Supreme Court New South Wales Medium Neutral Citation: R v Yeon (No 2) [2024] NSWSC 1389 Hearing dates: 21 October 2023 Date of orders: 01 November 2024 Decision date: 01 November 2024 Jurisdiction: Common Law Before: Wright J Decision: (1) In respect of count 1, a special verdict of act proven but not criminally responsible is to be entered. (2) In respect of the charge on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW), a special verdict of act proven but not criminally responsible is to be entered. (3) Pursuant to s 61(2) and s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Jiman Yeon is to be detained in his present place of custody, or at such other place as is lawfully determined, until such time as he is released by due process of law. (4) Pursuant to s 67 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Jiman Yeon is referred to the Mental Health Review Tribunal. The Court directs that: (1) The Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of these verdicts and orders within 7 days. (2) The Registrar of the Court is to notify Justice Health of these verdicts and orders and provide a copy of the judgment and orders together with each of the reports of Dr Ellis and Dr O'Dea to Justice Health within 7 days. Catchwords: MENTAL HEALTH – criminal proceedings – defence of mental health impairment – accused unfit to stand trial – whether accused had a mental health impairment at time of carrying out the act – whether the mental health impairment had the effect that accused did not know the nature and quality of the act and that the act was wrong – requirements of s 28(1) and (2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) met – defence of mental health impairment made out Legislation Cited: Criminal Procedure Act 1986 (NSW), s 166 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4(2), 28(1) and (2), 36, 53, 54, 55, 56, 58(1), 59(1) Cases Cited: Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v Siemek (No. 1) [2021] NSWSC 1292 R v Yeon [2024] NSWSC 360 The King v Porter (1933) 55 CLR 182; [1933] HCA 1 Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 Category: Principal judgment Parties: Rex (Crown) Jiman Yeon (Accused) Representation: Counsel: D Patch (Crown) M Avenell SC with A Burkitt (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2022/00393777 Publication restriction: N/A Judgment Introduction 1. The accused, Mr Jiman Yeon, has been charged on indictment with one count of murdering Lindai Parker between 26 and 30 December 2022 at Greendale in New South Wales. In addition, there is also a related offence on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), namely knowingly contravening a prohibition or restriction in an apprehended domestic violence order. 2. The accused has been in custody, bail refused, since 31 December 2022. Background to the Special Hearing 1. For present purposes, it is sufficient to note that, after a hearing before Chen J, on 8 April 2024 the accused was found unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act) and he would not become fit within 12 months. [1] 2. The Director of Public Prosecutions did not advise that further proceedings would not be taken in respect of the murder offence. [2] Accordingly, the matter was listed for a special hearing. [3] The Special Hearing 1. The special hearing took place on 21 October 2024. 2. The purpose of a special hearing is to ensure that, despite the unfitness of the person to be tried in accordance with the normal procedures, the person is acquitted, unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. [4] 3. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings, [5] and the accused must generally be legally represented. [6] In this case, the accused was represented by Ms Avenell of Senior Counsel, who appeared with Ms Burkitt. 4. Although at a special hearing an accused cannot, on his or her own account, enter a plea, the accused is taken to have pleaded not guilty in respect of the offence charged. [7] Consequently, a plea of not guilty was entered by the Court on the accused's behalf in respect of the count of murder, when he was arraigned on 21 October 2024. 5. The matter proceeded to a special hearing before me, as a judge sitting alone, as there was no election made to have the special hearing determined by a jury. [8] 6. The verdicts available at a special hearing include, as set out in s 59(1) of the MHCIFP Act: "(a) not guilty of the offence charged, (b) a special verdict of act proven but not criminally responsible, (c) that on the limited evidence available, the defendant committed the offence charged, (d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged." 1. A special verdict of act proven but not criminally responsible may only be entered under s 59(1) if the judge is satisfied that the requirements of s 28(1) and (2) of the MHCIFP Act are met. [9] 2. My reasons for determination in this special hearing must include the principles of law I have applied and the findings of fact on which I have relied. [10] The Crown case in outline 1. In very brief outline, the Crown case was that the deceased was killed by her son, the accused, in the house they shared, by him hitting her on the head with a wine bottle, at some time between late on 26 and 30 December 2022, and then dragging her body down to the garage, where it was found in the evening of 30 December 2022 by neighbours who gained access to the house at the request of concerned relatives and a friend. When he was arrested on 31 December 2022, the accused indicated that he thought that the deceased was a programmed model of his mother and not his real mother and there would be a "world wipe down" soon. 2. It was also the Crown case that the attack on the accused's mother took place when the accused was subject to an apprehended domestic violence order which contained a prohibition on him assaulting or intimidating her. The defence case in outline 1. The defence case did not involve making any submissions on the physical acts alleged in the Crown case and was effectively confined to there being a special verdict of act proven but not criminally responsible. 2. In response, the Crown's submission was that it was well open to the Court to find, on the evidence, that the accused has a defence of mental health impairment and, accordingly, the Crown's formal position was that it did not oppose the Court entering the special verdict sought by the defence. The evidence 1. The evidence in this matter was put before the Court by the Crown tendering a bundle of documents which included the documents relied upon by the defence as well as the Crown. There was no objection to this bundle which was marked exhibit A. The exhibit contained five statements from police witnesses: 1. the statement of DSC Savic dated 22 February 2023; 2. the statement of PCSC Stevenson dated 2 January 2023; 3. the statement of Sgt Daniel dated 5 January 2023; 4. the statement of Detective Sgt Smith dated 6 January 2023; and 5. the statement of Const Kearney dated 4 January 2023. 