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Supreme Court 2 September 2022

R v Fadel

[2022] NSWSC 1192

Homicide
CRIMINAL LAW FITNESS TO BE TRIED ALLEGATION OF MURDER SCHIZOPHRENIA POSSIBLE COGNITIVE IMPAIRMENT ACCUSED UNFIT TO BE TRIED

Citation: R v Fadel [2022] NSWSC 1192
Court: Supreme Court of New South Wales
Date: 2 September 2022
Judge(s): Hamill J

Background

The accused faced charges of murder and attempted murder arising from two separate stabbing incidents in Merrylands in the early hours of 24 August 2020. One victim survived and identified the accused as his attacker. The second victim died from stab wounds sustained minutes later, and the prosecution's case on the murder charge was largely circumstantial, relying in part on the stronger evidence from the attempted murder.

The accused had been in custody since his arrest on the day of the offences, almost two years before the hearing. His lawyers raised concerns about his fitness to stand trial as early as October 2021, and the matter proceeded to a formal inquiry before Hamill J on 2 September 2022.

Three experts reported on the accused's condition: two retained by the defence (a psychiatrist and a neuropsychologist) and one retained by the prosecution (a psychiatrist). Despite some differences in diagnosis and emphasis, all experts agreed the accused was not currently fit to be tried.

  • Whether the accused was unfit to be tried within the meaning of s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • Whether the accused may become fit to stand trial within 12 months of the finding of unfitness, or whether he would not become fit within that period, as required under the Act's binary choice framework.
  • What orders and referrals should follow from those findings.

Decision

Hamill J was satisfied on the evidence that the accused did not meet the minimum fitness criteria set out in s 36 of the Act. The court found the accused would be unable to properly exercise rights of challenge, to provide adequate instructions to his lawyers, or to follow the course of proceedings and understand the substantial effect of the evidence. These conclusions were reinforced during the hearing itself, when the accused appeared to attempt to leave the AVL suite unexpectedly and did not respond in ways indicating he understood what was occurring.

The court identified the underlying impairment as a form of psychosis consistent with paranoid schizophrenia or schizoaffective disorder. It also accepted there was likely some form of cognitive impairment, as identified by the defence's neuropsychologist. The experts differed slightly in their diagnoses but were unanimous that the accused's symptoms caused the incapacity identified under s 36.

On the binary choice required by the Act, regarding whether the accused may or will not become fit within 12 months, the court relied on the opinion of the prosecution's expert, Dr Eagle. Dr Eagle noted that despite almost two years of antipsychotic treatment, the accused continued to display ongoing psychotic symptoms. Hamill J found no reason to depart from that expert opinion and determined that the accused may become fit within 12 months, rather than finding that he will not, resulting in a referral to the Mental Health Review Tribunal.

The court also noted a distinct limitation on its power to direct where the accused should be held pending the Tribunal's inquiry, referring to observations in R v Risi. While it could not make specific orders about the accused's placement, the court expressed hope that the Department of Corrective Services and the Mental Health Review Tribunal would ensure he was accommodated in the most therapeutically beneficial custodial setting.

Orders Made

  • The accused is unfit to be tried pursuant to s 36 of the Act.
  • The accused may become fit to be tried within the next 12 months pursuant to s 47(1)(a) of the Act.
  • The accused is referred to the Mental Health Review Tribunal pursuant to s 49(1) of the Act.
  • The accused is remanded in custody pursuant to s 47(2)(d) of the Act.
  • The Registrar is directed to provide the transcript, exhibits, submissions, and revised judgment to the Mental Health Review Tribunal as soon as possible.
  • A recommendation was made that the Department of Corrective Services and the Tribunal give consideration to ensuring the accused is accommodated in the most appropriate place for continued treatment.

Key Takeaways

  • Unanimous expert opinion that an accused is unfit to stand trial, even where the experts differ on precise diagnoses or on how individual criteria under s 36 are met, will ordinarily satisfy the court's inquiry under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • Under the Act's binary choice framework, a court must determine whether an accused may become fit within 12 months or will not do so. Hamill J applied the approach discussed in R v Risi and confirmed in R v Woodham, finding the threshold for concluding an accused "will not" become fit is a meaningful one that requires clear expert support.
  • In-court observations of an accused's behaviour, such as apparent attempts to leave the proceedings and an inability to respond meaningfully to questions, can themselves reinforce and satisfy the s 36 criteria, particularly regarding the capacity to follow proceedings and to instruct lawyers.
  • Following R v Risi, a real doubt exists as to the Supreme Court's power to direct the specific custodial placement of a person found unfit to stand trial. The appropriate body to address therapeutic placement is the Mental Health Review Tribunal, once it receives the relevant documentation.
  • Where an accused has a possible cognitive impairment alongside a primary psychiatric diagnosis, both conditions are relevant considerations in the fitness inquiry, and courts may take into account neuropsychological evidence alongside psychiatric evidence.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 47, 49

Cases:
- R v Risi [2021] NSWSC 769
- R v Woodham [2022] NSWSC 1154