HIS HONOUR: By indictment dated 1 December 2023, Jiman Yeon ('the accused') is charged with the murder of Lindai Parker ('the deceased') between 26 and 30 December 2022 at Greendale, NSW. The accused is also charged on a certificate pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW) of a related offence of knowingly contravening a prohibition/restriction in an Apprehended Domestic Violence Order.
On 8 December 2023, the charge was first listed before this Court. A question of the accused's fitness to stand trial was raised. The accused was not arraigned, and an inquiry to determine whether he is unfit to be tried was fixed for hearing.
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The statutory provisions: fitness hearings
Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ('the MHCIFP Act') deals with fitness to stand trial.
Section 36 prescribes the test for fitness:
(1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following -
(a) understand the offence the subject of the proceedings,
(b) plead to the charge,
(c) exercise the right to challenge jurors,
(d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
(e) follow the course of the proceedings so as to understand what is going on in a general sense,
(f) understand the substantial effect of any evidence given against the person,
(g) make a defence or answer to the charge,
(h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary,
(i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court.
As the chapeau to s 36(1) makes clear, the unfitness to be tried must be because the person has a 'mental health impairment' or 'cognitive impairment'. Both of these terms are defined: the former in s 4, the later in s 5. A person is "taken" to be unfit to be tried for an offence if the person, because they have an impairment of the requisite kind (or both), or for another reason, cannot do one or more of the matters in ss 36(1)(a)-(i). Section 36(1) does not, however, limit the "grounds on which a court may consider a person to be unfit to be tried for an offence": s 36(2).
In addition to any other matter, the court is to consider, in determining whether the defendant is unfit to be tried for an offence, the matters in s 44(5) - namely:
(a) whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial,
(b) the likely length and complexity of the trial,
(c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner.
The question of the defendant's unfitness to be tried is to be determined on the balance of probabilities: s 38. The onus of proof on the question of the defendant's unfitness to be tried "does not rest on any particular party to the proceedings": s 44(4). The inquiry into the question of the defendant's unfitness to be tried is "not to be conducted in an adversarial manner": s 44(3).
The question of a defendant's unfitness to be tried is to be determined by judge alone (s 44(1)), and the determination "must include the principles of law applied by the judge and the findings of fact on which the judge relied": s 44(6).
If a defendant is found unfit to be tried following an inquiry, the court must also determine "whether, on the balance of probabilities, during the period of 12 months after the finding of unfitness" the defendant "may become fit to be tried for the offence, or will not become fit to be tried for the offence": ss 47(1)(a) and (b).
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The Crown Case: a summary
The accused has been charged with the murder of Lindai Parker at Greendale, NSW, between 26 and 30 December 2022. He has also been charged with a related offence on a s 166 certificate of knowingly contravening a prohibition/restriction in an Apprehended Domestic Violence Order.
The Crown case, very briefly, is as follows. The accused is the stepson of the deceased. At the time of the alleged murder, the accused was living with the deceased at a residence in Greendale.
On 30 December 2022, friends and family members of the deceased, having been unable to contact her for several days, entered the residence she shared with the accused and discovered her body in the garage. They contacted the police, who observed small black ceramic fragments scattered on the stairs next to a blood trail which led down the stairs, through the house and into the garage, where the deceased's body was located laying face down.
At 1:01am on 31 December 2022, the accused was arrested at a service station in Ballina, NSW. Upon searching his vehicle, police located a wine bottle with blood on it in the rear seat. The accused was taken to Ballina police station, where he was assessed by NSW Ambulance officers. He was determined to be suffering from a psychotic relapse of schizophrenia and was scheduled under the Mental Health Act 2007 (NSW) and taken to Lismore Base Hospital.
On 7 February 2023, the accused participated in an ERISP in which it is alleged he made a number of admissions, including that the deceased and accused had engaged in a physical altercation in which the deceased was pulling on his hair when he hit her several times in the head with a wine bottle, before dragging the deceased's body by her legs into the garage.
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Report of Dr Andrew Ellis dated 23 August 2023
The solicitors for the accused qualified Dr Andrew Ellis, consultant forensic psychiatrist, to interview and assess the accused and to express an opinion on his fitness to be tried. Dr Ellis' report is dated 23 August 2023.