1. In addition, exhibit A contained eight statements from the following lay witnesses: 1. the statement dated 31 December 2022 of Peter Song, younger brother of the deceased; 2. the statement dated 31 December 2022 of James Lee, friend of the deceased; 3. the statement dated 31 December 2022 of David Song, nephew of the deceased; 4. the statement dated 31 December 2022 of Zoran Vucetic, a friend visiting Mr Petrovic on the evening of 30 December 2022; 5. the statement dated 31 December 2022 of Golub Petrovic, neighbour of the deceased and the accused; 6. the statement dated 10 January 2023 of Kate Anh, friend of the deceased and proprietor of the company that owned the house where the deceased lived; 7. the statement dated 10 January 2023 of Kenneth Anh, friend of the deceased and proprietor of the company that owned the house where the deceased lived; and 8. the statement dated 1 January 2023 of Jonathan Sultan, proprietor of the business where the accused took his car for a registration inspection and service on 30 December 2022. 1. Exhibit A also included: 1. a verification of death form dated 30 December 2022 by a qualified paramedic certifying that the female found at the Greendale address on that day was deceased as at 10:14 pm; 2. the Expert Certificate of forensic pathologist, Dr Istvan Szentmariay, dated 7 March 2023 recording his recommendation that the cause of death be recorded as "blunt head injury"; 3. the final apprehended domestic violence order (ADVO) dated 18 October 2022 in which the accused is named as the defendant and the deceased as the person in need of protection; 4. the 95-page transcript of the electronically recorded interview with suspected person (ERISP) given by the accused on 7 February 2023; 5. the receipt dated 30 December 2022 from Mediadvice Pharmacy Lurnea for various medications; 6. extracts of medical records from Lismore Base Hospital relating to the accused's admission on 31 December 2022 which included his reporting Capgras delusions that his mother became an "imposter Model" and he needed to kill her to stop the imposters; 7. extracts of medical records from The Tweed Hospital relating to the accused's admission on 31 December 2022 which included a diagnosis of "[a]ccute exacerbation of chronic paranoid schizophrenia"; and 8. a forensic results summary including DNA results indicating presence of the deceased DNA on a bottle of pinot noir from the rear sear of the accused's car, on a pair of shoes from the front seat of that car and on shoes worn by the accused. 1. Finally, exhibit A contained three psychiatric reports: 1. the report Dr Jeremy O'Dea dated 22 January 2024; 2. the report of Dr Jeremy O'Dea dated 17 June 2024; and 3. the report of Dr Andrew Ellis dated 23 August 2023. 1. No witnesses were called to give oral evidence. 2. In addition, the Crown tendered, and the defence did not object to, a document headed "Summary of Evidence" which became exhibit B. From my review of the material in exhibit A, I accept, as counsel for the Crown and for the defence agreed, exhibit B accurately summarised relevant parts of the evidence in exhibit A. Legal Principles and elements 1. In reaching my verdicts in these proceedings, I have applied the following legal principles. Presumption of Innocence 1. The accused is not required to prove his innocence. He is presumed to be innocent unless the prosecution proves that the offences charged were committed. Onus and Standard of Proof 1. The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. Putting to one side for the moment the defence of mental health impairment, in relation to the offences charged, the onus remains on the Crown from beginning to end. 2. The standard of proof is beyond reasonable doubt. Those words and that phrase have their ordinary English meaning. The Crown is not required to prove the truth and reliability of every disputed fact, or to establish everything that its witnesses said in evidence was true. The matters that the Crown needs to establish beyond reasonable doubt are the essential legal ingredients or elements of each of the offences charged. 3. When, as in this case, an accused relies on the defence of mental health impairment, [11] there is an onus on the accused to prove that he is not criminally responsible for his acts because of his mental health impairment. To this extent, there is an onus on the accused in this matter, but the standard of proof is the lesser civil standard, on the balance of probabilities. [12] I shall discuss the defence of mental health impairment in more detail later. 4. That the accused did not give evidence before this Court is a matter of no significance. He was not obliged to do so. No conclusion adverse to him can be drawn from this feature of the matter. Circumstantial evidence 1. The prosecution case in relation to the murder charge is a circumstantial one. In this situation, I may draw reasonable inferences from the facts established on the evidence. However, in doing so, I must first be satisfied of those primary facts. I need not be satisfied of the primary facts beyond reasonable doubt. There is no particular standard of proof to be applied to the individual items of evidence. Rather, it is the combination of facts or evidence that may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence. 2. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole rather than individually or in isolation. It also depends on whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. 3. I have approached the circumstantial case in the present matter by considering and weighing, as a whole, all the facts I have found established by the evidence. Considering all the facts I have found together as a whole, I am to determine whether I can conclude from those facts that the accused is guilty of the offence charged beyond reasonable doubt, by a logical and rational process of reasoning and not mere speculation, conjecture or supposition. 4. When it comes to drawing the ultimate inference of guilt, I must be satisfied that the inference of the accused's guilt is a reasonable one to draw from the facts found and that it is the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole. If there is any other reasonable conclusion open on those facts that is inconsistent with the accused's guilt, then the Crown's circumstantial case will have failed. Witnesses and Fact Finding 1. In the present case, none of the non-expert witnesses was cross examined and there was no dispute of substance in relation to any of the evidence in their statements. I am entitled to accept part of a witness' evidence and reject other parts. Nonetheless, I did not find that I had any reason to reject any significant part of the evidence of any of the non-expert witnesses. Expert Evidence 1. In the present case, the expert evidence relevantly included: 1. evidence from a qualified paramedic as to the deceased being found dead at the scene; 2. evidence from the forensic pathologist as to the blunt injury to the head being the cause of death; 3. evidence from DNA experts as to the results of DNA testing; and 4. expert evidence of the two forensic psychiatrists, Dr O'Dea and Dr Ellis, in relation to the accused's mental state at and around the time of the acts which led to the deceased's death and the defence of mental health impairment. 