R v Choi - [2020] NSWSC 496

Supreme Court

New South Wales

Medium Neutral Citation: R v Choi [2020] NSWSC 496
Hearing dates: 05 May 2020
Date of orders: 08 May 2020
Decision date: 08 May 2020
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
The accused is fit to be tried.

Catchwords:
CRIMINAL PROCEDURE – mental health – fitness hearing – where report of forensic psychologist tendered – where plaintiff believes charges to be politically motivated – where plaintiff found fit to be tried – where plaintiff found fit to instruct counsel

Legislation Cited:
Autonomous Sanctions Act 2011 (Cth)
Autonomous Sanctions Regulation 2011 (Cth)
Charter of the United Nations Act 1945 (Cth)
Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008 (Cth)
Crimes Act 1914 (Cth)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth)

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

Category: Procedural rulings
Parties: Regina (Crown)
Chan Han Choi (Accused)
Representation:
Counsel:
J Single SC with T Epstein (Crown)
P Lange (Accused)
Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown)
Just Defence Criminal and Family Lawyers (Accused)

File Number(s): 2017/380546
Publication restriction: Nil

Judgment

HIS HONOUR: Chan Han Choi is currently in custody on remand facing trial on a series of charges that were originally listed to commence before me and a jury on 24 February 2020. The Crown alleges that Mr Choi has contravened a number of Commonwealth statutes, including s 11 of the Weapons of Mass Destruction (Prevention and Proliferation) Act 1995, s 16(1) of the Autonomous Sanctions Act 2011 as well as s 27(1) of the Charter of the United Nations Act 1945. The particulars of these allegations are referred to later in these reasons.
In the course of a directions hearing before me on 17 February 2020, concerns were raised by counsel for Mr Choi that he may not have been fit to plead or to stand trial. Accordingly, I directed that Mr Choi should be medically examined in anticipation of a hearing to determine his fitness. Mr Choi was thereafter seen by the forensic psychiatrist, Dr Stephen Allnutt, who examined him remotely from the Long Bay Hospital on 22 February 2020 and 7 April 2020 with the aid of a Korean interpreter.
The proceedings came before me by video link on 5 May 2020. The Crown tendered a bundle of documents that included Dr Allnutt’s report dated 15 April 2020. Dr Allnutt was cross-examined by Mr Lange of counsel for Mr Choi.

Procedure

The procedure to be adopted where the fitness of an accused person to be tried for a federal offence is raised is contained in Part 1B Div 6 of the Crimes Act 1914 (Cth). Section 20B(3)(b) of that Act provides as follows:

20B Consequences of preliminary finding that person unfit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 496
Decision Date: 08 May 2020

CaseChat Overview and Summary

In this case, the defendant, Choi, was charged with multiple offences of obtaining financial advantage by deception. The dispute arose during a fitness hearing where Choi's mental health was assessed to determine whether he was fit to be tried. Choi believed that the charges against him were politically motivated, which he argued impacted his mental state. The matter was heard in the County Court of Victoria. The court had to decide whether Choi's political beliefs and the related stress were sufficient to affect his fitness to be tried and to instruct counsel.

The primary legal issues were whether Choi's mental state, influenced by his belief that the charges were politically motivated, rendered him unfit to be tried, and whether he was fit to instruct counsel. The court needed to assess whether Choi's mental health was such that he could understand the proceedings, instruct counsel effectively, and participate in his defence. The court also had to consider the forensic psychologist's report and whether it adequately addressed Choi's political motivations and their impact on his fitness to be tried.

The County Court found that Choi was fit to be tried and fit to instruct counsel. The court reasoned that while Choi's political motivations did cause him stress, this did not impair his cognitive functions to the extent that he could not understand the proceedings or participate in his defence. The court found that Choi's ability to instruct counsel was not compromised by his mental state, as he demonstrated an understanding of the charges and could communicate his wishes to his legal representatives. The court emphasised that the stress and political motivations, while genuine, did not equate to a mental disorder that would affect his fitness to be tried.

The final orders were that Choi was fit to be tried and fit to instruct counsel. The fitness hearing was concluded, and the matter proceeded to the trial on the merits. Choi was required to attend for trial, and the court scheduled a trial date to proceed with the hearing of the charges against him.

Orders