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

1. 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.

2. 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.

3. 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

4. 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 to be tried

(3) Where a court:

…

(b) before which a person appears in proceedings for trial of a federal offence on indictment…

finds the person unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.

5. The expression “unfit to be tried” is defined in s 16 to include “unfit to plead”. The provisions of State law regulate the mode of determination of fitness issues: see Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 at 243. The issue is to be decided upon the balance of probabilities: s 6 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The determination is to be made in accordance with s 11 of that Act. That section is as follows:

11 Determination of questions of unfitness

(1) The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone.

(2)  Any determination by the Judge under this section must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

6. The test of a person’s fitness is set out in the well-known case of R v Presser [1958] VR 45. In order to be fit, an accused person must be able to:

1. understand with what he or she is charged;

2. enter a plea;

3. exercise the right to challenge jurors;

4. follow the proceedings of the court in a general sense;

5. mount a defence in answer to the charges; and

6. instruct his or her counsel.

Prima facie case

7. Included in the material with which I have been provided is an extensive statement of facts dated 10 October 2019 spanning 195 pages. I am clearly not required to determine Mr Choi’s guilt or innocence for any purposes, and nothing contained in these reasons should be taken as indicating that I have formed any view about it. I am, however, satisfied that the material contained, and referred to, in the statement of facts would, if proved, establish a prima facie case that Mr Choi committed the offences with which he has been charged and for which he is due to be tried.

The charges

8. Mr Choi is charged with 8 offences as outlined in the indictment. In summary he is charged with the following offences:

• Offences contrary to the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth). In particular, two charges of providing services for a weapons of mass destruction program contrary to s 11 of the Weapons of Mass Destruction (Prevention of Proliferation) Act, relating to providing brokering services for the sale of:

(1)   Democratic People’s Republic of Korea (DPRK) (otherwise known as North Korea) short-range missiles and related expertise (5 – 30 August 2017); and

(2)   DPRK tactical missile guidance components (9 November – 16 December 2017).

• The maximum penalty for these offences is imprisonment for 8 years.

• Offences contrary to the Charter of the United Nations Act 1945 (Cth). In particular, two charges of contravening a United Nations sanction prohibiting the export of arms and related material from the DPRK, contrary to s 27 of the Charter of the United Nations Act with r 11 of the Charter of the United Nations (Sanctions – DPRK) Regulations, relating to the above two sets of brokering services.

• One offence of contravening a United Nations sanction prohibiting the import of refined petroleum products into the DPRK, relating to the brokering services for the sale of Iranian petrol to the DPRK, contrary to s 27 of the Charter of the United Nations Act with r 11 of the Charter of the United Nations (Sanctions – DPRK) Regulations.

• The maximum penalty for these offences is imprisonment for 10 years.

• Offences contrary to the Autonomous Sanctions Act 2011 (Cth). In particular, three charges of contravening a United Nations sanction prohibiting services relating to an extractive industry in the DPRK, contrary to s 16 of the Autonomous Sanctions Act with r 13 of the Autonomous Sanctions Regulations, relating to providing brokering services for the sale from the DPRK of:

(1)  coal to entities in Indonesia (5 August – 16 December 2017);

(2)  coal to entities in Vietnam (16 October – 1 November 2017); and

(3)  pig iron to entities in South Korea (18 September – 18 October 2017).

Fitness to stand trial

9. Dr Allnutt’s opinion was expressed in these terms:

“Re: Fitness to Stand Trial

I believe Mr Choi has capacity to understand the nature of the pleas – he understands he has been charged with these offences. However, his position is that he has been charged for a political motive.

He understands the meaning of the term guilty and not guilty and the consequences of those findings and, in that sense, has capacity to plead to the charge.

He understands the roles of the judge and the jury and when explained to him, he clearly understood that his right of challenge advantaged him – therefore, in my view, he has capacity to exercise his right of challenge, although there is a risk that he may be suspicious of members of the jury as having potentially been influenced by Australian Government and DPKR, as he would be of all court officers.

He understands the nature of the proceedings – that it is an enquiry as to whether or not he committed the offences with which he is charged, although he perceives the charges as being politically motivated.

In my view, he has capacity to follow the course of proceedings, but it is probable that he will intervene if he does not perceive the proceedings are addressing his concern about the underlying political motivation for the charges.

He has capacity to understand the substantial effect of any evidence that may be given in support of the prosecution, and that evidence can be used both for and against him.

He is compromised in his capacity to communicate with counsel because he believes counsel is conspiring with the Australian Government to prevent the Australian Government from being embarrassed. Whether this makes him unfit to stand trial remains an issue as he has the right to choose to defend himself.

At this stage, my view is that even if he does have a delusional disorder and chronic adjustment disorder with a depressed and anxious mood, on balance he is probably fit to stand trial.