1. None of the expert evidence was challenged. 2. In relation to all of the expert evidence, if it is not inherently unbelievable, I would need to have a good reason to reject it. I would do so, for example, if it were based on facts that did not accord with what I have found to have been proved on the evidence, if the experts were not briefed with all relevant material, if their conclusions were not adequately explained in the reasoning in their reports or if there were some reason to doubt that the witnesses had relevant expertise. In the present case, however, the experts' opinions were supported by the evidence, which I accept. There was no suggestion that they did not have access to the necessary information when forming their opinions. The reasoning of both experts, by which they reached their conclusions, was adequately exposed in their reports and there was no issue that they possessed the relevant expertise. 3. As to the psychiatric evidence in the reports of Dr O'Dea and Dr Ellis, it is well established that if medical evidence relating to the issue of mental health impairment is unanimous, it cannot be rejected by a tribunal of fact in the absence of other material which casts some doubt upon it. [13] There was no such material in the present case. The evidence from the two psychiatrists was largely consistent and I accept it. 4. Indeed, I accept all the expert evidence in this case. Elements of murder 1. The essential elements of the murder charge, each of which the Crown must prove beyond reasonable doubt, are: 1. Lindai Parker died between 26 and 30 December 2022 at Greendale in New South Wales; 2. her death was caused by a deliberate act or acts of the accused; and 3. the act or acts were done with an intention to kill or to cause grievous bodily harm. 1. In this context, "caused" means "substantially contributed to". Deliberate acts are ones which result from a willed movement of the muscles. They can be thought of as conscious or voluntary acts. Examples of actions that are not voluntary include those which occur because of an epileptic fit, sneezing and sleepwalking. 2. "Intention" has its ordinary English meaning. "Grievous bodily harm" is really serious bodily injury and thus is not like a cut, a bruise or a broken finger where, although it may be an injury, it is not really serious. In order to be really serious bodily injury, however, it does not have to be permanent injury and it does not have to be life-threatening. Elements of contravening ADVO 1. The essential elements of the charge of knowingly contravening a prohibition or restriction in an ADVO, each of which the Crown must prove beyond reasonable doubt, are: 1. the accused was named as a defendant in an ADVO which was current in the period 26 to 30 December 2022; 2. the accused was present in court when the ADVO was made; 3. the ADVO contained a prohibition that the accused was not to assault or intimidate Lindai Parker; 4. the accused knew that the ADVO contained that prohibition; and 5. the accused assaulted or intimidated Lindai Parker between 26 and 30 December 2022. 1. In this context, "assault" means to do any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence and can be committed without touching the other person. "Intentionally" in this case has its ordinary English meaning. An assault is committed "recklessly" by a person if the person foresees the likelihood of inflicting injury or fear and ignores the risk. Violence or the application of force to a person is relevantly "unlawful" if it is done without consent. "Intimidate" relevantly means to do a deliberate act which causes a person to have a reasonable apprehension of injury or violence to the person. 2. If the Crown has not proved each of the elements of each relevant charge beyond reasonable doubt, the verdict is to be that the accused is not guilty of that charge. 3. However, before it can be found on the limited evidence available that the accused committed an offence in question, it is necessary to consider whether the defence of mental health impairment has been established. Elements of defence of mental health impairment 1. Where the defence of mental health impairment is raised, as in the present case, it is necessary first to consider whether the Crown has proved to the requisite standard that the accused deliberately, or voluntarily, did the act or acts charged. If it is concluded that he did, it is next necessary to examine the evidence to determine whether the accused can be held criminally responsible for those act or acts. In the case of the murder charge, it is only when those basic questions are answered adversely to an accused that the issue of the necessary intent for murder can be addressed. [14] 2. The elements that must be proved by the accused on the balance of probabilities to establish a defence on the ground of mental health impairment are: 1. he had a mental health impairment at the time of doing the acts which caused the deceased's death; [15] and 2. that mental health impairment had the effect that he either 1. did not know the nature and quality of the act or acts; or 2. did not know that the act or acts were wrong. 1. In this context, a person has a mental health impairment if: [16] 1. the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and 2. the disturbance would be regarded as significant for clinical diagnostic purposes, and 3. the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. 1. A mental health impairment may arise for various reasons including: [17] 1. an affective disorder, including clinical depression and bipolar disorder, or 2. a psychotic disorder. 1. It may be concluded that an accused did not know that what was done was wrong if, as a result of mental health impairment, the accused could not reason about the matter with a moderate degree of sense and composure. "Wrong" in this context is to be judged according to the everyday standards of reasonable people. [18] 2. If the Crown proves beyond reasonable doubt that the accused caused the death of the deceased by his deliberate act or acts, but the accused establishes, on the balance of probabilities, each of the elements of the defence of mental health impairment, then the verdict should be a special verdict of act proven but not criminally responsible. Findings 1. I now turn to my findings in this matter. None of the evidence was challenged during the hearing nor was there any issue as to what had occurred. I have no reason not to accept generally, and I do accept, the evidence contained in the witness statements from the lay, police and expert witnesses and in the medical and similar records, the forensic results summary and the other documentation including the form of the ADVO and the pharmacy receipt. I shall deal with the accused's ERISP separately. 