R v Choi

1. [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. [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. [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

1. [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:

2. [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:

3. [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:

Prima facie case

1. [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

1. [8]

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

Fitness to stand trial

1. [9]

   Dr Allnutt’s opinion was expressed in these terms:

2. [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:

3. [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.

4. [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:

5. [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”.

6. [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.

7. [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.

8. [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.

9. [17]

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

10. [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.

11. [19]

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

12. [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.

13. [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.

14. [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

1. [23]

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