IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2021 0292

THE KING	Crown	
		
v  		
		
EMMA YUOT	Accused	

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JUDGE:	Incerti J	
WHERE HELD:	Melbourne	
DATE OF FITNESS HEARING:	6 February 2023	
DATE OF JUDGMENT:	14 February 2023 	
CASE MAY BE CITED AS:	R v Yuot	
MEDIUM NEUTRAL CITATION:	[2023] VSC 47	

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CRIMINAL LAW – Accused 27 years of age – Accused charged with murder – Whether accused unfit to stand trial – Question to be determined under Part 2 Division 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) by judge alone – Evidence of neuropsychologist and forensic psychiatrists as to diagnosis of schizophrenia and cognitive impairment – Unanimity between prosecution and defence that accused is unfit – Accused is unfit to be tried – Accused not likely to become fit to be tried in the next 12 months – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 6, 91, 92, 93, 94, 95.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Ms R Harper	Office of Public Prosecutions	
			
For the Accused	Mr T Marsh	Bowler, Man & Co	

HER HONOUR:
1	The accused, Ms Yuot, is charged with the murder of her mother-in-law (‘the deceased’). Ms Yuot was 27 years old at the time of the offence.
2	Counsel for the defence sought for the question of fitness to be reserved for investigation, pursuant to s 9(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’).
3	There is a real and substantial question as to the accused’s fitness to stand trial. 
4	Ordinarily, that would trigger an investigation under Part 2 of the Act and the empanelment of a jury to determine the issue. However, pursuant to s 14B(1) Division 2 Part 2 of the Act, the provisions for determination by judge alone apply until s 10 is substituted.
5	On 6 February 2023 I heard the investigation into the fitness of the accused to stand trial. The accused attended via video-link from the Dame Phyllis Frost Centre (‘the DPFC’). Legal representatives and expert witnesses appeared from various remote locations.
6	For the reasons that follow I find the accused unfit to stand trial.
7	I further find that the accused is unlikely to become fit within the next 12 months.
Background
8	Ms Yuot was born in 1993 in a rural part of South Sudan. She received no formal education, and is illiterate. Ms Yuot’s family were exposed to civil war and although they were unharmed they lived in constant fear. They endured famine, and Ms Yuot’s father died of starvation. 
9	In 2010, Ms Yuot met her husband when he visited Sudan. Ms Yuot was married at 16 years of age. Ms Yuot and her husband lived with Ms Yuot’s family in Nairobi for a few years where she had two children.
10	In 2015, Ms Yuot travelled to Australia with her husband and they had two subsequent children. 
11	Ms Yuot’s two older children returned from Australia to Sudan to reside with Ms Yuot’s mother due to concerns relating to Child Protection. Ms Yuot’s two younger children have also travelled to Sudan following this recent event. 
12	Ms Yuot and her husband and their two younger children had been living with the deceased and the deceased’s other son for approximately 12 months at the time of the offence.
Medical History
13	Ms Yuot has a history of psychiatric illness with its onset coinciding with her arrival in Australia in 2015. At this time she experienced her first documented psychotic episode. Ms Yuot has had a total of six in-patient hospitalisations. 
14	On the day of the alleged offending, Ms Yuot was found fit to be interviewed, however, she provided disorganised and irrelevant responses to police questions. Ms Yuot was assessed as floridly psychotic by the time she was placed in the custody cells, and on reception to prison was transferred to a mental health unit.
15	Ms Yuot’s mental health has stabilised while in custody and after recommencing on antipsychotic medications. Ms Yuot is no longer in a mental health unit within the DPFC.
The Prosecution Case
16	The prosecution case is that there had been growing tensions between the accused and the deceased in the lead up to the incident. They argued over issues such as the time the accused would take in the shower, household expenses and care of the children. The deceased asked her son and the accused to leave the property with the children and find somewhere else to live.
17	The prosecution allege that on 21 January 2021, the accused stabbed the deceased to the left side of the chest and sliced her left shin with a kitchen knife before leaving the property with the children and a suitcase.
18	Counsel for the prosecution did not dispute that there may be an issue of unfitness to be tried that requires investigation.
Relevant statutory provisions
19	A person cannot be tried for a criminal offence unless they are fit to stand trial. The question of an accused’s fitness to stand trial is a question of fact.
20	A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or at some time during the trial will be unable to do at least one of six things. They are:
(a)	understand the nature of the charge; or
(b)	enter a plea to the charge and exercise the right to challenge jurors or the jury; or
(c)	understand the nature of the trial as an inquiry as to whether the person committed the offence; or
(d)	follow the course of the trial; or
(e)	understand the substantial effect of any prosecution evidence; or
(f)	give instructions to his or her legal practitioner.
21	Section 92 of the Act states that ‘the question of a person’s fitness to stand trial is to be determined on the balance of probabilities by the court at an investigation into the fitness of the accused to stand trial’. Section 93 of the Act mandates that at a fitness investigation the court must hear any relevant evidence and submissions put to it by the prosecution and defence. It may, if of the opinion that it is in the interests of justice to do so, call evidence of its own motion, require the accused to undergo medical examination or require the results of such examination to be put before the court.