Dr Ellis interviewed the accused on 13 July 2023. The key matters from the report that he prepared are as follows:
1. In terms of the accused's psychiatric history, Dr Ellis noted that the accused was first diagnosed with schizophrenia in his early 20s, and had a well-documented history of symptoms consistent with that diagnosis, and the attempts to treat it (report pp 4-6).
2. Dr Ellis noted that, following his admission to the Tweed Hospital psychiatric unit on 31 December 2022, the accused was diagnosed with "an acute exacerbation of chronic paranoid schizophrenia" (report p 6). Dr Ellis also reported that the accused's "current treating team" (at Long Bay Correctional Centre Prison Hospital) had "noted ongoing delusions, refractory to antipsychotic treatment" (report p 6).
3. Dr Ellis diagnosed the accused as suffering from "schizoaffective disorder, bipolar subtype, most recent episode manic", which he later said is a "mental health impairment…which is characterised by delusions and hallucinations and when more acutely unwell formal thought disorder and disturbed mood" (report p 10). Later, Dr Ellis expressed the opinion that this was a "mental health impairment" within the MHCIFP Act (report p 12).
4. Dr Ellis reported that the accused had presented with "over a decade of symptoms including copious delusions, hallucinations… formal thought disorder, manic mood states", to name just some. Dr Ellis considered that, despite consistent treatment with at least two antipsychotics, the accused displayed consistent ongoing delusions, hallucinations and poor insight such that he considered the accused had a treatment resistant condition (report p 10).
5. Dr Ellis undertook a close consideration of the various matters in ss 36(1)(a)-(i), and expressed the opinion that the accused did "not meet the elements of the test for fitness", which Dr Ellis considered was due to the accused's "ongoing symptoms of mental illness and not under his voluntary control" (report p 12). Specifically, in relation to each of the sub-paragraphs of s 36(1), putting to one side that Dr Ellis considered that the accused "has an understanding of types of evidence in his case, and how they may be used in a court setting in a basic sense" (s 36(1)(f)), in all other respects Dr Ellis did not consider the accused could "do" the other matters dealt with in that section.
6. Dr Ellis expressed the opinion that the accused's condition was "likely only to respond to complex psychopharmacology…likely in conjunction with other medications" and it was "not likely that this type of treatment would be available to him, or if it were available be able to bring him to a state of fitness within 12 months" (report p 12).
It appears that on or around 2 April 2024, Dr Ellis saw the accused. Dr Ellis reported briefly following his assessment of the accused, noting that the accused's "delusions have not shifted, other than the date of the 'wipeout' being moved to January".
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Report of Dr Jeremy O'Dea dated 22 January 2024
The Crown retained Dr Jeremy O'Dea, consultant forensic psychiatrist, to examine and assess the accused and to express an opinion on his fitness to be tried. Dr O'Dea's report is dated 22 January 2024.
Dr O'Dea interviewed the accused on 16 October 2023. The key matters from the report that he prepared are as follows:
1. Dr O'Dea considered that the accused presented at interview as "acutely psychotic, with significant disorder in the form and content of his thinking, typical of the thought disorder of a person suffering the acute signs of a schizophrenic illness" (report p 2).
2. Dr O'Dea, having considered the accused's history and presentation at interview, considered that the accused suffered from a "Severe Chronic Treatment Resistant Schizophrenic Illness", a condition that Dr O'Dea considered was "characterised by a marked disorder in the form and content of his thinking…auditory hallucinations, disorganised thinking, affective instability, disorganised behaviour…all typical of schizophrenia" (report p 8). Dr O'Dea assessed the accused as being acutely psychotic when interviewed on 16 October 2023, manifesting in "significant disorder in the form and content of his thinking, including significant emotional lability, problems with attention and concentration, and limited insight" (report p 8).
3. Dr O'Dea expressed the opinion that the accused's acute psychosis, as it manifested at the time of interview, would meet the criteria of a "mental health impairment" under the MHCIFP Act and that the accused would not "be able to meet the minimum standards for fitness to be tried", having regard to the matters in s 36 of the Act (report p 8). Dr O'Dea thus concluded that the accused "was not currently fit, from a psychiatric perspective, to be tried" (report p 9).
