R v Al-Qas Soomo

Supreme Court of NSW|2024-11-13|Before: Campbell J, McNaughton J

Solicitors: Solicitor for Public Prosecutions (Crown) SANS Law (Defendant) File Number(s): 2020/339992; 2021/5289

JUDGMENT

After conducting an inquiry under s 40(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the "Act") into whether the defendant, Alam Al-Qas Soomo, was unfit to be tried for the offences pleaded in the indictment, McNaughton J, under s 46 of the Act, found that on the balance of probabilities the defendant was unfit to be tried because of his presentation he cannot participate in a number of the matters necessary for a defendant to capably defend himself as specified in s 36(1). McNaughton J found that the defendant may become fit to be tried for the offences during the period of 12 months following her determination and under s 49(1) referred the defendant to the Mental Health Review Tribunal ("MHRT") for review from time to time under ss 78 and 80. On review the MHRT has continued to certify the defendant as unfit to be tried. The last such determination was made on 9 August 2024. Unless otherwise specified, all references to legislative provisions in this judgment are references to the Act.

Special Hearing

As the Director of Public Prosecutions has not advised that no further proceedings will be taken against the defendant, it is incumbent upon the Court to hold a special hearing under s 55 (see s 53(2)). A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the defendant to be tried in accordance with normal trial procedures, that the defendant is acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged (s 54). The four charges on the indictment are in substance: Count 1: On 21 November 2020 at Fairfield in the State of New South Wales the defendant was armed with a weapon, namely a knife, with intent to commit an indictable offence, namely, intimidation; Count 2: On 21 November 2020, the defendant at Fairfield in the State of New South Wales assaulted Soneevia Al-Qas Soomo thereby occasioning actually bodily harm; Count 3: On or about 21 November 2020, at Fairfield in the State of New South Wales, the defendant assaulted Sonia AI-Qas Soomo thereby occasioning actual bodily harm; Count 4: On 30 November 2020, at Fairfield in the State of New South Wales, the defendant did murder Samar Shlemoon. Soneevia Al-Qas Soomo and Sonia Al-Qas Soomo are the defendant's daughters. Samar Shlemoon was the defendant's wife. For clarity, and without meaning any disrespect, I will refer to the defendant's daughters as Soneevia and Sonia as appropriate for the purpose of this judgment. Where mention is made of the defendant's son, I will refer to him as Yousuf. Count 4 is brought in the Supreme Court as of right; Counts 1 to 3 are brought in this Court with the permission of the Chief Justice.
The special hearing is being held in conformity with s 55. The procedures for a special hearing are described by s 56. The special hearing is to be conducted as nearly as possible as if it were a trial of the criminal proceedings, although the Court has power to modify the processes or procedures to facilitate effective participation by the defendant in the special hearing. It is necessary for the defendant to be legally represented as the defendant is by Mr Corish of counsel. The defendant's unfitness is presumed not to be an impediment to his representation. As I have said, the defendant is taken to have pleaded not guilty to each of the offences charged. The defendant has available to him, and may raise, any defence that could properly be raised if the special hearing was an ordinary trial of criminal proceedings. In that regard I am informed by Mr Corish that the defendant raises and relies upon the mental health impairment defence of not criminally responsible for each of the offences. The conditions of the defence are specified in s 28 of the Act. Moreover, in the alternative, the defendant raises to Count 4 the partial defence of substantial impairment due to mental health impairment available under s 23A Crimes Act 1900 (NSW). This is referred to as a partial defence because if successful, it reduces murder to manslaughter. It does not result in an acquittal. I will return to the elements of these defences later in these reasons.
The defendant is entitled to give evidence if he so chooses, bearing in mind, even an accused person fit to plead is not obliged to give evidence and is entitled to exercise the right to silence which all persons in the community enjoy (s 56(8)).
As neither party elected for trial by jury, the special hearing was held by me as a trial by judge alone (s 56(9)).
By s 59(1) of the Act, the verdicts available at the special hearing are not identical to those available to a jury at a trial of criminal proceedings. They are: 1. not guilty of the offence charged; 2. a special verdict of act proven, but not criminally responsible; 3. that on the limited evidence available, the defendant committed the offence charged; and 4. that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged. An example of s 59(1)(d), as with a trial of criminal proceedings, is a verdict that on the limited evidence available, the defendant committed the offence of manslaughter as an alternative to the charge in Count 4 of murder.
It is my obligation to include in my judgment the principles of law applied by me and the findings of fact on which I rely for the available verdict that I bring in for each count. After outlining in summary form the case brought by the Crown by Mr Hay, Crown Prosecutor, I will set out the general principles of law applicable; I will include the elements of each offence in the findings I make in relation to the respective count; and I will deal with the elements of each of the alternative defences when I consider the expert forensic psychiatric evidence, which is critical to the applicability of the mental health impairment defence and the substantial impairment partial defence to which I have already made reference in passing.

Outline of the Crown Case

As commonly occurs, the special hearing proceeded largely by way of the tender by consent of a detailed Court Book, which was admitted as Exhibit A. It was not necessary for every statement, report or other document contained in Exhibit A to be read in detail. This is because there was no real dispute that the defendant performed or undertook the physical element of each offence charged. The real issue is the availability of the defences, so far as they are applicable to each count. Expert psychiatric evidence was led in relation to the defences as I have said.
Moreover, there was a good deal of context evidence contained within Exhibit A about the nature of the relationship between the defendant and Ms Shlemoon. On the Crown case, the defendant was a controlling, physically abusive husband who had assaulted his wife prior to November 2020. I will return to these matters.

Count 1

At about 1 a.m. on 21 November 2020, Ms Shlemoon was asleep. The defendant woke her by flicking her leg with the flat edge of a knife. Once awake, Ms Shlemoon called out to her children and her daughters entered their parents' bedroom. Soneevia realised her father was intoxicated. When Soneevia entered the room, the defendant pretended he had the knife to cut up fruit. She noticed her mother was up and appeared terrified. When she challenged her father, he made an accusation of infidelity against his wife.
The Crown case is that the defendant had armed himself with the knife and used it as he did with the intent of intimidating his wife.

