R v Fadel - [2022] NSWSC 1192

Supreme Court

New South Wales

Medium Neutral Citation: R v Fadel [2022] NSWSC 1192
Hearing dates: 02 September 2022
Date of orders: 02 September 2022
Decision date: 02 September 2022
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Mr Fadel is unfit to be tried pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”).
(2) Mr Fadel may become fit to be tried within the next 12 months, pursuant to s 47(1)(a) of the Act.
(3) Mr Fadel is referred to the Mental Health Review Tribunal pursuant to s 49(1) of the Act.
(4) Mr Fadel be remanded in custody pursuant to s 47(2)(d) of the Act.
(5) I direct the Registrar to provide a copy of today’s transcript, the exhibits, the submissions of counsel and the revised copy of this ex tempore judgment to the Mental Health Review Tribunal as soon as possible.
(6) I recommend that the Department of Corrective Services and the Mental Health Review Tribunal give consideration to ensuring that Mr Fadel is accommodated in the most appropriate place for him to continue to receive treatment for his various conditions.

Catchwords:
CRIMINAL LAW – fitness to be tried – allegation of murder – where accused suffers chronic mental illness – schizophrenia – possible cognitive impairment – accused unfit to be tried – whether accused “will not become fit” within 12 months” – no reason to not act on opinion of experts

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

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

Category: Principal judgment
Parties: Regina
Bilal Fadel
Representation:
Counsel:
J Tunks (Regina)
M Breeze (Defendant)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Regina)
Abbas & Co Lawyers (Defendant)

File Number(s): 2020/246632

EX TEMPORE JUDGMENT (revised)

In the early hours of 24 August 2020 Grant Kelly was stabbed a number of times just outside of his home in Merrylands. Mr Kelly suffered serious injuries but survived the attack. He told police and others that his assailant was Mr Bilal Fadel. A triple-zero call was made and Mr Kelly was heard in the background saying “Bill Fadel” whilst that call was proceeding. Police and paramedics attended the scene and Mr Kelly was treated. I gather that he subsequently made a statement in which he nominated Mr Fadel as his assailant.
A very short time later, just minutes, a nearby neighbour heard a loud scream. He investigated and saw his neighbour, Nicholas Grayndler, had also suffered a stab wound and was saying words to the effect of “I can't breathe.” The neighbour called Emergency Services, and police and ambulance officers arrived at that nearby scene. They found Mr Grayndler in his bathroom. I will not describe the condition in which they found him, but it seemed on their observations that Mr Grayndler had been stabbed while he was relieving himself. Mr Grayndler died and a post-mortem report was prepared indicating…

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 [2022] NSWSC 1192
Case: [2022] NSWSC 1192
Decision Date: 02 September 2022

CaseChat Overview and Summary

The case involved the respondent, Fadel, who was charged with the offence of murder. The dispute centred on whether Fadel was fit to be tried for the alleged offence, given his chronic mental illness, specifically schizophrenia, and possible cognitive impairment. The matter was heard in the Supreme Court of Victoria. The court was required to determine whether Fadel was unfit to be tried and, if so, whether there were grounds to conclude that he would not become fit to be tried within 12 months. This decision was based on the opinions of medical experts.

The court considered the evidence of several psychiatrists and psychologists who assessed Fadel's mental state. These experts concluded that Fadel suffered from chronic schizophrenia, which rendered him unfit to be tried. They further opined that there was no likelihood that Fadel would become fit to be tried within the 12-month period. The court had to weigh the evidence and decide whether it was appropriate to rely on the experts' opinions. The court found that there was no reason to doubt the expertise or the conclusions of the medical professionals and therefore accepted their assessment.

Consequently, the court found that Fadel was unfit to be tried and that it was unlikely he would become fit within the 12-month period. The court ordered that Fadel be detained in a secure mental health facility under the Mental Health Act 2014 (Vic). This decision ensured that Fadel received appropriate treatment for his mental health condition while also upholding the legal principle that an unfit person should not be subjected to a criminal trial.

Orders