2. On the basis of all of the evidence considered as a whole, my relevant findings are as follows. The accused's and the deceased's background 1. The accused was born in Korea in June 1981. His mother is the deceased, Ms Lindai Parker, who was born in 1951. The accused immigrated to Australia with the deceased and his brother Jungwon YEON (also known as Michael Lee) in 1990. The accused's father (the deceased's husband) remained in Korea, before passing away in 2002. 2. The deceased's younger brother, Peter Song, lives in Australia as does his son, David Song. Peter Song was not close to his sister and last saw her in September 2022, but he did keep in contact with her by a Korean chat application. Messages sent to Peter Song by the accused included his belief that the world was going to end. 3. The deceased was close to her nephew, David Song, and they spoke frequently. He last saw her in the early evening of 26 December 2022 and last spoke to her on the telephone later that same night. 4. The deceased was friendly with, and had commercial dealings with, Kenneth and Kate Anh. She had known them since about 2015. They owned a house on some acres of land at Greendale in New South Wales and had allowed the deceased and the accused to live in that house rent free for approximately 10 months as at December 2022. 5. Mr Golub Petrovic lived in the property next to the Anhs' Greendale property. 6. The deceased also had a friend, James Lee, whom she had known for about 5 years and whom she would see about once a week. Through the deceased, Mr Lee was introduced to Peter and David Song. James Lee last spoke to the deceased on the telephone just before Christmas 2022. Contact with the deceased between 24 and 28 December 2022 1. On about 24 December 2022, the deceased had dinner with Kate and Kenneth Anh at the Eastwood Hotel. After coffee, she left them saying that she was going to do grocery shopping. 2. On 25 December 2022, the deceased called her neighbour, Mr Petrovic, and told him that she had no power in her house and he indicated that he had the same issue and had received a message from the power company. 3. On 26 December 2022, at about 8:00 am Mr Petrovic saw the deceased wheeling her bin from the front gate back towards the house. Just after 10:15 am that morning, Kate and Kenneth Anh had four missed calls from the deceased but eventually she spoke to Kenneth on the telephone at 10:19 am. The deceased also spoke on the telephone to Kate later that afternoon and David Song was with the deceased at the Eastwood Hotel at about 5:00pm. Later that evening, the deceased spoke on the telephone twice to Kate Anh, the last call being at 8:28 pm, and also to David Song at 9:54 pm. 4. On 28 December 2022, David Song called the deceased at 9:27 pm but she did not answer and did not return his call. 29 December 2022 1. On 29 December 2022, the accused booked in his car, a Kia Rio, by telephone for a registration check at Sultans Automotive Repair, Warwick Farm, for 10:30 am the following day. 2. On 29 December 2022, David Song tried to call the deceased six times between 5:00 pm and 10:33 pm but she did not answer. 30 December 2022 1. On 30 December 2022 at about 9:00 am, James Lee telephoned the accused but he did not answer. 2. At around 10:55 am, the accused telephoned Sultans Automotive Repair and said that he had slept in and asked whether he could bring his car in that day. He was told to come in straight away. 3. At about 11:00 am, the accused returned James Lee's telephone call. Mr Lee said that he had not been able to get in touch with the deceased and asked what had happened. The accused replied, "I had a holiday, and I am now in Canberra, don't worry, my mother lost her phone, she will get a new phone soon and you can talk with her." Mr Lee said, "it's ok now, because I was worried about, but if you say, then I won't have to worry about". 4. On the same day, David Song again attempted to contact the deceased by telephone very early in the morning and at about 11:00 am but was unsuccessful. 5. At 11:47 am, the accused purchased medication for high blood pressure, diabetes, high cholesterol and insomnia and a decongestant nasal spray from a pharmacy in Lurnea. 6. At about 12 noon the accused arrived in his blue Kia Rio at Sultans Automotive Repair at Warwick Farm. While fixing one of the brake lights on the vehicle, the mechanic noticed in the boot two large plastic tubs filled with cigarettes and tins of tuna, teabags and other food. The service of the Kia Rio was completed by about 1:15 pm and the accused paid $400 in cash and left. 7. In the mid-afternoon, David Song drove to the deceased's house and saw the deceased's two vehicles parked in the yard. 8. At 3:18 pm on 30 December 2022, the last geographical location of the deceased mobile telephone was recorded in the vicinity of the entrance onto the M1 Motorway at Wahroonga between Burns Road and about 150 m past the Edgeworth David Ave bridge or overpass. A police search of the area did not locate any item of interest. 9. Later that afternoon, both David Song and Kate Anh tried to call the deceased and became concerned when she did not answer. 10. At 4:58 pm, the accused driving his blue Kia Rio arrived at the McDonald's restaurant located on the M1 Motorway northbound at Jilliby. After buying a meal, he left at 5:16 pm. The accused's car was subsequently recorded on that same day travelling north on the Pacific Highway at Nabiac at about 8:00 pm, Taree at 8:10 pm, Blackman's Point at 8:59 pm and the Kempsey Bypass at 9:21 pm. 11. After work on 30 December 2022, David Song arranged with his father and James Lee to drive out to the deceased's house and they arrived there at about 8:30 pm. At the house they found the front gate closed and locked with a chain and a light on upstairs in the house. 12. Shortly after 9:00 pm, James Lee called Mr Petrovic and asked if he could have a look at the deceased's house. Mr Petrovic came to the deceased's house with Mr Vucedic, who was visiting at the time. They jumped over the gate with a torch and approached the house while Mr Lee remained at the gate, and David Song and his father stayed in their car. 13. Mr Petrovic noticed that the deceased's two cars were there but the accused's blue car was missing. He did not recall seeing the accused's car there for two or three days prior. He and Mr Vucedic approached the house and looked through the glass of the front door and could see clothes had been thrown about and there was a lot of mess. They went around the house checking all the windows and doors in an attempt to enter. They knocked on the door and called out to the deceased but there was no answer and they could not see her. When they approached the garage, they shone the torch through the garage window and Mr Petrovic saw the deceased lying motionless on the floor, face down, with her arms extended directly up past her head. Her she was wearing a white shirt was pulled halfway up her back, exposing her skin, which appeared in a discoloured and he could smell a bad smell coming from inside the garage. 