Count 2

Soneevia approached her father to push him away from her mother. As she did this, she ripped the defendant's shirt. He struck her three times to her face with his open hand causing her to fall to the ground. She felt immediate pain. The blows caused her to bleed from her mouth and suffer inflammation on the left side of her face. Teeth were loosened and she heard ringing in her ears.
During the assault on Soneevia, Ms Shlemoon was yelling at the defendant to desist. The defendant pushed her away and kicked her. This action is not the subject of a separate count.

Count 3

In an attempt to sober her father up, Sonia poured water over his head and pushed him to the corner of the room away from her mother and sister, again his clothing was accidentally ripped. The defendant pulled Sonia's right arm, twisted it, leaving bruises and scratches on her arm. It was painful to use her arm for a few days after the incident.

Count 4 - Murder

The Crown case is that after the events of 21 November 2020, Ms Shlemoon absented herself from the home when her children were out during the day to avoid her husband who was unemployed and at home. On Monday 30 November 2020, the deceased had risen to make lunch for her three children before they left for school. Soneevia and Sonia left at about 7:20 a.m. and Yousuf at about 8:15 a.m. The defendant was then asleep. On that day Ms Shlemoon remained at home.
It is the Crown case that when both were home at around 11 a.m., the defendant wrapped a braided rope around his wife's neck like a ligature and tightened it. He stabbed her three times in the chest and shoulder using a large wooden-handled knife.
In the immediate aftermath of killing his wife, the defendant made a number of admissions to neighbours and later to police. To one neighbour, a Mr Ammar Franci, he said "I killed my wife because of old problems".
After his arrest, while declining to be interviewed by police, the defendant volunteered, "I killed my wife". And later he said, "I admit … I am a killer". He also said, "My brain is not in my head now".
On postmortem examination, including by CT scan examination, the cause of death was determined to be three penetrating stab wounds to Ms Shlemoon's chest area resulting in massive blood loss. There were no ligature related injuries around or to the structure of the deceased's neck and strangulation was not a cause of death.

General Legal Principles

As I have stated it is my obligation to include in my judgment the principles of law and findings of fact I rely upon to reach my decision. I propose to identify some general principles of law at this stage, and I will refer in more detail to specific matters during my judgment at the appropriate time. I will mention only the essential authorities referred to when giving reasons orally. I bear in mind that I have the responsibility of identifying the real issues for decision. It is necessary for me to state only so much of the law relevant to those real issues: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 at 466.
It is important at this stage to remind myself that this is a special hearing. I have already set out above the purpose of a special hearing. But there are other aspects of the procedure of which I must remind myself. It is necessary that I keep in mind what the legislation describes as the "limited evidence available". The evidence is necessarily limited because of the defendant's unfitness to plead and the limitations upon his ability to participate in his own defence, unlike mentally fit people when charged with a serious criminal offence. These limitations include the considerations that the defendant may have been unable to give evidence notwithstanding his right to do so, or unable, by reason of his unfitness to give adequate instructions to his lawyers concerning the calling of witnesses who might assist his case, or as to matters upon which cross-examination could be based.
It is of the nature of a special hearing that my duty is confined to deciding on the limited evidence available whether the prosecution has proved beyond reasonable doubt that the defendant committed the offences charged. I remind myself that if I find the defendant not guilty of any offence charged or of any available alternative charge, he will be released from custody back into the community. Any further treatment he requires for any mental health impairment which I find him subject to will be given outside the criminal justice system.
On the other hand, if I find that the defendant committed any or all of the offences charged or another offence as an alternative, I must, in due course, indicate whether, had this been a normal trial of criminal proceedings, I would have imposed a sentence of imprisonment. And if so, I must nominate my best estimate of the sentence I would have considered appropriate. This is referred to as the "limiting term" and represents the maximum period during which the defendant may be held in custody for each offence charged (s 63).
Bearing in mind that the special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings, I remind myself of the fundamental principles. The starting point, and most fundamental rule as in any criminal trial, is that the defendant is presumed to be innocent. It is relevant to record given the mental health impairment issue, that he is also presumed to be sane. The presumption of innocence is rebutted if and only if the Crown proves the essential elements of each charge beyond reasonable doubt. It is for the defendant to rebut the presumption of sanity by establishing his mental illness defence on the balance of probabilities, a much less exacting standard of proof.
That the mental health impairment defence has been raised has important consequences in terms of the usual sequence of reasoning in criminal cases (if there is one: cf Stanton v the Queen [2003] HCA 29; 77 ALJR 1151). Usually, but not always, a logical approach to decision-making in a judge alone trial would suggest that the judge should consider the question of the physical elements of the relevant offence, including questions of causation such as those which arise in murder cases and then proceed to determine questions relevant to the mental element of the offence. However, following what the High Court of Australia said in Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 at 510, 512-514, and 517, no question of intent arises for determination if the defendant is not criminally responsible for his act by reason of mental health impairment: R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at 493 [32]. And this notwithstanding that there may be no necessary inconsistency between suffering a mental health impairment and forming a specific intent to do serious harm: Hawkins at 515.
Accordingly, the usual order to be followed is to consider whether the Crown have proved beyond reasonable doubt the physical element of each offence and then move directly to the question of whether the defendant has established the mental health impairment defence on the balance of probabilities. It is only if the answer to that second question is in the negative that it is necessary to consider the mental element of each offence and in the case of Count 4, the murder charge, the question of the defendant's actual specific intent which involves the question of whether the Crown has proved beyond reasonable doubt that at the time he stabbed his wife, the defendant had the actual specific intent of either killing her or causing her grievous bodily harm. The latter expression is usually rendered in modern times as really serious personal injury.
If I am against the defendant on the mental health impairment defence and move on to consider the question of intent then evidence in relation to the mental health impairment question may remain relevant because any such condition, even if not serious enough to establish the defence, may be relevant to his state of mind at the time he committed such of the physical elements of the charges as I find to have been established. In the case of the murder charge, the availability of the partial defence of substantial impairment by reason of mental health impairment will obviously turn on the same evidence as the mental health impairment defence. A lesser degree of mental health impairment will be sufficient for the partial defence than is necessary for the full defence. I reiterate that I will deal with the elements of each of these defences at the appropriate time in this judgment.
Clearly, to some extent the Crown case in relation to Count 4, the murder charge, relies upon circumstantial evidence because there were no eyewitnesses. I am, of course, entitled to take into account the admissions relied upon by the Crown made by the defendant if I am satisfied the evidence supports them. I remind myself that where a case substantially depends upon circumstantial evidence, it is important to appreciate that the prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion contended for by the Crown is the only rational inference that can be drawn from the whole of the circumstances actually established to my satisfaction by evidence I accept.
It is of critical importance when considering a circumstantial case that all of the circumstances established by the evidence are considered and weighed together, not individually or in a piecemeal fashion. This is because sometimes the probative value of a mass of evidence may be cumulative and it is pointless to consider, weigh and assess each individual piece of evidence in isolation. It is important to appreciate that putting such admissions as may have been made by the defendant to one side, intent is a matter which can only be proved by circumstantial evidence.

