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Supreme Court 18 March 2024

R v Fadel

[2024] NSWSC 266

Assault & violenceHomicide
CRIME MURDER DEFENCE OF MENTAL HEALTH IMPAIRMENT JUDGE ALONE TRIAL AVAILABILITY OF THE SPECIAL VERDICT SCHIZOPHRENIA

Citation: R v Fadel [2024] NSWSC 266
Court: Supreme Court of New South Wales
Date: 18 March 2024
Judge: Wilson J

Background

Shortly after midnight on 24 August 2020, the accused carried out two separate knife attacks in the Merrylands area of western Sydney. One victim, who had been a close friend of the accused for around eight years, survived a deep slash wound to the throat. The second victim, who had also socialised with the accused, died from his injuries in the early hours of the same morning.

The accused did not dispute that he had wielded the knife in each attack. His pleas of not guilty raised the defence of mental health impairment under the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act), and alternatively the partial defence of substantial impairment by abnormality of mind under the Crimes Act 1900 (NSW).

The accused applied to have the trial heard by a judge sitting alone, without a jury. The Crown consented, and the matter proceeded before Wilson J as a judge-alone trial. The sole contested issue was whether the mental health impairment defence, or the substantial impairment partial defence, was established on the balance of probabilities.

  • Whether the MHCIFP Act 2020 or the earlier Mental Health (Forensic Provisions) Act 1990 (NSW) applied, given the offences pre-dated the new Act's commencement
  • Whether the accused satisfied the definition of "mental health impairment" under s 4 of the MHCIFP Act at the time of the acts
  • Whether the mental health impairment had the effect, under s 28(1), that the accused either did not know the nature and quality of his acts, or did not know that his acts were wrong
  • Whether, if the primary defence was not made out, the partial defence of substantial impairment under s 23A of the Crimes Act was available

Decision

Wilson J first resolved the applicable legislation. The offences occurred before the MHCIFP Act commenced on 27 March 2021, but the trial proceedings were initiated after that date. Following the approach in R v Tonga [2021] NSWSC 1064 and R v Risi [2022] NSWSC 862, the Court took a narrow view of "proceedings," holding that the relevant proceedings commenced when the indictment was presented. The MHCIFP Act therefore applied.

The Court considered extensive evidence, including psychiatric opinion, about the accused's mental state at the time of the attacks. The accused had a documented history of schizophrenia. In the days preceding the attacks, he had sent text messages to a friend that were, even to a lay reader, suggestive of active psychotic symptoms, including references to "monsters" and perceived threats from those around him. Psychiatric evidence supported the conclusion that the accused was in the grip of a psychotic episode at the time of the offences.

Wilson J was satisfied on the balance of probabilities that the accused had a mental health impairment within the meaning of s 4 of the MHCIFP Act, arising from a psychotic disorder, and that this impairment meant he did not know that his acts were wrong. The test for "not knowing an act is wrong," drawn from Dixon J's reasoning in The King v Porter (1933) 55 CLR 182, requires that the person could not reason with a moderate degree of sense and composure about whether the act was wrong by everyday standards. The Court was satisfied that threshold was met. Given that finding, it was unnecessary to consider the partial defence of substantial impairment.

Orders Made

  • A special verdict of "act proven but not criminally responsible" was entered on Count 1 (causing grievous bodily harm to the first victim with intent to murder) and Count 3 (murder of the second victim), pursuant to s 28 of the MHCIFP Act.

Key Takeaways

  • The Supreme Court confirmed, consistently with R v Tonga and R v Risi, that "proceedings" for the purpose of the MHCIFP Act's transitional provisions refers to the hearing commenced upon presentation of the indictment, not the date of the alleged offence.
  • Under s 28 of the MHCIFP Act, an accused bears the onus of proving mental health impairment on the balance of probabilities, and must establish that the impairment meant they either did not know the nature and quality of the act, or could not reason with moderate sense and composure about whether the act was wrong.
  • The "not knowing an act is wrong" limb in s 28(1)(b) retains the formulation from The King v Porter (1933) 55 CLR 182: the accused must have been unable to reason about the wrongness of the act with a moderate degree of sense and composure by reference to the standards of reasonable people.
  • A special verdict of "act proven but not criminally responsible" is available in a judge-alone trial where the defence of mental health impairment is made out, producing the same outcome as it would before a jury.
  • Evidence of pre-offence communications showing active psychotic symptoms formed part of the factual basis on which the court was satisfied that a mental health impairment existed at the time of the offending.

Legislation and Cases Referenced

Legislation
- Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28
- Crimes Act 1900 (NSW), ss 18(1)(a), 23A, 27, 33(1)(a)
- Criminal Procedure Act 1986 (NSW), s 132
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Mental Health Act 2007 (NSW)

Cases
- The King v Porter (1933) 55 CLR 182
- R v Tonga [2021] NSWSC 1064
- R v Risi [2022] NSWSC 862