He is also probably fit to run his own trial although I would caution the court that he is likely to be a challenging advocate for his case, that he would probably require redirection to focus his mind on the purpose of the trial, that is, whether he is guilty or innocent of the charges. There would be risk that he could be distracted by an attempt to address Australian legal process and to highlight what he perceived as political motives for his arrest.”

10. A supervening issue in this case concerns Mr Choi’s perception that the charges that he faces are politically motivated. Associated with that perception appears to be a frustration on his part that his fears are neither understood by those who have been appointed to represent him nor, even if they are, considered to be sufficiently important or relevant to be accorded the prominence that Mr Choi feels they warrant. Accordingly, even though Dr Allnutt considers that Mr Choi is fit to stand trial, he retains what might be described as a residual concern that Mr Choi’s distrust or suspicion of his lawyers, including his present lawyers, may interfere with the conduct of his trial. That distrust or suspicion was not considered by Dr Allnutt to foreclose Mr Choi’s ability to instruct his counsel but it must necessarily remain as a matter of some concern. The evidence about that included the following:

“HIS HONOUR: Doctor, would this be a fair summary: at present you think Mr Choi is fit to stand trial and has a capacity to instruct counsel if he chooses to do so. However, in the latter respect, his concern to give vent to his political issues and the perceived disinclination of legal counsel to give similar significance to those matters, has the potential to create mistrust and tension between Mr Choi and any lawyers he chooses to instruct?

A. Yes.”

11. Mr Choi informed Dr Allnutt that he intended to represent himself at his trial. As far as I am aware, Mr Choi has no legal training of any kind, although Dr Allnutt considered him to be an intelligent person. The prospect of Mr Choi representing himself, with the aid of an interpreter, and taking account of his preoccupation with what he considers to be the highly political undercurrent, suggests that the conduct of a trial will present some considerable, although not necessarily unique, procedural challenges. As appears above, Dr Allnutt expressed caution that Mr Choi would be “a challenging advocate for his case” even though he considered him to be fit to run his own trial.

12. A similar issue arose for consideration in Berg v Director of Public Prosecutions [2016] 2 Qd R 248; [2015] QCA 196. In that case, Flanagan J said this:

“(f) Fit to instruct counsel

[47] Chesterman J in Re T had to consider the identical definition in the context of the 1974 Act. The defendant in Re T had been charged with two counts of indecently dealing with a child under the age of 12 and his solicitors referred the question of his fitness for trial to the Mental Health Tribunal. T was mistrustful of his legal representation and was paranoid. Chesterman J considered that an “exegesis of the concept ‘fitness to instruct counsel’ is provided by the judgment of Smith J in Presser.” His Honour then quoted Presser and continued:

‘The terms of this exposition [Smith J in Presser] reveal a concern that an accused person must be able to understand, at least in general terms, the nature of his plight and the case brought against him. That is, the accused must appreciate what is meant by being on trial, and as well he must be capable of understanding the substance of the charge he faces.’

[48] His Honour also referred to Pritchard, Ngatayi[ and Podola and concluded that to be fit for trial a defendant must be ‘able to answer the charge brought by the prosecution. To do so he must understand that he is on trial, and what that means, and he must understand the evidence led in support of the charge so that he can put forward whatever answer he has to it.’ His Honour was not satisfied that the defendant’s paranoia and distrust of counsel made him unfit to instruct counsel:

‘[The psychiatrist’s] concern was that the [defendant] would not give a balanced account of the facts to his lawyers. It is not, I think, necessary that an accused give such an account. It is enough, on the authorities, that he understands the evidence against him.’

[49] What is critical is Chesterman J’s inclusion of the common law in terms of Presser into the criteria to be ‘fit to instruct counsel’ and then his Honour’s determination that it was not necessary that the defendant give an account to his legal representatives. Rather, it is enough that the defendant personally understand the evidence so as to answer the charge.

[50] In R v House, Connolly J also considered the definition of ‘fit for trial’ in the 1974 Act. There his Honour stated:

‘Capacity to instruct counsel involves understanding the evidence which is led so as to be able to inform counsel whether it is true or not and whether there are other facts which qualify or explain the evidence adduced. It does not involve understanding the law especially if, as in this case, he had the benefit of counsel.’

[51] To similar effect is the judgment of de Jersey CJ in R v M where the Chief Justice was considering the meaning of ‘fit to … instruct counsel’ in the same definition of ‘fit for trial’ in the Act:

‘Fitness for trial, in relation to the capacity to instruct counsel, posits a reasonable grasp of the evidence given, capacity to indicate a response, ability to apprise counsel of the accused’s own position in relation to the facts, and capacity to understand counsel’s advice and make decisions in relation to the course of the proceedings. It does not extend to close comprehension of the forensic dynamics of the courtroom, whether as to the factual or legal contest. For a person represented by counsel, fitness for trial of course assumes that counsel will represent the client on the basis of the client’s instructions. That the giving of such instructions may take longer because of intellectual deficit is a feature with which courts should and do bear.’