Decision on the Physical Element of the Various Counts

Context relationship and background evidence

When dealing with the facts, I propose to call the defendant, Mr Soomo. As I have made clear from the outset, the critical issue for my determination relates to whether Mr Soomo suffers from a mental health impairment, and if so, whether he has established the mental health impairment defence, or alternatively, in respect of Count 4, the substantial impairment partial defence. It remains necessary for me, however, to decide whether I am satisfied beyond reasonable doubt that on the limited evidence available, the Crown has established the physical element, or actus reus, of each of the counts charged.
Mainly because of the centrality of the mental health issues in the case, it is apposite for me to set out what would be regarded as contextual, relationship or background evidence about the nature of the relationship between Mr Soomo and his wife, Ms Shlemoon. That evidence mainly emanates from Mr Soomo's children who, as I have said, are Soneevia, Sonia and Yousuf.
The defendant is aged 64. He was 60 at the time of the events with which I am concerned in November 2020. Ms Shlemoon was then 42 years of age. Both Mr Soomo and Ms Shlemoon were born in Iraq and are of the Christian faith. They married in Iraq in about 1995. Soneevia was born in Iraq in about 1997 and Sonia in 1999. The family fled to Syria after the 2003 invasion of Iraq by the "Coalition of the Willing" and settled in Damascus, Syria. Yousuf was born there in 2003.
Mr Soomo's eldest sister, Tereza, her husband and family were able to flee Iraq in about 1993 and came to Australia in 1996 on a humanitarian visa. After settling in Australia, they made efforts to bring other relatives to Australia on family reunion visas. Initially these attempts were unsuccessful, but in 2019, Mr Soomo, Ms Shlemoon and their children were permitted to migrate to Australia. They arrived on 29 November 2019, one year and one day before the homicide. The family resided initially in migrant accommodation before settling in their own home at Fairfield.
I observe that there was a significant age gap between husband and wife. It is not in dispute that from early in their marriage the relationship was abusive. There is some evidence, albeit hearsay, that Mr Soomo was violent towards his wife from very early in their marriage. After their migration to Syria, they argued constantly, and Mr Soomo began accusing his wife of adultery. Mr Soomo was not assuaged by his wife's denials and the arguments escalated to physical violence. There is evidence, which I accept, that Ms Shlemoon was seen to have bruises on her face and cigarette burns on her arm from the violence of her husband. If the children attempted to intervene to protect their mother, Mr Soomo would turn on them, slapping them hard. On one occasion he punched his eldest daughter to forestall her intervention.
Mr Soomo was very controlling of his wife. I hesitate to use the adjective, coercive, given its present criminal connotation. However, because of his jealousy and mistrust of his wife, he would lock her in their home in Syria at least a few times a month, deny her funds to provide for the children and denigrate her and humiliate her in vile ways by putting out his cigarette on her head or tipping urine on her after she had showered. According to her daughters whose evidence I accept, Ms Shlemoon bore this humiliation with fortitude.
On occasions Mr Soomo would obtain a knife from the kitchen and threaten to kill his wife because of his deep-seated and ingrained suspicion of her infidelity. On a few occasions he held the knife against her. This egregious misconduct was, as it so often is in other cases, exacerbated by his abuse of alcohol. Mr Soomo drank large quantities of strong liquor on a daily basis. In Syria he preferred arak and after migrating to Australia, vodka.
Following a particular matter to which I will return directly, Mr Soomo said to one of his daughters, "I am going to drink alcohol, so when I kill her, they will arrest me, they will see that I am drunk, and was not thinking properly. So they won't send me to jail". On another occasion when drunk, Mr Soomo attacked his wife with an empty bottle. As he raised the bottle to strike Ms Shlemoon, his daughter, Sonia came between them to protect her mother and Mr Soomo struck her instead, breaking a tooth. He continued to attack his wife with the bottle and hit her over the head with it, causing a deep wound. He refused to let his children obtain medical help or convey their mother to hospital.
Initially after the family's migration to Australia, Mr Soomo's behaviour seemed to improve. Alas, this was not a marker of permanent change. He continued to denigrate their mother to his children accusing her of infidelity and saying, "your mother has the right to die".
I have already summarised the allegations forming the basis of Counts 1 to 3 concerning the incident of 21 November 2020, and I am satisfied beyond reasonable doubt that those allegations have been established by the evidence led in this case. During the course of those events, when his daughters tried to intervene he tried to justify himself by reference to his belief about his wife's infidelity. As I have said, in the period between 21 and 30 November 2020, Ms Shlemoon took to absenting herself from the home while her husband remained asleep in the morning until her children returned from school. I am satisfied that she took those steps because she was fearful for her own safety.
In about the middle of 2020, Mr Soomo reported symptoms of depression to his general practitioner. He was referred to Dr Karthik Modem, consultant psychiatrist, whom he consulted on one occasion only on 6 June 2020 by "tele-psychiatry" as it was the COVID-era of strict social distancing regulation. He gave Dr Modem a history of depressive symptoms, including insomnia, hopelessness and worthlessness. It is obvious he complained those symptoms were experienced in response to his belief about his wife's infidelity, which he believed had been occurring since the commencement of their marriage. He referred to a specific incident in Syria in 2017. This is the same incident which I have said I will deal with separately. He said he had proof of his wife's infidelity. It was his belief that his wife had had many affairs. He gave a history of two attempts of self-harm or suicide. The first in the context of the family's poverty and the second allegedly in relation to what he believed was Ms Shlemoon's proved infidelity. He gave a history of previous psychological counselling, which except for one particular psychologist, was not helpful. Dr Modem diagnosed a Major Depressive Disorder. She said he appeared to be totally consumed by his obsessive belief in Ms Shlemoon's infidelity, but Dr Modem did not then regard his symptoms as psychotic. However, she said this: "The on-going suspicions re. his wife would require collateral from family to consider/clarify the veracity of the allegations. The possibility of an underlying delusional disorder crops up if the family refute the claims. There are ongoing psycho-social stresses which complicate the presentation." Dr Modem recommended anti-depressant medication. She apparently discussed with the GP the need to obtain collateral confirmation or otherwise to clarify the diagnosis.
This body of context evidence which I accept is relevant because it may explain what happened on both 21 and 30 November 2020. Without it, it may seem implausible that a man, out of the blue, would turn on his wife and children to assault them on 21 November 2020 and then kill his wife on the 30th.

