Citation: R v Fazah [2012] NSWSC 1243
Court: Supreme Court of New South Wales
Date: 16 October 2012
Judge(s): R A Hulme J
Background
The accused faced an indictment in the Supreme Court alleging he murdered his child and wounded his wife with intent to murder her, with an alternative count of wounding with intent to cause grievous bodily harm. He had been in custody since his arrest on 1 January 2011. Before any trial could proceed, the court was required to determine whether he was fit to be tried.
A fitness hearing ran over two days. The Crown relied on expert evidence from a forensic psychiatrist, while the defence called two experts of its own, supported by affidavit evidence from the accused's solicitor describing her difficulties in taking instructions from him.
Legal Issues
- Whether the accused was fit to be tried, assessed on the balance of probabilities against the criteria established in R v Presser (1958)
- Whether evidence of malingering, specifically feigning memory loss and mental illness, was sufficient to establish fitness to stand trial
Decision
Hulme J found the case difficult but ultimately concluded that the accused was unfit to be tried on the balance of probabilities.
The Crown's expert, Dr Wilcox, concluded the accused was likely malingering: feigning both memory impairment and mental illness. Her opinion was substantially based on his pre-custody functioning, including partial university education, employment as a security guard, and demonstrated English proficiency. However, under cross-examination, several of the specific foundations for her opinion were weakened. Notably, her inference that the accused's family had coached him to feign memory loss was undermined by evidence that he had claimed memory loss before any family contact occurred after his arrest.
Critically, Hulme J drew attention to what Dr Wilcox's opinion actually amounted to in substance. When pressed, she accepted that her position was not that she was affirmatively satisfied the accused was fit, but rather that she was not satisfied he was unfit, and therefore he should be fit based on his pre-custody capacity. That distinction carried significant weight in the court's analysis.
The defence experts, Dr Nielssen and Dr Seidler, both accepted that some degree of malingering or exaggeration was present. Nevertheless, both maintained that genuine mental illness and severe functional impairment also existed alongside that exaggeration, and both concluded the accused was unfit. The accused's solicitor's affidavit corroborated this, describing persistent difficulties in obtaining meaningful instructions over more than a year. The court accepted that malingering and genuine unfitness were not mutually exclusive, and that the defence evidence supported a finding of unfitness even after accounting for the element of exaggeration.
Orders Made
- The court found the accused unfit to be tried on the balance of probabilities
- The matter was referred to the Mental Health Review Tribunal under s 14 of the Mental Health (Forensic Provisions) Act 1990
- The accused was remanded in custody pending the Tribunal's determination under s 16 of the Act
- The court registry was directed to provide specified documentation to the Tribunal within 14 days
Key Takeaways
- A finding that an accused is malingering does not, without more, establish fitness to be tried. Malingering and genuine mental illness or functional impairment can coexist.
- The Supreme Court drew a meaningful distinction between an expert who is affirmatively satisfied an accused is fit, and one who is merely not satisfied the accused is unfit. The latter falls short of the positive finding the fitness inquiry requires.
- Where defence experts accept the presence of malingering but still conclude the accused is unfit, their evidence is not necessarily undermined. The court may still accept their ultimate opinion.
- Under the Presser criteria, fitness to be tried requires demonstrated capacity across a range of functional abilities, including the ability to follow proceedings, understand the effect of evidence, and provide meaningful instructions to counsel. Evidence from the accused's solicitor about persistent difficulties in obtaining instructions can carry weight in this assessment.
- Once unfitness is established, the Mental Health (Forensic Provisions) Act 1990 (NSW) governs the subsequent process, including referral to the Mental Health Review Tribunal and continued remand pending the Tribunal's determination.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16
Cases:
- R v Presser (1958) VR 45 (the foundational authority establishing the criteria for fitness to be tried, referenced in the judgment but not formally cited in the metadata)