22	Section 94 of the Act permits two findings: that the accused is fit to stand trial or that the accused is not fit to stand trial.
23	Pursuant to s 93(5)(a) of the Act, if the finding is that the accused is not fit to stand trial the court must determine by reference to the relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months.
24	Section 95 of the Act governs what occurs post-investigation by the court. If the accused has been found to be fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures. If the accused has been found to be unfit, but likely to become fit within the next 12 months, the court must adjourn the matter to the end period specified by the court as being that by which the accused is likely to be fit to stand trial. If the accused has been found to be unfit and not likely to become fit within the next 12 months, the court must hold a special hearing under Part 3 of the Act within three months and either grant the accused bail or make a remand order to an appropriate place or a prison.
25	‘Appropriate place’ is a term defined in s 3 of the Act. It means a designated mental health service or a residential treatment facility. In turn, ‘designated mental health service’ has the same meaning in s 3(1) of the Mental Health Act 2014 (Vic) (‘MHA’) and ‘residential treatment facility’ has the same meaning as in s 3(1) of the Disability Act 2006 (Vic).
26	The definition of ‘designated mental health service’ in the MHA includes the Victorian Institute of Forensic Mental Health (‘VIFMH’),. VIFMH is also known as Forensicare. 
Medical Reports
27	The medical evidence before the Court consisted of these reports:
(a)	forensic psychiatric report of Dr Danny Sullivan dated 1 August 2022; 
(b)	neuropsychological report of Dr Izabela Walters dated 15 December 2022; and
(c)	forensic psychiatric report of Dr Jacqueline Rakov dated 30 May 2022.
28	Each of the experts gave viva voce evidence.
29	It was not disputed by any of the experts that Ms Yuot suffers from a psychotic illness and an underlying cognitive impairment.
30	Ms Yuot has historically attracted a diagnosis of schizophrenia and has received treatment for that condition. Dr Rakov was satisfied that Ms Yuot’s symptoms meet the criteria for a DSM-V-TR diagnosis of schizophrenia. 
31	Ms Yuot’s psychotic symptoms were under control at the time of Dr Sullivan’s assessment of her. Dr Sullivan opined that the basis of Ms Yuot’s unfitness to stand trial relates to either cognitive impairment or impaired understanding due to limited legal knowledge.     
32	In his written report, Dr Sullivan was of the view that if Ms Yuot’s issue relates to lack of exposure and her cognitive functioning is not grossly impaired, then Ms Yuot is not likely to be permanently unfit to be tried. Dr Sullivan opined that if that was the case, the issue may be remedied by a process of legal education provided with an interpreter. Notwithstanding this, Dr Sullivan considered that Ms Yuot required neuropsychological testing and a consideration of malingering to determine the extent of any cognitive impairment and whether her level of intellectual functioning is so impaired she will remain permanently unfit to be tried.
33	Ms Yuot was assessed by neuropsychologist, Dr Walters, using a mainstream test of intelligence employed in Australia. Dr Walters conceded that the testing used is not culturally fair as it is affected by level of schooling, and does not take into account cultural differences. However, Ms Yuot was assessed as functioning within the lowest 0.1 percent of the population, and consequently, Dr Walters was satisfied that on the balance of probabilities Ms Yuot meets the criteria for an intellectual disability. 
34	Dr Walters expressed the opinion that it is unlikely that Ms Yuot will gain fitness to stand trial regardless of legal education and input into English language, literacy and numeracy.
Viva Voce Evidence
35	At the hearing of the investigation the prosecution called evidence from neuropsychologist, Dr Walters, and forensic psychiatrist, Dr Sullivan. The defence called evidence from forensic psychiatrist, Dr Rakov.
36	The opinions of the experts were not challenged by either party. During oral evidence, Dr Walters, Dr Sullivan and Dr Rakov each gave some augmentation to the written evidence. It is convenient to set out the viva voce evidence of each expert.
Dr Walters
37	Dr Walters explained that she conducted two assessments of Ms Yuot. The first was a formal intellectual ability test, designed for the Australian context. Dr Walters explained that while it is ‘not culturally appropriate … it does give a clear picture of what the person is capable of in the Australian context, including the legal context, so … it’s very relevant to the matter’ of fitness to stand trial. The second test Dr Walters conducted was an assessment of effort and possible enactment, in order to exclude malingering. Dr Walters confirmed that malingering had been excluded.
38	Dr Walters’ opinion was that the accused ‘is clearly functioning within the intellectually disabled range’.
39	Dr Walters was taken to the s 6(1) considerations. Dr Walters was of the opinion that while Ms Yuot understands the nature of the charge at a basic level, she is not able to understand anything more complex, such as:
other options for plea; challenging jurors; understanding the nature of the trial; and understanding the substantial effect of any evidence given in support of the prosecution.