The specific 2017 matter in Syria

It is necessary to deal with the question of the specific matter which Mr Soomo relied upon to justify his fixed and unshakeable belief in his wife's infidelity which on the evidence came to his attention in Syria around 2017. The matter has some relevance because of the significant difference of opinion between the forensic psychiatrists, Dr Kerri Eagle, called on behalf of the defendant, and Dr Adam Martin, called on behalf of the Crown, as to whether Mr Soomo has a mental health impairment as defined by s 4 of the Act to support the mental health impairment defence or the alternative substantial impairment partial defence. I will deal with their evidence in a little more detail later in these reasons. Each expert prepared two reports that were introduced into evidence as part of Exhibit A and they gave concurrent oral evidence before me on the second day of the hearing. Dr Eagle's reports are dated 14 December 2021 (Tab 29) and 10 September 2024 (Tab 34). Dr Martin's reports are dated 9 May 2022 (Tab 30) and 9 October 2024 (Tab 35).
The difference of opinion between them is that Dr Eagle, while acknowledging the complexities of the particular case, formed the opinion that Mr Soomo suffers from a chronic psychotic illness, as I understood her evidence, probably a Psychotic Disorder, characterised by clinically significant delusions of his wife's infidelity.
Dr Martin's different view is that Mr Soomo's "erroneous jealous beliefs by themselves are not pathognomonic of a psychotic illness." Dr Martin accepts that "delusional jealousy … remains a possibility". However Dr Martin favours "the possibility of malingering or embellishment of psychosis" for the purpose of secondary gain, being the possibility of a more favourable outcome from the criminal justice system for the homicide of his wife.
Dr Martin's opinion is based on a number of different considerations. Only one of them is that during his consultation with Mr Soomo for the purpose of his second report, Mr Soomo refused to or avoided answering questions about his beliefs whether his wife had been unfaithful. A significant factor, however, was the consideration, referred to by Dr Modem, whether Mr Soomo's beliefs were well founded in fact. As a delusion is a false fixed belief from which the person cannot be shaken, a belief founded in fact is not delusional.
The evidence about this specific matter emanates from Soneevia and Sonia. Neither gave oral testimony, but their police statements were tendered.
In her statement, Soneevia referred to her father discovering "that [her] mother had been talking to men on face book". In Dr Martin's view the plural may have been significant. Later, however, she refers to "a male". And later again "this male". The male was in Iraq and Ms Shlemoon was in Syria. I would not regard the opportunity for sexual infidelity to be obvious. (My emphases.)
Sonia's account was that Mr Soomo was going through Ms Shlemoon's mobile phone messages and found a message from a male in Iraq. I accept that Mr Soomo showed Sonia the messages and in her opinion they were "romantic". Her father said, "I want to kill her. That's my honour. I want to get rid of the shame".
On Sonia's account her mother abjectly apologised, kneeling before Mr Soomo and kissing his feet. She begged for forgiveness and Mr Soomo swore on the Bible that he would not hit her again. On the evidence I accept, this was an oath he did not keep.
This account of a single incident involving one male, the infidelity being text or Facebook messages is broadly consistent with the history recorded by Dr Modem about the 2017 'proof' that Mr Soomo claimed to have.
In making a finding about this fact, I bear in mind that for religious people like Mr Soomo and Ms Shlemoon sexual infidelity is considered an egregious breach of faith between the parties to a marriage. For very many people of a more secular bent undoubtedly the belief is the same. For this reason, and given the consideration that because of the homicide of Ms Shlemoon she has no opportunity whatsoever to defend herself or even give her own explanation of the situation, I would be very slow to find or infer that Ms Shlemoon committed what she or Mr Soomo, according to the precepts of their faith, would regard as adultery. I am not satisfied that sexual infidelity has been proved.
However, I accept the evidence of Soneevia and Sonia that there was a connection between Ms Shlemoon and an unidentified male person purely by way of telecommunications which may have had a "romantic" flavour about it. I am not otherwise satisfied that the evidence establishes that Ms Shlemoon was sexually unfaithful to Mr Soomo, or that she was serially promiscuous as Mr Soomo's accounts suggest. I will return to this topic when dealing with the expert evidence below.

Count 1

I have summarised the Crown case in relation to Count 1 above (at [10]-[11]). The factual narrative is based upon the evidence of Soneevia and Sonia which I accept. I find on the limited evidence available that those facts have been proved beyond reasonable doubt.
Intimidation is a serious indictable offence contrary to the provisions of s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW), and is constituted by a person, inter alia, intimidating another person with the intention of causing the other person to fear physical or mental harm. I am well satisfied to the relevant legal standard that, having regard in particular to the context evidence which I have set out above, and which I accept, that by entering Ms Shlemoon's bedroom armed with a knife, flicking the blunt side on her leg to wake her up and continuing to bear it during their interaction, Mr Soomo committed the actus reus necessary for that statutory offence. I will return to the question of intent after considering the mental health impairment defence.