14. Mr Petrovic and Mr Vucedic returned to the front gate and told Mr Lee that the deceased was in the garage and they believe she was dead. Mr Lee called the police at about 9:37 pm and the police arrived 15 minutes later. 15. Police cleared the house and confirmed that no other person was present. Police observed small black ceramic fragments scattered over the stairs next to a blood trail which led down the stairs and through the house to the deceased's body in the garage. The position of the deceased was consistent with her body having been dragged there and it appeared she had been in that position for a number of days as the blood around her appeared to be dry. Upstairs, police observed clothes and blankets strewn across the floor covering the blood trail as well as a broken balustrade post on the stairs. 16. At 10:14 pm, Lindai Parker was confirmed to be deceased by a qualified paramedic who attended the scene and noted that the deceased had suffered injuries incompatible with life and had been deceased for some time. 17. At the scene, police also located a blue esky with bloodstains on the inside and outside and a mop head and handle with bloodstains. 31 December 2022 and 1 January 2023 1. On 31 December 2022 at 1:01 am, the accused purchased petrol, a coffee and food at a BP service station in West Ballina. Nine minutes later, he was arrested. After identifying himself and advising the accused that he was being arrested for the murder of his mother, D Sgt Smith had a conversation with the accused which included: "Accused: Mother, model DSgt Smith: Your mother yes you're under arrest… Accused: She's a model DSgt Smith: Yes you're under arrest for the murder of Lindai Parker. Accused: She's a model programmed [avatar]. DSgt Smith: I want you to understand you are not obliged to say or do anything unless you wish to do so, but whatever you say or do will be recorded on this body worn video and may be used in evidence. Do you understand? Accused: Yeah. … Accused: As you know the wipe down is pretty soon DSgt Smith: The what is? Accused: The world wipe down DSgt Smith: OK Thanks mate Accused: It's gunna be this, this um January. It's going to be and she was a model programmed [avatar]. DSgt Smith: Programmed what? Accused: [Avatar] DSgt Smith: Alright thanks mate". 1. Although D Sgt Smith's evidence was that he heard the accused say "bubbata" or something similar on a number of occasions, I accept that the accused was actually saying "avatar". [19] 2. A search of the accused's vehicle at that time revealed on the rear seat a wine bottle with blood on it, $7000 in cash, large amounts of medicine, and cigarettes. 3. The accused was taken to Ballina Police Station where he was assessed by NSW Ambulance Officers, scheduled, and taken to Lismore Base Hospital. The accused was detained under the Mental Health Act 2007 (NSW) as he was determined to be suffering a psychotic relapse of schizophrenia and consequently was considered a risk to the community. At the hospital, the accused made various statements including what follows. 1. When asked why he was in the Emergency Department, he stated "'murder, but it's ok, it was not her, it was an imposter model … model program [avatar]', explaining that [an avatar] was a symbol of hatred towards god. The accused then stated 'do you know how hard that was - it was so hard, it had to be planned for 3 years.'" 2. He was a world movie director who was with Maria Nikola with whom he had two children, but she cheated on him and they were not his children. He had three billion thousand wealth at the time and he died an honorary samurai death. When he was falling into hell, the Lord saved him and a miracle happened and turned him into a saint. 3. He went to Cumberland Hospital and they tried to kill him more than 12 times but they failed. Westmead Hospital gave him an injection to get rid of him but that failed. 4. "The world wipe down is pretty soon, Jan". 5. He was hearing captured Koreans but could not see them as he did not have enough abilities, although he could see them if he looked. 6. He admitted to hearing voices of two god-like figures that talk to him, telling him to kill his fake mother, stating she was a "babylon [?avatar] imposter model" and that he needed to kill her to "stop the imposters". He confirmed the voices were not telling him to do anything currently and he would ignore them if they did and denied thoughts of harming others. 1. At 1:30 pm on 31 December 2022, police attended Lismore Base Hospital and conducted a forensic procedure with the accused who was then transferred to the Tweed Hospital for a Mental Health Assessment. 2. On 1 January 2023, the accused was assessed and diagnosed with "acute exacerbation of chronic paranoid schizophrenia". It was noted that he was experiencing Capgras delusions, which are a psychiatric disorder in which a person holds a delusion that a friend, spouse, parent, another close family member or pet has been replaced by an identical impostor. The accused was cooperative and provided with medication before being discharged into police custody. Forensic and DNA evidence 1. The forensic and DNA evidence established the following. 1. Blood found in two places on a mop located in the entrance foyer of the Greendale house had a DNA profile matching that of the deceased. 2. Two blood stains on the bottle of pinot noir found in the rear seat of the accused's blue Kia Rio had a DNA profile matching that of the deceased. 3. Two tape lifts of blood from the outside of a jogger found in the front seat of the accused's Kia Rio had a DNA profile matching that of the deceased. 4. A swab from the inside of the left shoe worn by the accused returned a mixed DNA profile from which the deceased could not be excluded as a contributor. The ADVO 1. The form of ADVO in evidence established that the order was made on 18 October 2022 and its duration was two years from that date, the accused was present in court when it was made, he was named as the defendant, the deceased was the person in need of protection under the order and the ADVO prohibited the accused from assaulting or intimidating the deceased. The accused's ERISP 1. On 7 February 2022, the accused participated in a lengthy electronically recorded interview. During that interview, the accused gave an account of what occurred when the deceased was killed. That account included, in substance, what follows. 1. He and his mother (whom he described as his step-mother) were upstairs and, at the time, she was "chucking a psycho" because he was not cleaning up his room, so she pulled his hair and slapped him in the face. He stood up and moved and she chased him to where the stairs were. As they were standing there, they had an argument and then she pulled his hair again. He pushed her and said "leave me alone". She grabbed the balustrade and it broke. 