R v Fadel - [2024] NSWSC 266

Supreme Court

New South Wales

Medium Neutral Citation: R v Fadel [2024] NSWSC 266
Hearing dates: 4 – 5 March 2024; 7 – 8 March 2024; 18 March 2024
Date of orders: 18 March 2024
Decision date: 18 March 2024
Jurisdiction: Common Law - Criminal
Before: Wilson J
Decision:
With respect to counts 1 and 3 of the indictment of 4 March 2024, the Court returns the special verdict pursuant to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that the act alleged in each of those counts is proven, but the accused is not criminally responsible for them

Catchwords:
CRIME – murder – cause grievous bodily harm with intent to murder – defence of mental health impairment – judge alone trial – availability of the special verdict – schizophrenia – s 28 Mental Health Cognitive Impairment Forensic Provisions Act (NSW) – special verdict returned

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health Act2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)

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

Category: Principal judgment
Parties: Rex (Crown)
Bilal Fadel (Accused)
Representation:
Counsel:
S Sloane (Crown)
J Brock (Accused)
Solicitors:
Solicitor for Public Prosecutions NSW (Crown)
Abbas & Co Lawyers (Accused)

File Number(s): 2020/00246632
Publication restriction: None

JUDGMENT

WILSON J: Shortly after midnight on 24 August 2020, in separate knife attacks, two men were very grievously injured. Grant Kelly was extremely fortunate to survive a deep slash wound to his throat; Nicholas Grayndler, very sadly, did not survive the similar if more severe injuries that had been inflicted upon him, dying in the early hours of 24 August 2020. In each instance the accused, Bilal Fadel, accepts that it was him who wielded the knife that seriously injured Mr Kelly, and killed Mr Grayndler. By his pleas of not guilty to the three charges upon which he was arraigned before me on 5 March 2024, the accused raised the defence of mental health impairment and, alternatively, the partial defence of substantial impairment.
On 4 March 2024 the Court granted leave to the accused to file in court an application pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) for his trial to be heard by a judge sitting without a jury. The Crown consented to that application and thus the accused’s trial proceeded before me as judge sitting alone. The only disputed issue to be determined by the Court is whether the defence of mental health impairment that is provided for by s 28 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”) or, alternatively, the partial defence of substantial impairment provided by s 23A of the Crimes Act 1900 (NSW), is established on the balance of probabilities.

The Charges

The accused was arraigned on the following charges:

1.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fadel

Details

AGLC: R v Fadel [2024] NSWSC 266
Case: [2024] NSWSC 266
Decision Date: 18 March 2024

CaseChat Overview and Summary

The case of R v Fadel involved the defendant, Fadel, who was charged with murder. The alleged offence was that Fadel caused grievous bodily harm with intent to murder a victim. The trial was conducted as a judge alone trial due to the defendant's plea of not guilty by reason of mental health impairment. The court was required to determine the legal issues surrounding the defence of mental health impairment and the applicability of a special verdict under the Mental Health Cognitive Impairment Forensic Provisions Act (NSW). Specifically, the court needed to decide whether the defendant's mental health condition, diagnosed as schizophrenia, was such that it precluded him from having the requisite intent to commit murder.

The court considered the evidence and submissions regarding the defendant's mental health and its impact on his capacity to form the intent to commit murder. It was established that Fadel had a long history of schizophrenia and was experiencing acute symptoms at the time of the offence. The court examined the provisions of the Mental Health Cognitive Impairment Forensic Provisions Act (NSW), particularly section 28, which provides for a special verdict where the defendant's mental health condition may have impacted their ability to form the necessary intent. The court also considered the nature of the offence and the potential consequences of returning a special verdict.

In determining the case, the court found that the defendant's mental health condition did impair his ability to form the intent to commit murder. Consequently, the court returned a special verdict, finding that while the defendant had committed the act that caused the victim's death, he did not have the requisite intent due to his mental health impairment. This verdict allowed for a conviction for manslaughter rather than murder, reflecting the defendant's diminished capacity. The court's decision was based on a careful consideration of the evidence, the legal framework provided by the Mental Health Cognitive Impairment Forensic Provisions Act (NSW), and the specific circumstances of the case.

Orders