Count 2

The Crown case for Count 2 is summarised above (at [12]-[13]). Again the facts alleged are derived from the evidence of Soneevia and Sonia, whose evidence I accept. I accept the facts I have set out above have been established beyond reasonable doubt. The alleged offence is one of assault on Soneevia occasioning actual bodily harm contrary to the provisions of s 59 Crimes Act. While I have no medical evidence before me, I am satisfied beyond reasonable doubt that the three blows Mr Soomo struck to Soneevia's face causing her to fall to the ground, bleed from her mouth and suffer inflammation or swelling on the left side of her face involved actual bodily injury. I am satisfied on the limited evidence available that the Crown have established the actus reus of this offence. As with other matters, I will return to intent at the appropriate time. The intent for an offence of assault is satisfied, I remind myself at this stage, by the mere intent to deliberately hit or strike the complainant.

Count 3

I have summarised Count 3 at [14] above. The Crown case is based upon the evidence of Sonia and Soneevia and I am satisfied on the limited evidence available beyond reasonable doubt that those facts occurred. I am also satisfied, despite the absence of any medical evidence, that twisting Sonia's arm leaving bruises and scratches on it and with sufficient force to cause her pain for a few days after the incident, constitutes actual bodily harm. Like Count 2 the offence is contrary to s 59 Crimes Act. I am satisfied that subject to the question of intent, the actus reus constituting Count 3 has been proved by the Crown beyond reasonable doubt.

Count 4 - Murder

I reiterate that there is no dispute that by his conduct of stabbing Ms Shlemoon three times to her chest resulting in massive blood loss, Mr Soomo caused her death. The primary facts upon which the Crown case is based are summarised (at [15]-[19]) above. That narrative of fact is based upon the evidence of Soneevia, Sonia and Yousuf. It is also based upon the evidence of the crime scene officers who inspected the family home at Fairfield in the aftermath of the homicide, the account of some neighbours of the admissions made by Mr Soomo and admissions later made to the first police officers on the scene. I have also had regard to and accepted the postmortem report and the opinions expressed therein by Dr J Pokorny, Staff Specialist Forensic Pathologist dated 19 February 2021.
The ligature found around Ms Shlemoon's neck as she lay dead on the kitchen floor by first responding police officers did not contribute to her death in Dr Pokorny's opinion. Indeed, at autopsy, in any event, the ligature was located loosely around Ms Shlemoon's neck, but no injuries of the neck were identified externally or on layered dissection. The anatomy of Ms Shlemoon's neck was intact and there were no other clinical signs consistent with strangulation. An abrasion around Ms Shlemoon's mouth may represent a ligature mark, which could indicate that the rope had been tightened around her face, rather than her neck. However, the abrasion showed no specific pattern.
In addition to the three penetrating stab wounds on Ms Shlemoon's chest there were four incised wounds on her right hand which Dr Pokorny regarded as in keeping with defence-type injuries. I understood a stab wound to the right elbow also represented a defence injury.
There were also several small bruises and abrasions to Ms Shlemoon's upper limbs and face. I would infer these are also evidence of a struggle. There was a previous stab wound to the scalp on the back of Ms Shlemoon's head which had been stitched with three sutures. Dr Pokorny said, and I accept, that this is evidence of injury which occurred on a separate occasion prior to the fatal attack. In my view, this may be further context evidence, although I am unable to say so on the state of the evidence with any sense of assurance. According to the microscopic changes associated with that injury, it had an age of around three to five days prior to the fatal attack.
The presence of the ligature may be a confounding circumstance. The only evidence relating to it is a statement made by Mr Soomo to Detective Senior Constable Sheridan Cato, one of the senior investigating officers (Exhibit A, Tab 10, p 94 [36]-[39]). While in the custody of DSC Cato awaiting a forensic procedure, Mr Soomo volunteered that he had hurt his leg. DSC Cato asked how and Mr Soomo responded: "She hurt me. We were mucking around and I put a rope around her neck. She went and got a knife. She was going to kill me."
Given the various admissions made by Mr Soomo, the significant body of context evidence to which I have referred, and the counterfactual aspect of that evidence that on no occasion is there any suggestion that Ms Shlemoon offered any violence whatsoever to Mr Soomo, I reject that account of Mr Soomo to DSC Cato as one that could not possibly be true. To the extent to which it would otherwise suggest the possibility of self-defence, I put it to one side. In my view it completely lacks veracity.
I should say at this stage that I was shown a compilation of video evidence showing Mr Soomo within the curtilage of the Fairfield home in the immediate aftermath of the homicide and also at the police station during the ERISP. I have extracted statements made by him above (at [17]-[18]). The purpose of the compilation, Exhibit B was to show Mr Soomo's demeanour or presentation in the immediate aftermath of the homicide. The main purpose of showing it was to obtain the opinions of Dr Eagle and Dr Martin about whether the way in which he appeared in that footage said anything about his mental state at the time of the killing. On balance, both experts were of the view that while he appeared calm, impassive, co-operative and lucid, the footage did not provide reliable evidence of the absence of any relevant mental health impairment at the time of the homicide. Dr Martin referred to the difference between an "absence of evidence" and "evidence of absence". He added "a person can appear outwardly calm and internally have all kinds of psychological phenomena" (T24.15). When shown evidence of the ERISP, the experts gave evidence to substantially that same effect. The evidence I have extracted above (at [18]) comes from the ERISP. The matters I have quoted were volunteered notwithstanding that it appeared tolerably clear that Mr Soomo was attempting to exercise his right to silence. There was initially some ambiguity about that. From the expressions he used through an accredited Arabic interpreter, it appeared that he was only prepared to talk in a formal interview. The then officer in charge, Detective Sergeant Kieghran by his questions explored that briefly, as manifestly he was attempting to conduct a formal interview. But it became apparent from my observation of Exhibit B that he very quickly came to the conclusion that Mr Soomo was on the whole attempting to exercise his right to silence and the officer very appropriately brought the interview to an end.
I am of the view that the comments I have extracted at [18] above may properly be taken into account. First, they are matters which Mr Soomo volunteered; secondly, he has made similar statements to others including the police officers at the crime scene; thirdly, the statement, "my brain is not in my head now" given the mental health impairment issue, is a statement which may be exculpatory; and finally given the prompt termination of the interview there is no unfairness to Mr Soomo. However, I would wish to say that my findings about the physical elements of murder do not depend upon the statements made during the ERISP.
I am satisfied beyond reasonable doubt that Mr Soomo caused his wife's death by stabbing her, relevantly, three times in the chest and that the Crown have therefore established the actus reus for murder contrary to s 18 Crimes Act.

