I find that the accused, [MC], is unfit to be tried for the offences of murder, and of wounding with intent to do grievous bodily harm;
2. In accordance with s 14 of the Act, I refer the matter to the Mental Health Review Tribunal;
3. Pursuant to s 14(b)(iii) of the Act, I remand the accused in custody pending further orders of the Court;
4. I direct the Registry to provide the following documents to the Mental Health Review Tribunal:
1. copy of this judgment;
2. a copy of the exhibits tendered to this inquiry.
[5]
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: 02 September 2020