4. Dr O'Dea considered that, given the accused had severe treatment resistant schizophrenia, on balance, he was "unlikely to become fit to be tried within a 12 months timeframe" (report p 9).
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Discussion and consideration
Both Dr Ellis and Dr O'Dea consider that the accused has a mental health impairment within s 4(1) of the MHCIFP Act: Dr Ellis diagnosed the accused as meeting the criteria of "schizoaffective disorder, bipolar subtype, most recent episode manic", whereas Dr O'Dea diagnosed the accused as suffering from a "Severe Chronic Treatment Resistant Schizophrenic Illness". Given the manifestation of the symptoms were essentially the same, there does not appear to be any diagnostic difference between these opinions, despite the different terminology. I accept this evidence, and find that the accused has a mental health impairment within s 4(1) of the MHCIFP Act, being a severe chronic treatment resistant schizophrenic illness.
The next question is whether the accused is unfit to be tried because of that mental health impairment. That was the opinion of each expert qualified. Thus, in relation to Dr Ellis, his opinion, having considered each of the sub-paragraphs in s 36(1), was that the accused did "not meet the elements of the test for fitness" by reason of that mental health impairment. As I have earlier noted, except for the possibility that the accused could "do" the matter in s 36(1)(f), Dr Ellis considered that the accused did not meet any of the other criteria. Dr O'Dea's opinion was more concise, but to similar effect - his opinion being that the accused would not "be able to meet the minimum standards for fitness to be tried", having regard to the matters in s 36 of the MHCIFP Act. Each of the experts thus considered that the accused could not do one or more of the matters in the sub-paragraphs in s 36(1). I accept this evidence. I am therefore satisfied that the accused is unable to do each of the prescribed matters, with the possible exception of s 36(1)(f).
It is accepted that neither expert, expressly, addressed any of the considerations in s 44(5) of the MHCIFP Act. Nevertheless, both the Crown and the accused submitted that it is a reasonable inference to be drawn from their opinions that the considerations in that section would not alter their opinions. Given the nature and extent of the accused's inability to do the various matters in s 36(1), there is considerable force to that submission, and I accept it. I thus infer, and find, that none of the considerations in s 44(5) undercut the findings that I have made, and conclusions reached.
I accept the evidence from Dr Ellis and Dr O'Dea in connection with the accused's fitness. I am satisfied, and find, that the accused is unfit to be tried for both the murder and related s 166 charge because of his mental health impairment.
Having made that finding, the next question is whether, on the balance of probabilities, the defendant may become fit to be tried or will not become fit to be tried during the period of 12 months after the finding of unfitness: ss 47(1)(a) and (b). In relation to the language of s 47(1)(b) ("will not become fit to be tried"), it has been suggested that this involves a very high standard of satisfaction, and that the finding "should only be made if there is a real certainty as to the accused's lack of fitness during the relevant 12 month period": R v Risi [2021] NSWSC 769 at [55]; R v Woodham [2022] NSWSC 1154 at [23].
Both the Crown and the accused submitted that the Court would find that the defendant will not become fit to be tried in that time period.
The opinions from Dr Ellis and Dr O'Dea were each to the effect that the defendant would not become fit to be tried in that period. Each of them, when expressing that opinion, emphasised the chronic, and treatment resistant, nature of the accused's schizophrenic illness. I accept this evidence and find that the defendant will not become fit to be tried for the murder and related s 166 charge during the period of 12 months after the finding of unfitness (s 47(1)(b)).
To sum up, I make the following findings:
1. The accused, Jiman Yeon, is unfit to be tried pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) for the murder of Lindai Parker (and, to the extent necessary, the s 166 charge).
2. The accused, Jiman Yeon, on the balance of probabilities, will not become fit to be tried for the offence during the period of 12 months after this finding of unfitness pursuant to s 47(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
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Orders
For the above reasons, I make the following orders:
1. Order the accused be remanded in custody.
2. List the matter in the arraignments list on 3 May 2024 for allocation of a date for a special hearing.
3. Direct that the Director of Public Prosecutions advise as to whether or not further proceedings (being a special hearing) will be taken against the accused for the murder of Lindai Parker.
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Decision last updated: 08 April 2024