Expert Evidence

I return to the expert evidence of the psychiatrists. The first question is whether Mr Soomo suffers a mental health impairment. I have in general terms summarised the opinions of the qualified experts, Dr Eagle and Dr Martin above and highlighted the differences between them. At this stage it is perhaps well to say that their evidence was not the only relevant expert evidence before me. Specifically, the report of Dr Gerald Chew, Consultant Psychiatrist with Justice Health and Forensic Mental Health Network prepared for the MHRT and dated 15 May 2023 was tendered (Exhibit A; Tab 31) as was his report of 23 August 2023. I also had the benefit of a report of Dr Andrew White to the MHRT of 30 July 2024. While not a forensic psychiatrist, Dr White is a senior medical officer with Justice Health and the Forensic Mental Health Network ("Justice Health"). I assume from the content of his report that while not a specialist, he has considerable experience dealing with mental health issues. Finally, the Justice Health Records relating to Mr Soomo were tendered (Exhibit A; Tab C) and references were made to aspects of them.
It is necessary to say that whilst in custody and under the care of Justice Health there has been some question about whether Mr Soomo suffered from a neuro-cognitive impairment as opposed to a mental health impairment. Considerable time was taken in investigating that issue within Justice Health and with the benefit of external consultants. In his first report, Dr Chew broadly summarised those matters and concluded: "[Mr Soomo] has a complex picture with the most likely primary diagnosis being a Neurocognitive Disorder on the basis of Perry Syndrome. His mental state has fluctuated, and this may at least in part be secondary to his neurological issues. It is also possible that he has an underlying primary psychotic illness." Dr Chew adhered to that opinion in his second report.
However, it is pertinent to record that the neurocognitive disorder explanation has now finally been put to rest. In his report, Dr White recorded the following of an external neurologist: "Dr Duggins thought he could definitively exclude any neurodegenerative process as [Mr Soomo] was substantially improved over the last 2 years. He did not think there was a need for further investigative review".
It is also relevant to record that when reviewed by Dr White on 25 July 2024, Mr Soomo said he had been told he was in custody because he killed his wife "but denied any recollection of doing that or why he would do that". This, of course, is strange given the history of obsessive jealousy recorded by Dr Modem.
Dr White accepted that it was definitive that Mr Soomo did not have Perry Syndrome or any other neurodegenerative condition. He said, "[the] exact diagnosis remains elusive". He did, however, state, "[the defendant] has been diagnosed with probable delusional jealousy and this remains a possibility". But the absence of ongoing beliefs about his wife's infidelity was atypical. Dr White raised the possibility of malingering or embellishment of psychosis. He also raised the prospect of "Axis II pathology", which I understand is a reference in DSM-IV for grouping together Personality Disorders. The categorisation has not been continued in DSM-V and Dr White does not further expand upon his meaning, except to observe that "[the homicide] occurred on the background of longstanding jealousy associated with longstanding domestic violence".
From the Justice Health Records, my attention was drawn to the clinical note of Dr Trevor Ma, Forensic Psychiatrist of 13 February 2024. Dr Ma, from his review of the file recorded that Mr Soomo was not thought to be malingering, although his presentation was not necessarily thought to be psychiatric. There was no suggestion of any severe personality traits. On 11 April 2024, Dr Ma recorded an absence of reports of unusual behaviour consistent with severe cognitive impairment or acute psychosis. Dr Ma recorded his opinion that it remained unclear if Mr Soomo had delusional jealousy as part of a Delusional Disorder. The complaints of auditory-hallucinations Dr Ma recorded, which was the voice of the person Mr Soomo identified as a Lebanese man named "George", seemed atypical and unconvincing of schizophrenia. Dr Ma referred to the potential for malingering secondary to a lack of effort rather than cognitive impairment.
Justice Health were aware that Mr Soomo had consulted Dr Modem prior to the homicide of his wife. However, strangely, upon production of the Justice Health Documents under subpoena, no full report was available (T14.5) as I understand what I was told by counsel. It may be that the more recent clinicians who have examined Mr Soomo on behalf of Justice Health were unaware of that salient feature that Dr Modem had raised in June 2020, nearly 6 months before the homicide of Ms Shlemoon, of the possibility that Mr Soomo was suffering a psychotic illness of which the prominent feature or characteristic was delusional jealousy. I accept that delusional jealousy is not of itself a recognised psychiatric condition.
Returning to the evidence of Dr Eagle and Dr Martin, from their reports, it should be said that both doctors were provided with the Justice Health file and each of them undertook a thorough review of it. Their different opinions depend upon different considerations, but it may be said that Dr Eagle was inclined to accept that the observations of Justice Health personnel tended to confirm a psychotic illness. She was prepared to accept the auditory hallucinations and other bizarre behaviour such as Mr Soomo speaking into his shoe as genuine and confirmatory of the Psychotic Disorder that she diagnosed. Dr Martin was of the view that the account in relation to "George", who seemed to have developed into a friendly and ever-present companion was atypical of psychotic auditory hallucination. He regarded the talking into the shoe as more consistent with a conscious exaggeration or embellishment than a factor that was really symptomatic of a psychotic illness.
Dr Martin was of the view that a hallmark of a delusional disorder is its chronicity. It involved "an enduring fixed false belief, by definition". It was generally intractable to treatment compared to some other psychotic phenomenon. He doubted it could clear up. And this was a factor that concerned him about Mr Soomo's presentation, particularly as on occasion he denied any belief in his wife's infidelity or occasionally that his wife was dead.
While Dr Eagle agreed with what Dr Martin said about delusional disorders, she was of the view that the delusion may not emerge unless something contextualising the delusion was present to draw it out of the patient. Dr Martin was of the view that delusions that characterised delusional disorders are by definition plausible rather than bizarre; they are potentially plausible but are false.
Dr Martin agreed that Dr Modem's report left psychotic illness in play, but collateral information was required for confirmation. Dr Eagle agreed that was the proper understanding of what Dr Modem said. The collateral understanding, of course, is that which is likely to be obtained from the accounts of family.
There was more than one version of Dr Modem's report extant. They were not identical, but they were largely to the same effect. However, in what was regarded as "Version 1" by counsel, Dr Modem recorded that Mr Soomo was "consumed" by his jealousy and could not "overcome" it. Dr Martin considered that description could be significant, but it did not alter his opinion. Dr Eagle, on the other hand said that evidence suggested a level of intense pre-occupation with his jealous thoughts. They were fixed and these factors would be consistent with a delusion. Mr Soomo's insistence of having proof of Ms Shlemoon's infidelity was stronger than "just typical jealousy".
Dr Martin agreed that the depressive symptoms referred to by Dr Modem were reactive to his fixed obsessive belief about his wife's infidelity. Indeed, Dr Martin said that was "certainly plausible, possible, even likely" (T44.22). He referred to the ubiquity of jealousy as a human emotion. However, not every jealous pre-occupation rises to the level of delusional intensity. A jealous pre-occupation would not of itself merit a diagnosis of Delusional Disorder. And from the evidence of the 2017 matter, the contact of a romantic nature with another man goes against the view that Mr Soomo's jealousy was a fixed false belief. It does not necessarily exclude it but makes the diagnosis more complex.
Dr Eagle pointed out that on the history she received from Mr Soomo, he believed he had proof that Ms Shlemoon was having phone sex with various men and ongoing sexual relations with men in the house, notwithstanding the circumstance that Mr Soomo was unemployed and not absent for extended periods. She described this as a "larger than life scenario" and Mr Soomo was very fixated on that (T45.50).
Dr Eagle expressed the opinion that there was a difference between obsessive jealousy of itself and a delusional level of jealousy that rises to a recognised psychiatric phenomena as part of a Psychotic Disorder. She remained of the view the Justice Health records corroborated that Mr Soomo suffered a Psychotic Disorder.
Both doctors agreed that if Mr Soomo suffered a psychotic disorder characterised by delusional jealousy it was a mental health impairment for the purpose of the legislation.
Dr Eagle and Dr Martin also agreed that the facts of the homicide as I have summarised above by reference to the postmortem report of the forensic pathologist suggested a frenzied attack involving a loss of control (T71.10-50). However, Dr Martin emphasised that the loss of control itself did not necessarily prove that Mr Soomo was in fact suffering from a mental health impairment. He said morbid jealousy not associated with a Psychotic Disorder is frequently associated with anger and controlling behaviours. But he said "there is an intensity to having a jealous delusion which would make one more likely to overeact - to act out violently" (T72.30).
Both experts agreed that the choice between suffering a Psychotic Disorder on the one hand and malingering on the other was not binary. A person who actually had a Psychotic Disorder may exaggerate or embellish their symptoms just as they may minimise the symptoms depending on the circumstances.

