R v Chong [2011] NSWSC 914

Supreme Court New South Wales

Medium Neutral Citation: R v Chong [2011] NSWSC 914 Hearing dates: 18/08/2011 Decision date: 18 August 2011 Jurisdiction: Criminal Before: Fullerton J Decision: Accused is unfit to be tried. Catchwords: CRIMINAL LAW - murder - judge alone trial - fitness hearing Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] ALR 248 Category: Principal judgment Parties: The Crown Do Hyun Chong (Accused) Representation: A McCarthy (Crown) M Austin (Accused) Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Accused) File Number(s): 2009/232540

Judgment 1On 18 August 2011 I determined pursuant to s 10 of the Mental Health (Forensic Provisions) Act 1990 ("the Act") that the accused was unfit to be tried on an indictment charging him with the murder of Jing Hwa Park on 17 May 2009. I also made orders in accordance with s 14 of the Act. 2I am obliged under s 11 of the Act to identify the principles of law I applied in making that determination and the findings of fact upon which I relied. What follows are my published reasons for so doing. 3The charge of murder was laid in October 2009 following an extensive police investigation into the brutal killing of the deceased. The accused was a person of interest in that investigation as a result of what police learned of his working relationship with the deceased and the very considerable and sustained conflict between them as revealed by conversations between the deceased and a friend in the weeks leading up to his death. It was also the accused who alerted police to the severely beaten body of the deceased in the work premises apparently some hours after his death. 4The evidence tendered on the fitness inquiry comprised a Crown case statement and police facts prepared in support of the charge of murder. An affidavit of Ms Robyn Clark, the accused's solicitor, was read without objection. It annexed a report of Dr Nielssen, forensic psychiatrist, dated 12 September 2010 obtained on behalf of the accused; a report of Dr Allnutt, forensic psychiatrist, dated 18 July 2011 obtained by the Crown; and a report dated 29 June 2011 prepared by Dr Sim, a consultant physician and geriatrician holding the position of Clinical Director of the Aged Care and Rehabilitation Unit within the Long Bay Correctional Centre. 5In so far as the discrete question of the accused's fitness to be tried is concerned, Drs Nielssen and Allnutt were of the joint opinion that by reason of severe cognitive impairments under which the accused currently labours he could not meaningfully participate in a criminal trial. In particular, after considering the test results of the accused's orientation undertaken by Dr Nielssen, short-term memory, concentration, verbal fluency and visuo-spatial skills showed impairment across all domains and what Dr Allnutt described as poor performance on cognitive testing, I am satisfied his capacity to follow trial process and to be able to provide instructions to his legal representatives would be severely compromised. This, together with his age of 69 years and to some extent the cultural difficulties presented by the fact that he was born in Korea, also compromise his capacity to understand the nature of the proceedings and the effect of the evidence led against him which in turn would severely compromise his capacity to exercise an informed and rational decision as to whether he should exercise his rights as an accused in defence of the charge. 6These findings are in accordance with the test of fitness to be tried in R v Presser [1958] ALR 248. 7Neither Dr Nielssen nor Dr Allnutt was unable to determine whether the accused had any underlying psychiatric disorder. The very substantial brain damage from which he suffered was sustained consequent upon a traumatic head injury on 13 July 2009, which occurred within days of the accused being interviewed by police and invited to account for material discrepancies between the version of events he gave to the investigating police on the day of the murder, including his movements that day and for a number of days thereafter. 8On the morning of 13 July 2009 independent witnesses saw the accused veer onto the incorrect side of a major thoroughfare in Western Sydney into the path of an oncoming truck into which he collided head on. He was transported to Liverpool Hospital where he underwent emergency surgery for a number of injuries, inclusive of the head injury related to his current brain damage. The Court Attendance Notice was served on the accused in Liverpool Hospital after which he was remanded in custody. 9It would appear that his condition remains unchanged from when last seen by Dr Allnutt. I am satisfied that his current deficits are likely to be permanent although he has shown improvement in his functional skills such that he is currently independent in servicing his daily needs in custody. The report of Dr Sim does reflect the fact, however, that the accused is currently only partially orientated and that he has no meaningful understanding of why he is in a prison hospital frequently requesting to leave to return to Perth. In that connection I note that he has no family support and that a Limited Guardianship Order made in November 2009 remains in force.