R v Fazah

[2012] NSWSC 1243

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fazah [2012] NSWSC 1243
Hearing dates:	15 - 16 October 2012
Decision date:	16 October 2012
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Accused unfit to be tried. Matter referred to the Mental Health Review Tribunal. Accused remanded in custody.
Catchwords:	CRIMINAL LAW - murder - fitness hearing - unfit to be tried
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Category:	Principal judgment
Parties:	Regina Farden Fazah
Representation:	Counsel: Mr L Lungo (Crown) Mr P Wynch (Accused) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW
File Number(s):	2011/9681

Judgment

1. HIS HONOUR: The accused, Mr Farden Fazah, was arrested on 1 January 2011 and has remained in custody since. He has been committed to stand trial in this Court on an indictment alleging that he murdered his child and wounded his wife with intent to murder her. There is an alternative count that he wounded his wife with intent to cause her grievous bodily harm.

1. There is a question as to Mr Fazah's fitness to be tried. That is an issue which is to be determined on the balance of probabilities by the application of the well-known Presser criteria.

1. Yesterday and today I have heard and received evidence and submissions concerning this question.

1. The Crown relies upon the evidence of Dr Rosalie Wilcox. She has prepared two reports, dated 16 April 2012 and 1 October 2012. Annexed to those reports are extensive collections of documents. I would not do justice to Dr Wilcox if I were to attempt to summarise those reports; they need to be read in full to appreciate the foundation for her ultimate opinion which is that Mr Fazah is fit to be tried.

1. A critical aspect of Dr Wilcox' consideration of the issue is the question of whether Mr Fazah is malingering. Broadly speaking, she has concluded that he is feigning a lack of memory and also feigning mental illness.

1. Dr Wilcox was cross-examined yesterday by Mr Winch, counsel for Mr Fazah. He took her to a number of individual matters which, cumulatively have led Dr Wilcox to her ultimate conclusion. In respect of a number of those matters, Mr Winch successfully obtained concessions that there was an alternative view that could be taken, or that when seen in the context of other material that Dr Wilcox had not originally taken into account, the matter did not carry the weight that she had at first considered.

1. I will cite one example of this. Within the documents Dr Wilcox reviewed there is a transcript of covertly recorded conversations Mr Fazah had with members of his family on the evening of 7 January 2011 (tab 5 in Exhibit A). They included a male person saying to him "You don't remember your state of mind" and "you don't know what happened, right".

1. Dr Wilcox considered that "it is not uncommon due to the level of arousal or due to dissociation at the time of an offence for someone to later have difficulty recalling aspects of the offence". But she noted that "the period of memory loss is usually quite discrete and there is a clear recollection of preceding events and subsequent events". Mr Fazah, however, has claimed a far more extensive lack of memory. It was Dr Wilcox' view that his reported memory loss does not conform to any known condition. She did not believe that it was indicative of dissociation. She thought the "most obvious reason is that his family told him to act as if he had no recollection of the event".

1. Mr Winch took Dr Wilcox to the statement of Detective Senior Constable Aaron Turner of 25 January 2011 (tab 3 in Exhibit A). It records an interview with Mr Fazah on 7 January 2011 from 6.01pm to 6.50pm. It occurred in a hospital setting. Mr Fazah had been held in police custody in a hospital since his arrest due to him having suffered what are alleged to have been self-inflicted stab wounds. He responded to many questions by saying he either did not understand or he could not recall. On a number of occasions he asked to see his family. Further, on a number of occasions he mumbled things that the officer could not understand. On one occasion he touched his forehead and said, "In here something wrong".

1. The covertly recorded conversation with family members, one of the matters relied upon by Dr Wilcox as supporting her opinion, occurred subsequent to this police interview. When this was drawn to her attention, she offered that because Mr Fazah had been in hospital since his arrest there had been plenty of time for him to have been visited by his family prior to 7 January; implicitly suggesting that the advice to feign a lack of memory had been given prior to the police interview. However, Mr Winch then drew attention to a portion of the interview (p. 17 of Detective Turner's statement) where it is recorded that the detective indicated that Mr Fazah had not been visited by any family since his arrest.

1. Clearly, the lack of memory claimed by Mr Fazah did not originate with a suggestion from his family. That is not to say that it is genuine, or otherwise. It simply serves as an example of a number of matters relied upon by Dr Wilcox that, when more closely examined, do not support at all, or do not support as much, her ultimate conclusion.

1. This is not to say that I do not accept Dr Wilcox' opinion that the accused is malingering. My view is that he probably is. The extent to which that is so is not possible to be precise about. However, it does not necessarily follow that he is in fact fit to be tried.

1. Dr Wilcox relied upon evidence concerning the accused's life prior to coming into custody. This included matters such as the fact that he had partially completed a university course in Kabul before he came to Australia. In Australia he had employment as a security guard. In the latter context there was evidence that his command of English was far better than he has made out since coming into custody. Generally, the evidence was inconsistent with him having any previous mental health issues aside from some rather difficult to understand evidence concerning an event which occurred in Afghanistan when he was 14 years of age.