Legal Considerations Informing the Applicability of the Mental Health Impairment Defence

The mental illness defence is governed by s 28 of the Act. Section 30 provides for what is referred to as a "special verdict of act proven but not criminally responsible" if the defendant establishes the mental impairment defence. It is important to understand that the legal consequences which follow a special verdict "are quite different from those which follow a plain verdict of not guilty on the ground that [the defendant] did not do the things charged": The King v Porter (1933) 55 CLR 182; [1933] HCA 1 ("Porter") at 185. In the event I return a special verdict the defendant will not be "completely free" to re-enter the community. If I return a special verdict, I am empowered to order that the defendant be detained "in the place and manner that the court thinks fit until released by due process of law (s 33(1)(b)). It is important to understand that I am not authorised to release the defendant into the community unless I am satisfied that his safety and the safety of any member of the public will not be seriously endangered by his release: s 33(2). A decision that he be detained in custody means that he will be a forensic patient under the supervision of the MHRT, which will review his case periodically and make orders for his continued detention, care and appropriate treatment. The MHRT may not release the defendant unless it is satisfied as required by law about his safety and the safety of members of the public. And it may only do so after it has given the Minister for Health and the Attorney General prior opportunity to make submissions about his possible release. The MHRT will be bound to review the defendant's case, at least every six months. It is composed of a President who is a judge or former judge or a person qualified to be a judge. The second member is either a psychiatrist or psychologist. And the third member is a person drawn from the community with appropriate qualifications and experience. Importantly, while he is under its supervision, the MHRT may make orders for the defendant's continued detention, care or treatment in a hospital or prison.
Not every case of mental illness is sufficient to satisfy the requirements of the mental illness defence absolving a person from criminal responsibility, as Dixon J (as the Chief Justice then was) pointed out as long ago as 1933 (in Porter at 187): "[The criminal law] attempt[s] to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like…"
As I have said, the applicable civil standard of proof of is less exacting than the normal criminal standard, but the necessary elements of the defence are not easily satisfied. The legal requirements of the defence have been established since 1843: R v M'Naghten (1843) 8 ER 718 ("M'Naghten") in the following terms: "… to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or if he did know it that he did not know what he was doing was wrong."
Thus, the only issue for me to decide is whether when he stabbed Ms Shlemoon the defendant did not know what he was doing was wrong.
Dixon J described the issue in these terms (Porter at 189-190): "The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong… What is meant by wrong is wrong having regard to the everyday standards of reasonable people." And Button J (in Carter v R [2019] NSWCCA 11 at [300]) has recently explained: The defence of mental illness can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts.
This consideration that the defendant may have appreciated the illegality of his actions, but not their moral quality, raises a requirement for particular care in the decision-making process. Although the distinction between legal and moral wrong is familiar enough to the criminal law: R v Pratt [2009] NSWSC 1108 (at [35] per R A Hulme J).
In R v Rodrigues [2010] NSWSC 198 ("Rodrigues") Johnson J summarised the effect of the Australian authorities in the following way at [33]: "A person does not know what he was doing was wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing." (Citations omitted). "Wrong" in this context is concerned with what is morally wrong and the test is whether the defendant could appreciate that his act was wrong according to the ordinary standards adopted by reasonable people; not whether he was capable of understanding his act was contrary to law: Stapleton v R (1952) 86 CLR 358; [1952] HCA 56 ("Stapleton") at 375.
For completeness, I record that if I am not satisfied that the mental illness defence has been made out, it will be necessary as I have said to go on to consider the question of whether the defendant intended to kill Ms Shlemoon when he stabbed her. The answer to that question will be informed by any mental illness, even if the illness does not rise to such a level as to support the mental illness defence. If I am satisfied beyond reasonable doubt that he had that necessary intent, a final question will be whether his mental illness supports the partial defence of substantial impairment provided by s 23A Crimes Act reducing murder to manslaughter. Again, the onus on this last issue rests upon the defendant, but only to the civil standard.