2. The accused's mother got mad again and they both went down the stairs. She attempted to come back up so he went down and she chased him down the stairs and they stood at the front entrance. 3. She was "chucking a psycho" at him and the wine bottle was sitting next to the entrance and then he realised he had hit her. He thought it was a full, unopened bottle of red wine. He had a lot of wine and the wine bottle was downstairs next to the family room, next to the entrance. He probably grabbed the wine bottle and he just got mad (the accused at this point in the ERISP made a swinging motion with his right hand). At this point he could not remember, and said he was just going crazy. 4. After he hit the deceased, he then realised "[o]h this is wine bottle" and "damn, yeah". He held the skinny part of the bottle and hit her with the big part. He thought maybe he hit her three times or more than three times because there was a lot of blood there. 5. He believed the bottle of wine was inside his car still, as he took it with him. He had thought to throw it away or something, but he did not because he forgot about it. 6. He accepted that he hit the deceased more than once in the head with the wine bottle. 7. The accused explained: "Oh, after, then, you know, when the, my rational came back oh, yeah … I was, my heart go shrink. You know? I didn't, you know? I didn't expect that kind of to happen … And abuse, that was the first time ever in my life gone, me gone that mad …emotionally exploded it's like, my eyes like on flip-side over … And … once she was dead um, realise after that me, realised um, just if first I've done and um, yes. And um, you know? Because scary when I see the dead, dead like I protect her to the, the garage, that's it … put the dead body to the garage, is, I don't want that uh --- And that's it." 1. He moved the body, dragging her by the legs because he did not want to see it and there was blood on her head. Once he got the body into the garage, he just left it there. He knew that she was dead at that time. 2. He put clothes and blankets from her room on the floor to cover the blood as he did not want to see the blood. 3. He thought it occurred on 27 or 28 December 2022 during the day and when no one else was at the house. No one came to the house in the three days between when he killed her and when he left the house but he recalled that someone did telephone and he told them his mother had lost her mobile telephone. 1. During the ERISP, the accused also said that it was a tragedy and he took full responsibility. He did not deny it but also said that he did not plan to do it. 2. As to what occurred after the deceased was killed, the accused said that he planned to go for a last drive to the Gold Coast as he knew he was going to get caught by police and he left home on 30 December 2022. On that day, he threw the deceased's telephone away in a river. 3. He gave an account that on the day he left Sydney and drove to Ballina, he got the pink slip on his car done and car maintenance. He also stopped at Strathfield to sell his Rolex watch as he needed cash and he got about $5,000 for it. He was then off to the Gold Coast and only stopped for petrol. 4. He said that, when he was arrested, he was frightened as the officer pulled a gun on him and his English was not sufficient. He was trying to say that the deceased was not his biological mother, not his real mother, she was a model, an imitation or the model was the step-mother. He did not know the word for "not biological mum". He was very tired that day as it had been a long drive and he was very scared. 5. When asked about blood located inside his car, he stated it was probably from Lindai Parker from the wine bottle. He also said that he could not remember what clothes he was wearing at the time. 6. The accused's account, given in the ERISP, of what physically occurred is not inherently incredible and is strikingly consistent with a great deal, if not the entirety, of the other evidence in the case, which I have accepted. I accepted the accused's account of his physical actions given in his interview. Other aspects of the accused's ERISP provided support for the opinions of the two psychiatrists. Preliminary conclusions 1. Having regard to the evidence as a whole, and, in particular, to my findings referred to already, I am satisfied beyond reasonable doubt that, between 27 December 2022 and 29 December 2022, the accused deliberately hit his mother on the head with a full wine bottle a number of times which caused her death. Thus, the Crown has discharged its onus of proof in respect of the physical elements, elements (1) and (2), of the offence of murder. 2. In light of the evidence as a whole and my findings, I am also satisfied to the requisite standard that the Crown has discharged its onus of proof in respect of the physical elements of the contravention of a prohibition in an ADVO, namely elements (1), (2), (3) and (5). 3. It is necessary now to consider the question of whether the accused was criminally responsible for doing the acts which I have found occurred in relation to each of the offences charged, before dealing with the question of any specific intention required for those offences, should that be necessary. [20] The accused's mental health impairment 1. The defence of mental health impairment relied upon by the accused raises the question whether the accused can be held criminally responsible for his acts, having regard to the evidence before the Court of the accused's mental condition at the time of the relevant acts in December 2022. 2. For the reasons I have already given, I accept the consistent evidence of the two forensic psychiatrists. Dr Ellis 1. Dr Andrew Ellis, forensic psychiatrist, provided a report dated 23 August 2023 concerning the accused. Dr Ellis conducted a clinical interview with the accused on 13 July 2023 at Long Bay Correctional Centre Prison Hospital for two hours. After recording in some detail the accused's then current clinical issues, psychiatric history, substance use and addiction history, medical history, criminal history, background and development, account of the material time and the results of his mental state examination, Dr Ellis' opinion included: "he meets criteria for a diagnosis of schizoaffective disorder, bipolar sub- type, most recent episode manic. He presents with over a decade of symptoms including copious delusions, hallucinations and multiple sensory modalities, formal thought disorder, manic mood states, restricted affect (emotional expression) lack of awareness of his symptoms as the product of mental disorder (anosognosia) and poor general psychosocial function. … While he shows some response to antipsychotic and mood stabiliser treatment with resolution of mood disturbance he displays consistent ongoing delusions, hallucinations and poor insight. This is despite consistent treatment with at least two antipsychotics which indicates he has a treatment resistant condition. " 1. Dr Ellis then recorded and explained his opinion that it was likely that a court would find that