40	Dr Walters explained that Ms Yuot ‘doesn’t really understand what’s going on in court’, and it was Dr Walters’ belief that Ms Yuot was not capable of giving fully informed instructions in relation to the charge against her.
41	Relying on the factors summarised above Dr Walters considered Ms Yuot is unfit to stand trial. Dr Walters stated that even if Ms Yuot was given ‘intensive tutoring over several years’ she would still not be able to ‘guarantee’ that Ms Yuot would become fit to stand trial. Dr Walters considered that Ms Yuot’s cognitive impairment is ‘a lifelong issue’.
Dr Sullivan
42	Dr Sullivan considered that Ms Yuot’s psychotic symptoms were under control at the time of his second assessment. Dr Sullivan explained that the precise diagnosis of Ms Yuot’s psychotic illness has not been clear due to her atypical presentation and because the duration of symptoms has not been certain. Dr Sullivan considered that schizophrenic syndrome was therefore sufficient to characterise Ms Yuot’s psychotic illness in the absence of longitudinal assessment.
43	In relation to the s 6(1) considerations, Dr Sullivan opined that Ms Yuot understood in basic terms the nature of the charge and that she had capacity to enter a plea to a charge. However, Dr Sullivan was not satisfied that Ms Yuot had the capacity under any of the remaining s 6(1) factors.
44	Dr Sullivan was asked about his concerns regarding the possibility of malingering. Dr Sullivan said that malingering had been excluded by reference to the assessments conducted by Dr Walters. Dr Sullivan explained that Dr Walters used a specific validated tool called the Test of Memory Malingering and that ‘to do poorly on that test requires active effort’. Dr Sullivan was satisfied, based on Dr Walters’ assessment, that malingering was excluded. 
45	Dr Sullivan gave further evidence that Ms Yuot’s situation is simply not a case where ‘mental illness is the specific cause of unfitness and through active treatment that would be resolved’. Dr Sullivan explained that at the time Ms Yuot was assessed by Dr Walters, she was not experiencing symptoms of psychosis and her level of cognitive functioning ‘still remained in an extremely low range’. Consequently, Dr Sullivan considered that Ms Yuot’s cognitive impairment was the dominant cause of her unfitness to be tried.
46	However, Dr Sullivan agreed in cross-examination that it was possible that Ms Yuot’s cognitive impairment is exacerbated by her schizophrenic syndrome, and that the negative symptoms of schizophrenia can include a clinically significant degree of cognitive impairment. In this regard, Dr Sullivan agreed that while Ms Yuot’s cognitive impairment is the dominant cause of unfitness, if Ms Yuot were to experience a relapse of psychotic symptoms, her functioning is likely to further deteriorate.
47	Dr Sullivan did not believe Ms Yuot’s cognitive impairment could be remedied within a 12 month period because her impairment is innate. Dr Sullivan’s evidence was that even if ‘very satisfactory control of [Ms Yuot’s] mental illness’ was achieved, it still would not ‘somehow render her fit to be tried’. 
Dr Rakov
48	Dr Rakov concluded Ms Yuot is not fit to stand trial as a result of an underlying cognitive impairment informed at least in part by under or untreated psychotic illness. 
49	Dr Rakov agreed with the opinions of Drs Sullivan and Walters as to Ms Yuot’s capacity in relation to the s 6(1) matters.
50	Dr Rakov’s evidence was that she would not be confident Ms Yuot could regain fitness within 12 months because if Ms Yuot’s cognitive impairment is caused by or exacerbated by untreated psychotic illness, that ‘is not a reversible state’.
Submissions
51	Counsel for the defence submitted that the unchallenged, unanimous evidence meant that the Court must be satisfied that the accused is unfit to stand trial, on the basis of an enduring cognitive impairment, and will so remain in the next 12 months. Counsel submitted that the accused should be remanded in custody pending the listing of a special hearing. 
52	Counsel for the prosecution adopted the defence submission.
Analysis
53	It is clear from the evidence that the accused experiences periods of psychosis and that there is an underlying cognitive impairment placing her in the intellectually disabled range (notwithstanding the cultural limitations of the assessments conducted). 
54	It is equally clear from the evidence that this impairment means that the accused is and, during the trial, will be unable to meet most, if not all, of the minimum standards for fitness specified in s 6(1) of the Act.
55	That evidence is summarised above and is not here repeated.
56	Further, I accept the evidence of Drs Walters, Sullivan and Rakov that there is little if any chance of improvement in the cognitive capacity of the accused in the next 12 months. Indeed, the evidence suggests this fact is almost certain.
57	I accept the submission of the parties that on the evidence before the Court I must find the accused unfit to stand trial.
58	Accordingly, on the balance of probabilities, I find the accused unfit to stand trial.
59	Further, on the balance of probabilities, I find that the accused is not likely to become fit to stand trial in the next 12 months.
60	The operation of subsections 95(4), (5) and (6) of the Act mean that I must not remand the accused in a prison unless satisfied that there is no practicable alternative in the circumstances. In this matter I am so satisfied. There is no evidence before the Court of any practicable alternative to the DPFC.
Conclusion
61	The orders of the Court will be:
1.	The accused is remanded in custody.
2.	This matter is otherwise adjourned to 9:00am on 22 February 2023 before Judicial Registrar Tueno for further directions.
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