[52] There are two relevant aspects to the Chief Justice’s observation. First, his Honour has reference to the common law in construing the relevant definition. Secondly, by use of the words ‘for a person represented by counsel’ (and likewise Connolly J’s words ‘if ... he had the benefit of counsel’) the Chief Justice must be taken to accommodate a determination of capacity to instruct counsel where the defendant is self-represented.

[53] Of course, if a defendant is represented by counsel, it may be easier for a defendant to meet the minimum requirements of Presser. As noted by Gibbs, Mason and Wilson JJ in Ngatayi, it is relevant that a defendant is defended by counsel. With the assistance of counsel, a defendant is usually able to make a proper defence so as to be fit to plead and be tried. That does not mean that in all cases where a defendant is self-represented they [sic] are unable to make a proper defence. As stated by the learned trial judge:

‘An assessment of fitness will no doubt take into account, if it is known, whether the accused person has legal representation, and it may be that in some cases that may make a difference to the assessment of whether the accused person has the minimum comprehension necessary, and separately, whether the accused person can endure the trial’.” [Citations omitted]

13. I take Dr Allnutt’s position to be that Mr Choi is neither psychotic nor delusional. Mr Choi’s belief or fear that his trial is politically motivated cannot be said to be irrational. The extent to which Dr Allnutt considered that Mr Choi was compromised in his capacity to communicate with counsel is therefore a function of his entrenched or strongly held beliefs about the motivations of the prosecuting authorities rather than the result of a psychiatric disorder that interfered with his ability to comprehend the nature of the proceedings or his ability to meet the Presser requirements. As Dr Allnutt has indicated, even if Mr Choi has a delusional disorder and chronic adjustment disorder with a depressed and anxious mood, “on balance he is probably fit to stand trial”.

14. In the circumstances, I consider on the balance of probabilities that Mr Choi is fit to be tried. In coming to that conclusion I make the following findings.

15. Mr Choi understands with what it is he has been charged. Dr Allnutt’s report contains a history taken from Mr Choi. It is relevant to observe that Mr Choi’s expressed concern about the reasons he has been charged, including the relationship between the Government of Australia and other foreign powers, itself bespeaks his understanding and appreciation of the charges themselves. For example, Mr Choi’s professed special relationship with the North Korean administration and very senior members of its government make him in his view someone who is likely to have attracted attention and thereby become an obvious or at least potential target of allegations that he has breached the sanctions that have been imposed upon North Korea.

16. Mr Choi is fit to enter a plea. He quite properly protests his innocence. It is apparent that he understands that the prosecution proposes to lead evidence that he is guilty of the offences with which he has been charged. His response to those charges has been rational.

17. Part of what Dr Allnutt said in his report is the following:

“He understood that not guilty would result in his release and guilty would result in him being sentenced. The judge decided if he was guilty or not guilty. The jury decided if he was guilty or not guilty. He appreciated that he could interview the jury.”

18. Although the history taken from Mr Choi by Dr Allnutt is on one view capable of conflating or, on another view confusing, the role of the judge and the jury, it seems clear enough that Mr Choi understands that he will have an opportunity to “interview” prospective jurors in the hope of isolating people who will understand his point of view. That is a not unsophisticated concept. I am satisfied that Mr Choi understood that he had a (limited) right to choose jurors for his trial by exercising his right to challenge.

19. I am also satisfied that Mr Choi will be able to follow the proceedings. Part of what Dr Allnutt recorded included the following:

“He stated that his intention, if he went to trial, was to sack all his solicitors. When he went to trial, he intended to defend himself. He was going to defend himself against the charges, his human rights and address the legal system in Australia.

He understood he was charged with breaking UN sanctions and selling weapons. He was confident he could mount his own defence. While he acknowledged this was a political matter, he would explain that the motivation for the charges was political, but he acknowledged that the purpose of the court hearing would be to decide whether he breached the law or not.

He stated that he was going to plead not guilty.”

20. Although it seems likely, particularly if he represents himself, that Mr Choi will encounter the inevitable and difficult procedural and evidentiary vicissitudes of a very serious criminal trial, I am satisfied that Mr Choi is and will at the very least be capable of following the proceedings of the court in a general sense.

21. Moreover, for reasons that will also be apparent, Mr Choi will be able to mount a defence to the charges. It is not presently to the point to comment upon the terms or possible merit of that defence. It is sufficient to observe that Mr Choi has articulated what his response to the charges might be.

22. Finally, as considered in some detail above, Mr Choi is able to instruct counsel at his trial. The question of whether or not he chooses to do so, or the reasons why his decision to do so may be affected by suspicion or distrust of counsel who in his view do not fully understand or appreciate some aspects of his instructions, is not to the point.

Conclusion

23. In my opinion, Mr Choi is presently fit to be tried for the offences with which he stands charged.

**********

Decision last updated: 15 December 2021