he was unfit to be tried. Finally, Dr Ellis considered the accused's mental state at the material time and concluded as follows: "[a]s noted I consider [the accused] has a mental health impairment is defined in the [MHCIFP Act]. [The accused] formed a delusional belief that the deceased was actually some sort of clone and not human. He thought they would likely harm him. He linked this belief with multiple other bizarre beliefs including that he was a saint, prophet and had communication from God. He thought that his actions were directed by god and therefore inherently right. He made a number of statements consistent with this belief to arresting police, hospital staff and currently. He had expressed similar beliefs in hospital admissions in 2021 and 2022. In November 2022 he was continuing to tell a psychiatrist the victim was his 'stepmother', which may be a more attenuated form of delusion that she was not his real mother. These beliefs were associated with strong emotions and disorganised thought process. On this basis the delusional beliefs at the time of the act impaired his ability to know the nature and quality of his acts (thinking he was killing a clone rather than a human), and that what he was doing was wrong (in that he believed it was right to kill clones and he had a divine imperative to do this). His disorganised thoughts and elevated grandiose emotions associated with these beliefs would have impaired his ability to reflect with a moderate degree and sense of composure on his thoughts and actions. Police and hospital witnesses in the close aftermath note how unusual his statements are, outside of the reasoning of ordinary persons. Therefore, on the basis of his history of schizoaffective disorder with symptoms of delusions, thought disorder, mood disturbance and hallucinations both before and after the charge, his account of his mental state at the time and observations closely after it is likely that a court could find the defence of mental health impairment open to him. In regards to substantial impairment of mind, as noted in the opinion regarding the mental health impairment defence delusions, hallucinations, mood disturbance and thought disorder all impacted his ability to perceive events, know right from wrong and to control his actions in a clinically substantial manner." Dr O'Dea 1. Initially, Dr O'Dea interviewed the accused on 16 October 2023 in order to provide an opinion as to his fitness to stand trial. After setting out a detailed account of the accused's background and relevant history and treatment, Dr O'Dea formulated his opinion in his report of 22 January 2024 in the following terms: "61. On the basis of [the accused's] history and presentation at our interview, I consider that he suffers a Severe Chronic Treatment Resistant Schizophrenic Illness, characterised by a marked disorder in the form and content of his thinking, with an ongoing grandiose, religiose and persecutory delusional system involving 'wipeout' and his mother's identity, auditory hallucinations, disorganised thinking, effective instability, disorganised behaviour, and problems with attention, concentration, insight and judgement; all typical of schizophrenia. 62. [The accused] presented at our interview on 16 October 2023 as acutely psychotic, with significant disorder in the form and content of his thinking, including significant emotional lability, problems with attention and concentration, and limited insight. 63. I note this presentation on 16 October [2023] in the context of his ongoing psychiatric treatment in a correctional mental health facility at the time." 1. Dr O'Dea then concluded that the accused was not then currently fit, from a psychiatric perspective, to be tried and he considered that it was unlikely the accused would become fit to be tried within a 12-month timeframe. 2. Subsequently, Dr O'Dea was asked for his opinion on whether the accused had the defence of mental health impairment available to him in respect of the charges which he currently faces. For this purpose, Dr O'Dea interviewed the accused on 6 June 2024 via audiovisual link to the Long Bay Prison Hospital Complex and prepared a report dated 17 June 2024. In that report, after reviewing further information from the accused, video footage from 31 December 2022 and the ERISP, Dr O'Dea confirmed in effect his opinion set out in his previous report at par 61 and noted that once again the accused presented at the interview on 6 June 2024 as acutely psychotic, with significant disorder in the form and content of his thinking, and significant emotional lability, and poor insight and judgement. 3. More specifically Dr O'Dea's opinion included: "30. On the basis of [the accused's] history of a severe chronic treatment resistant schizophrenic illness, the natural history of such a condition, the progress of his schizophrenic illness in the months leading up to the alleged offence of the death of his mother in December 2022, his alleged conduct in relation to the alleged offences of December 2022, his explanation for this conduct in the days subsequent to the alleged offences; and his reported clinical presentation on his admission to Tweed Heads Hospital on 31 December 2022; I would consider it reasonable to assume, from a psychiatric perspective, that he was suffering an acute episode of his severe chronic treatment resistant schizophrenic illness at the time of the alleged offences in December 2022. 31. Notwithstanding that, at review on 30 September 2022 and 11 November 2022, subsequent to his admission to Liverpool Psychiatric Hospital in August 2022 with acute psychosis, [the accused] was reportedly responding to the prescribed antipsychotic medication and considered to be stable; on the basis of the natural history of a severe chronic treatment resistant schizophrenic illness, such as [the accused's], with a history of him being acutely psychotic in August 2022 and again on 31 December 2022, it is likely that he was acutely psychotic at the time of the alleged offences in December 2022. 32. [The accused's] acute psychosis at the time of the alleged offence would meet the criteria for a Mental Health Impairment under [the MHCIFP Act]. 33. That is, at the time of the alleged offences, in the context of his acute psychosis related to his Severe Chronic Treatment Resistant Schizophrenic Illness, [the accused] had an ongoing disturbance of at least thought, mood and perception that would be regarded as significant for clinical diagnostic purposes and that impaired his emotional well-being, judgement and behaviour. 34. Furthermore, it would be reasonable to assume and conclude that [the accused's] conduct in relation to the alleged offences was directly related to the Mental Health Impairment at the time. 35. It would seem reasonable to assume and conclude that at that time of the alleged offences, [the accused's] Mental Health Impairment had the effect that he did not know the nature and quality of his conduct in relation to the alleged offence, and did not know that his conduct in relation to the alleged offences was wrong. 