R v He - [2022] NSWSC 847

Supreme Court

New South Wales

Medium Neutral Citation: R v He [2022] NSWSC 847
Hearing dates: 20 – 22 June 2022
Date of orders: 29 June 2022
Decision date: 29 June 2022
Jurisdiction: Common Law
Before: Wilson J
Decision:
(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.

Catchwords:
CRIME – fitness hearing – accused cognitively impaired after sustaining a severe traumatic brain injury – conflict in expert evidence as to impact on impairment on fitness to be tried – evidence pointing to malingering

Legislation Cited:
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
R v Dennison (Court of Criminal Appeal (NSW), 3 March 1988, unrep)
R v Drummond (Court of Criminal Appeal (NSW), 27 May 1994, unrep)
Russell v His Majesty’s Advocate [1946] JC 37; [1946] SLT 93

Category: Principal judgment
Parties: Regina (Crown)
Weijie He (Accused)
Representation:
Counsel:
P Hogan (Crown)
M Dennis SC/G Harrison
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Access Legal (Accused)

File Number(s): 2021/17077
Publication restriction: Previously restricted to the parties pending resolution of trial proceedings or further order

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…

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.

Continue reading R v He

Details

AGLC: R v He [2022] NSWSC 847
Case: [2022] NSWSC 847
Decision Date: 29 June 2022

CaseChat Overview and Summary

The case of R v He involved a criminal defendant who had sustained a severe traumatic brain injury. The dispute was centered around the defendant's fitness to be tried, with conflicting expert evidence presented regarding the extent of the cognitive impairment resulting from the brain injury. The court had to determine whether the defendant was fit to be tried and if there were any signs of malingering in the presented evidence. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was to ascertain whether the defendant, who had suffered a severe traumatic brain injury, was cognitively impaired to the extent that they were unfit to be tried. Additionally, the court needed to assess the credibility of the expert evidence, particularly in light of indications that the defendant may have been exaggerating or fabricating symptoms of cognitive impairment. This required a careful evaluation of the medical evidence and expert opinions presented.

The court found that the evidence indicated the defendant had indeed sustained a severe traumatic brain injury which resulted in cognitive impairment. However, the court was not convinced that the impairment was so significant as to render the defendant unfit to be tried. The court also found that the evidence suggested the defendant may have been malingering, particularly in light of the conflicting nature of the expert evidence. The court ultimately concluded that the defendant was fit to be tried, and the evidence of malingering did not preclude a fair trial from proceeding.

The final orders of the court were that the defendant was fit to be tried and the trial proceeded accordingly. The court did not make any orders regarding the malingering, as the primary focus was on the defendant's fitness to be tried.

Orders