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Supreme Court 19 November 2024

R v Al-Qas Soomo

[2024] NSWSC 1461

Assault & violenceHomicideDomestic & family violence
MENTAL HEALTH CRIMINAL PROCEEDINGS PERSON UNFIT TO BE TRIED SPECIAL HEARING DOMESTIC VIOLENCE MURDER

Citation: R v Al-Qas Soomo [2024] NSWSC 1461
Court: Supreme Court of New South Wales
Date: 19 November 2024
Judge: Campbell J

Background

The defendant was charged on a four-count indictment arising from two separate incidents in November 2020 at Fairfield. The first three counts concerned events on 21 November 2020, when the defendant armed himself with a knife to intimidate his wife and then assaulted each of his two daughters when they intervened. The fourth count charged him with the murder of his wife on 30 November 2020.

The defendant had previously been found unfit to be tried by McNaughton J, and the Mental Health Review Tribunal had continued to certify his unfitness on review, most recently on 9 August 2024. Because the Director of Public Prosecutions had not advised that no further proceedings would be taken, the court was required to conduct a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

A special hearing is not a standard criminal trial. Its purpose is to ensure the defendant is acquitted unless it can be proved to the criminal standard that, on the limited evidence available, the defendant committed the offence charged or an available alternative offence. The defendant, represented by counsel, pleaded not guilty to all counts and raised the mental health impairment defence in relation to all four counts, and the partial defence of substantial impairment by mental health impairment (reducing murder to manslaughter) as an alternative on the murder count.

  • Whether the defendant's condition satisfied the mental health impairment defence under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), specifically whether his mental health impairment was such that he did not know that his acts were wrong, for each of the four counts
  • Whether, if the full mental health impairment defence was not established for the murder count, the partial defence of substantial impairment by mental health impairment under s 23A of the Crimes Act 1900 (NSW) was made out, so as to reduce murder to manslaughter
  • What verdicts were available under s 59 of the Act in light of the findings on those defences

Decision

Campbell J found that the physical elements of all four offences were not genuinely in dispute. The central question was whether the mental health impairment defence or the partial defence applied. Expert forensic psychiatric evidence was critical to this analysis, and the hearing proceeded largely on the basis of a court book tendered by consent, supplemented by concurrent expert evidence from two psychiatrists.

On Counts 1 to 3 (intimidation and the two assaults), the court found that the mental health impairment defence was not made out. Although the defendant suffered from a relevant mental health impairment characterised by obsessive and delusional jealousy, the evidence did not establish that this condition was such that he did not know those acts were wrong at the time he committed them.

On Count 4 (murder), the court also rejected the full mental health impairment defence. However, Campbell J accepted the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW). The judge was satisfied, on the balance of probabilities, that the defendant's long history of obsessive and delusional jealousy, its intensity, and its intractable nature substantially impaired his mental capacity to a degree that justified reducing his criminal responsibility from murder to manslaughter. Campbell J noted that this assessment required a value judgment informed by community standards and the normative values underpinning criminal law, rather than a purely clinical determination by psychiatrists.

The verdicts returned were therefore that, on the limited evidence available, the defendant committed each of the three offences charged in Counts 1 to 3, and committed manslaughter as an alternative to the murder charged in Count 4. The matter was listed for proceedings to fix a limiting term in March 2025.

Orders Made

  • On the limited evidence available, the defendant committed the offence of intimidation charged by Count 1.
  • On the limited evidence available, the defendant committed the offence of assault occasioning actual bodily harm against the first daughter (Count 2).
  • On the limited evidence available, the defendant committed the offence of assault occasioning actual bodily harm against the second daughter (Count 3).
  • On the limited evidence available, the defendant committed manslaughter as an alternative to the murder charged in Count 4.
  • The Registrar directed to forward published reasons, the psychiatric evidence, and the transcript of concurrent expert evidence to the Mental Health Review Tribunal.
  • Matter listed before Campbell J at 2:00 p.m. on Friday 7 March 2025 for proceedings on fixing the limiting term.

Key Takeaways

  • A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is not designed to result in a conviction in the ordinary sense; it exists to protect an unfit defendant from being found to have committed an offence unless the criminal standard of proof is met on the limited evidence available, and the verdicts available differ from those at an ordinary trial.
  • The mental health impairment defence under s 28 of the Act requires more than proof of a serious mental health condition; it requires the condition to have been such that the defendant did not know the act was wrong, a threshold the court found was not met for any of the four counts in this case.
  • Under s 23A of the Crimes Act 1900 (NSW), the partial defence of substantial impairment by mental health impairment operates on a balance of probabilities standard and, if established, reduces murder to manslaughter rather than producing an acquittal.
  • In applying the substantial impairment partial defence, Campbell J confirmed that the second element, whether the impairment is substantial enough to warrant reducing criminal responsibility, requires a normative value judgment by the court rather than a purely medical assessment, even where expert psychiatric evidence is central to the inquiry.
  • Delusional jealousy, where it is of sufficient intensity, duration, and intractability, may satisfy the substantial impairment partial defence even where it does not meet the higher threshold required for the complete mental health impairment defence.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 33, 36, 40, 46, 49, 53, 54, 55, 56, 59, 63, 78, 80
- Crimes Act 1900 (NSW), ss 18, 23A, 59
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Cases:
- R v M'Naghten (1843) 8 ER 718
- The King v Porter (1933) 55 CLR 182
- Stapleton v R (1952) 86 CLR 358
- Alford v Magee (1952) 85 CLR 437
- Hawkins v The Queen (1994) 179 CLR 500
- Stanton v the Queen [2003] HCA 29
- R v Minani (2005) 63 NSWLR 490
- R v Pratt [2009] NSWSC 1108
- R v Rodrigues [2010] NSWSC 198
- Carter v R [2019] NSWCCA 11
- R v Hadfield (1800) 27 State Trials 1281
- R v Codere [1916] 12 CR App R 21