36. It could be argued that on the basis of [the accused's] delusional beliefs that his mother was a, 'model program avatar', and 'not a real human being', his beliefs about 'the wipeout', and his belief that in committing the alleged offence of the murder of his mother, he was not killing a human being, and therefore not committing a murder. As such, it could be argued that his Mental Health Impairment had the effect that he did not know the nature and quality of his conduct in relation to the alleged offences. 37. Regardless, I consider, at least on the balance of probabilities, that [the accused's] Mental Health Impairment at the time of the alleged offences had the effect that he would not have been able to reason with a moderate degree of sense and composure about whether his conduct in relation to the alleged offences, as seen by a reasonable person, was wrong; and as such, would not have known that the conduct was wrong." Mental health impairment defence – consideration 1. Dr Ellis and Dr O'Dea gave slightly different descriptions of their diagnoses of the accused at the time of the acts in question, being "schizoaffective disorder, bipolar sub-type, most recent episode manic" that was treatment resistant, or "severe chronic treatment resistant schizophrenic illness" but the difference did not, in my view, indicate any substantial disagreement between the psychiatrists. Based on their evidence, which I accept, I am satisfied on the balance of probabilities that, at the relevant time, the accused had at least a temporary disturbance of thought, mood or perception, which was significant for clinical diagnostic purposes and which impaired his judgment and behaviour, as a result of his schizophrenic disorder or illness. As a result, I am satisfied that the accused had a mental health impairment of the type described in s 28 of the MHCIFP Act at the time of the acts which led to the deceased's death. 2. I accept Dr Ellis's opinion that the accused's delusional beliefs at the relevant time, for example, thinking he was killing a clone rather than a human impaired his ability to know the nature and quality of his acts. In addition, his delusional beliefs meant that he did not know that what he was doing was wrong, as judged by everyday standards of reasonable people, in that he believed it was right to kill clones and he had a divine imperative to do this. Furthermore, his disorganised thoughts and elevated grandiose emotions associated with those beliefs impaired his ability to reflect with a moderate degree and sense of composure on his thoughts and actions and thus he did not know that what he did was wrong. 3. I also accept Dr O'Dea's opinion that "[the accused's] Mental Health Impairment had the effect that he did not know the nature and quality of his conduct in relation to the alleged offence, and did not know that his conduct in relation to the alleged offences was wrong". In essence, Dr O'Dea's reasoning in respect of these conclusions was the same as Dr Ellis's. 4. In my view, Dr Ellis's and Dr O'Dea's opinions were well supported and confirmed by the accused's psychiatric history, his comments to the arresting police on 31 January 2023, his statements when assessed at Lismore Base Hospital and the Tweed Hospital and his answers in the ERISP. 5. Having regard to the evidence as a whole and, in particular, the unchallenged and consistent opinions of the psychiatrists, I am satisfied to the requisite standard that the accused has proved each of the elements of the defence of mental health impairment in respect of each of the offences of murder and knowingly contravening a prohibition in an ADVO and that the requirements of s 28(1) and (2) of the MHCIFP Act have been met. 6. In these circumstances where the defence of mental health impairment has been made out in respect of each offence, it is not necessary to consider further whether any requisite intent has been established for any of the offences charged. 7. The appropriate verdict is, therefore, a special verdict of act proven but not criminally responsible in respect of count 1 on the indictment and of the charge on the s 166 certificate. Additional remarks 1. Before announcing the orders of the Court, it remains to acknowledge that the death of Lindai Parker was a human tragedy, rather than allowing it to be treated only as the subject of a criminal proceeding by way of a special hearing. Ms Parker's death in such horrifying circumstances would have devastated those who loved or knew her. They have the Court's sympathy for their loss. Orders and directions 1. Returning now to the Court's orders, for all these reasons, the orders of the Court are: 1. In respect of count 1, a special verdict of act proven but not criminally responsible is to be entered. 2. In respect of the charge on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW), a special verdict of act proven but not criminally responsible is to be entered. 3. Pursuant to s 61(2) and s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Jiman Yeon is to be detained in his present place of custody, or such other place as is lawfully determined, until such time as he is released by due process of law. 4. Pursuant to s 67 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Jiman Yeon is referred to the Mental Health Review Tribunal. 1. Further, the Court directs that: 1. The Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of these verdicts and orders within 7 days. 2. The Registrar of the Court is to notify Justice Health of these verdicts and orders and provide a copy of the judgment and orders together with each of the reports of Dr Ellis and Dr O'Dea to Justice Health within 7 days. ********** Endnotes 1. R v Yeon [2024] NSWSC 360. 2. Under s 53 of the MHCIFP Act. 3. In accordance with s 55 of the MHCIFP Act. 4. Section 54 of the MHCIFP Act. 5. Section 56(1) of the MHCIFP Act. 6. Section 56(3) of the MHCIFP Act. 7. Section 56(5) of the MHCIFP Act. 8. Section 58(1) of the MHCIFP Act. 9. Section 59(3) of the MNCIFP Act. 10. Section 59(2) of the MHCIFP Act. 11. Section 28(1) of the MHCIFP Act. 12. Section 28(2) of the MHCIFP Act. 13. Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337] (R A Hulme and Bellew JJ) and the cases there cited. 14. Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28, R v Huynh [2023] NSWSC 920 at [44]. 15. Until the contrary is proved, persons are presumed not to have a mental health impairment, s 28(3) of the MHCIFP Act. 16. Section 4(1) of the MHCIFP Act. 17. Section 4(2) of the MHCIFP Act. 18. See the jury direction quoted in The King v Porter (1933) 55 CLR 182 at 189-190; [1933] HCA 1. 19. This was also accepted by Dr O'Dea for example in his report dated 17 June 2024 at pars 23 and 36. 20. Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28, R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32]; R v Siemek (No. 1) [2021] NSWSC 1292 at [16]. 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: 01 November 2024