1. At the conclusion of her second report, Dr Wilcox said:

He is an intelligent man and I believe that he has the capacity to not only feign memory impairment but to also fabricate mental illness to avoid taking responsibility for his actions. Therefore based on these conclusions it is my opinion that on the balance of probabilities he is fit to be tried and fulfils the criteria for fitness as specified in R v Presser (1958) as detailed below:

• I believe he understands that he is charged with the murder of his daughter (Maria Fazah) and the stabbing of his wife, Rasa Fazah, with the intent to murder her;
• I believe he is able to plead to the charge and to exercise his rights of challenge;
• There is no indication that he does not understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he is charge with;
• I believe he is able to follow the course of the proceedings so as to understand what is going on in court in a general sense;
• There is no indication that he is unable to understand the substantial effect of any evidence that may be given against him;
• I believe that he is able to give any necessary instructions to his counsel and to let his counsel know what his version of the facts is and, if necessary tell the court what it is;
• I believe he has sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and counsel.

1. At the conclusion of her evidence I asked her:

Q. Doctor, can I ask you something about your ultimate opinion. Which of these two would best reflect what your opinion is: I'm not satisfied that he is unfit to be tried, therefore he is fit to be tried; or, I'm not satisfied that he is unfit to be tried, therefore, based upon the objective evidence as to what he was like and how he was able to function in the community before going into custody, he should have the mental capacity to be fit to be tried?

A. I suppose the second one.

Q. So it's not a case so much of you being affirmatively satisfied he is fit, but you are affirmatively satisfied that he should be fit?

A. Yes, yes. (15.10.12 at T31)

1. The defence relied upon the evidence of Dr Olav Nielssen and Dr Katie Seidler. Reports by Dr Nielssen of 29 November 2011 and 11 October 2012 (Exhibits 1 and 2) and reports by Dr Seidler of 20 August and 17 September 2012 (Exhibits 3 and 4) were tendered. In addition, there was an affidavit by the accused's solicitor, Ms Amanda Coultas-Roberts (Exhibit 5).

1. A very useful comparison of the opinions of the three doctors prepared by the Crown Prosecutor was also tendered (Exhibit C).

1. Ms Coultas-Roberts' affidavit sets out the difficulties she has experienced in explaining the legal process to Mr Fazah since the time she commenced to act for him in February 2011. She has experienced significant difficulties in obtaining instructions from him. He seems to be preoccupied in obtaining treatment for his mental health condition; certainly more so than he is interested in assisting Ms Coultas-Roberts to act for him in relation to the charges.

1. Dr Nielssen's second report includes his consideration of the opinion of Dr Wilcox (her first report). He accepts that "it ... seems likely that Mr Fazah is exaggerating his intellectual impairment and mental illness". However, Dr Nielssen remains of the view that a provisional diagnosis was one of probable schizophrenic illness. He remains of the view that Mr Fazah is unfit to be tried "as he was again unable to demonstrate that he understood the general nature of the proceedings, how a trial was conducted, that he could follow the proceedings in a general sense, or that he could provide coherent instructions".

1. I note that Dr Nielssen, like Dr Wilcox, took into account the circumstances of the accused's life prior to when he came into custody.

1. Dr Seidler's second report includes her consideration of the first reports by Drs Wilcox and Nielssen. In her first report she opined that Mr Fazah was "impaired and disordered and in [her] opinion, unfit for the Court process". After considering the reports of Drs Wilcox and Nielssen she remained of that view. She allowed for the possibility that Mr Fazah was "feigning or exaggerating his illness/condition". She did not, however, believe that his presentation was "completely malingered". She concluded her second report with the following explanation for that opinion:

"That is, there is a history in Afghanistan of psychological, behavioural and/or cognitive concerns for Mr. Fazah. He was then subject to extreme deprivation and torture whilst imprisoned by the Taliban and this, no doubt, further compromised Mr. Fazah's functioning, leaving him a vulnerable and disordered individual. He coped poorly in transitioning to life in this country and was clearly very reliant on his family. I accept that Mr. Fazah was violent, aggressive and abusive towards his wife and like Dr. Wilcox, understand the alleged offences within the context of this. However, I believe that even so, Mr. Fazah was traumatised by the death of his daughter and attempted murder of his wife, which has had a devastating impact on his functioning and to some extent, explains his presentation since that time. However, given Mr. Fazah's reliance on his family and relative naivety about life in this country, I also accept that it is likely that he has taken the instruction of his family on board and has, to some extent, exaggerated his condition. Therefore, the answer to this case is seemingly a complex one that reflects both genuine and severe illness and functional disturbance on the basis of a history of probable genetic disorder/vulnerability coupled with unsophisticated exaggeration as a function of naïve reliance on family members that has resulted in Mr. Fazah taking on board their instruction to act as if he does not remember what occurred on the occasion of the alleged offences. Nonetheless, I do believe that Mr. Fazah is a disturbed, dysfunctional and disordered individual, who copes poorly on a daily basis, is highly traumatised and naïve to the ways of society here that would enable him to participate meaningfully in his defence rendering him unfit".

1. I have found this a rather difficult matter. In the end, I consider that it is of some significance that Dr Wilcox was unable to affirmatively establish that the accused is fit to be tried. Her opinion is really to the effect that she was not satisfied that he was unfit, and therefore he should be fit. Drs Nielssen and Seidler have taken into account that there is an element of malingering involved in the accused's presentation. Nevertheless, their evidence supports a conclusion of unfitness.

1. I am satisfied on the balance of probabilities that the accused is unfit to be tried.

1. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 (the Act), I refer this matter to the Mental Health Review Tribunal.

1. The accused is remanded in custody until the determination of the Mental Health Review Tribunal under s 16 of the Act be given effect to.

1. I direct the court registry to provide the following documentation to the Tribunal within 14 days:

• a copy of this judgment
• a transcript of these proceedings
• a copy of all of the exhibits in these proceedings

**********

Decision last updated: 16 October 2012