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Supreme Court 23 February 2023

R v Al-Qas Soomo

[2023] NSWSC 127

Assault & violenceHomicide
CRIMINAL LAW FITNESS TO STAND TRIAL ALLEGED MURDER OF WIFE CAUSE OF PRESENTATION UNCLEAR AGREEMENT BETWEEN PARTIES

Citation: R v Al-Qas Soomo [2023] NSWSC 127
Court: Supreme Court of NSW
Date: 23 February 2023
Judge: McNaughton J

Background

The accused faced an indictment in the Supreme Court containing four charges, the most serious being the alleged murder of his wife at their Fairfield home on 30 November 2020. The Crown case was that he wrapped a rope around her face and fatally stabbed her, then walked outside and called police, making admissions to both officers and neighbours. Three further charges on the indictment related to alleged conduct nine days earlier: assault of each of his two daughters and being armed with a knife with intent to intimidate.

A question about the accused's fitness to stand trial was raised on his behalf during a case conference at Parramatta Local Court in June 2021. The matter was subsequently listed before McNaughton J for a fitness inquiry under Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act), which came into force in March 2021 and applied to the proceedings.

The parties agreed that the Court should find the accused presently unfit to stand trial and that he may become fit within 12 months. Notwithstanding that agreement, the Court conducted the inquiry on the evidence before it and reached its own conclusions.

  • Whether the accused was presently unfit to stand trial within the meaning of s 36 of the Act
  • Whether, if found unfit, the accused may become fit to be tried within the next 12 months (s 47(1)(a)) or would not become fit within that period (s 47(1)(b))
  • Whether the matter should be referred to the Mental Health Review Tribunal (MHRT)

Decision

McNaughton J conducted the inquiry under s 44 of the Act, which requires a judge-alone determination conducted in a non-adversarial manner on the balance of probabilities, with no onus resting on any particular party. The fitness test in s 36 asks whether the accused, because of a mental health impairment, cognitive impairment, or for any other reason, cannot do one or more of the things listed in that section, including understanding the nature of the proceedings, following the course of the trial, understanding the substantial effect of evidence given against him, or instructing legal representatives. This test reflects the longstanding formulation in R v Presser (1958) VR 45, as confirmed by the High Court in Ngatayi v R (1980) 147 CLR 1.

The Court noted an unusual feature of the matter: the cause of the accused's presentation was unclear on the evidence before it. Despite expert evidence being tendered, the precise basis for the accused's incapacity could not be definitively identified. The Court nonetheless found that the evidence established, on the balance of probabilities, that the accused could not satisfy one or more of the criteria in s 36(1) and was therefore presently unfit to stand trial.

On the second question, the Court drew on the reasoning in R v Risi [2021] NSWSC 769, which held that a finding under s 47(1)(b) (that the accused will not become fit within 12 months) should only be made where there is real certainty about ongoing unfitness, because such a finding excludes MHRT involvement. Given the uncertainty surrounding the cause of the accused's presentation, the Court was not satisfied that he would not become fit within 12 months. The Court was satisfied, on the balance of probabilities, that he may become fit within that period, attracting the referral mechanism under s 49(1).

Orders Made

  • The accused was found unfit to be tried on the offences the subject of the indictment.
  • Pursuant to s 47(1)(a) of the Act, the Court found on the balance of probabilities that the accused may become fit to be tried within 12 months from the date of the decision.
  • Pursuant to s 47(2)(d) of the Act, the accused was remanded in custody.
  • Pursuant to s 49(1) of the Act, the accused was referred to the Mental Health Review Tribunal for review.
  • The Registrar was directed to provide copies of the exhibits and the judgment to the MHRT as soon as practicable.

Key Takeaways

  • Under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), an accused is unfit to stand trial if, for any reason including a mental health or cognitive impairment, they cannot satisfy one or more of the specified capacities; the criteria are not exhaustive and are to be applied in a reasonable and commonsense fashion.
  • A finding that an accused will not become fit within 12 months under s 47(1)(b) requires real certainty about ongoing incapacity, because such a finding excludes the MHRT from the review process; where the cause of unfitness is unclear, that threshold is not met.
  • Agreement between the parties on the fitness question does not relieve the court of conducting its own inquiry and reaching conclusions independently on the evidence.
  • The fitness inquiry under Part 4 of the Act is conducted by a judge alone, is non-adversarial in nature, and proceeds on the balance of probabilities with no onus on either party.
  • Where an accused may become fit within 12 months, referral to the Mental Health Review Tribunal under s 49(1) is mandatory.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Pt 4, ss 4, 5, 36, 37, 38, 40, 42, 44, 47, 49
- Crimes Act 1900 (NSW), ss 59, 114

Cases
- R v Presser (1958) VR 45
- Ngatayi v R (1980) 147 CLR 1; [1980] HCA 18
- R v Risi [2021] NSWSC 769