Conclusions on Mental Health Impairment Defence

The question to be determined on the balance of probabilities is whether at the time Mr Soomo stabbed Ms Shlemoon and caused her death, he had a mental health impairment that had the effect on him that he did not know that the act was wrong. There was no question in this case whether he knew the nature and quality of his act: he admitted that he had killed his wife to more than one person in the immediate aftermath. There is no suggestion that any mental health impairment was of a severity that deprived him of knowledge of the nature and quality of his act. As I have tried to explain in my legal analysis, the question is whether he knew that the act of killing his wife was morally wrong. A person does not know that his act was morally wrong if he could not reason with a moderate degree of sense and composure about whether the act as perceived by reasonable people was wrong.
There are two questions to be answered in this case, the first being whether he suffered from a mental health impairment. I remind myself that the legal standard attending all these questions is the balance of probabilities not beyond reasonable doubt.
I am satisfied on the balance of probabilities that Mr Soomo suffered from a mental health impairment, being a Psychotic Disorder characterised by a delusional belief that his wife had been serially and in a promiscuous way unfaithful to him from the commencement of their marriage.
In coming to this conclusion, I have given significant weight to the evidence of Soneevia, Sonia and Dr Modem. It is clear to me that Dr Modem before the homicide, considered from Mr Soomo's description of his symptoms that I have recounted earlier in these reasons that there was a real prospect that his belief in his wife's infidelity was delusional, and she required collateral information to confirm her diagnosis one way or the other. He certainly was then suffering at least from the symptoms of a Major Depressive Disorder by way of differential diagnosis.
In my opinion the evidence of Soneevia and Sonia confirm that Ms Shlemoon was a devoted and loving wife and mother. She was a religious woman and, leaving aside the 2017 matter, there is no evidence whatsoever to found Mr Soomo's false belief.
Given the intensity of his belief, the obsessiveness with which he held it and his feeling that it was overwhelming him, I am also of the view that while there may have been some truth about the online dalliance with a man in 2017 that was romantic in nature, that does not provide a sufficient basis in truth, to deprive his belief otherwise of its delusional character. The time over which he carried the belief, and its content in terms of serial promiscuity weigh strongly against accepting the belief as justified in fact on the basis of what may have been a single innocent indiscretion.
I fully accept that jealousy is a normal albeit negative human emotion and that morbid jealousy may give rise to other intense emotions. Obviously, in every case it must be a matter of fact and degree whether the line has been crossed so that the jealousy acquires the character of a fixed false belief justifying the psychiatric description of delusional jealousy. I am satisfied on the evidence, particularly the evidence of Dr Eagle that Mr Soomo's symptoms had long since crossed that line prior to the homicide of Ms Shlemoon.
I also accept, he clearly had some insight into his condition in as much as he sought assistance from his GP and was referred to a psychiatrist. But I am firmly of the view that the delusional nature of his disorder continued to affect him on 30 November 2020. This is not to say that there is not force in the opinions of Dr White and Dr Martin that there may have been a significant degree of embellishment or exaggeration, giving rise to a question about malingering. However, I am persuaded by the evidence of both Dr Eagle and Dr Martin that embellishment and exaggeration do not of themselves exclude a genuine underlying, ongoing mental health impairment. It may be understandable that a person may embellish or exaggerate symptoms while in custody, given some realisation of the nature of his predicament. It should also be acknowledged that there was the confusion about diagnosis referred to by Dr Chew and Dr White, which was only cleared up in July 2024 by Dr Duggan's final report.
I am satisfied on the balance of probabilities that Mr Soomo suffered the mental health impairment of a Psychotic Disorder involving symptoms of delusional jealousy.
I turn then to the question of whether Mr Soomo's condition was such that he did not know his actions were wrong. Given the long history of domestic violence, including violence towards his children as a consequence of taking out his false belief in Ms Shlemoon's infidelity on her, I am not persuaded that he did not know that the act of killing her on 30 November 2024 was wrong. His statement to his daughter, Soneevia, while in Syria that he would kill his wife pretending to be drunk so that the authorities would think he was not in his right mind is to my view, very telling as to his understanding. He clearly knew killing his wife was legally wrong, as is shown by his gesture depicted on Exhibit B of putting his hands forward, as though to invite handcuffing.
On the day before he killed his wife there had been an argument at the family home because he regarded his Sunday lunch as having been so late that he yelled insults at Ms Shlemoon, who on this occasion stood up to him insisting upon the respect to which she was entitled. She then went upstairs to her room. Mr Soomo expressed regret to his daughter, Soneevia, which was overheard by Sonia. He spoke of Christmas approaching and of the need for things to change. He said he did not want there to be any more fighting. This statement demonstrates an appreciation of the wrongfulness of his abuse of and violence towards Ms Shlemoon given that he was the cause and instigator of all the violence in the home. I am not persuaded on the balance of probabilities that he did not know his violence towards his wife was wrong. I am not satisfied on the balance of probabilities that he did not know that the ultimate violence of taking her life on 30 November 2020 was wrong at that time and I reject the mental health impairment defence.

Findings on Intent

It is necessary for me therefore, to consider the question of intent. Given my finding of the unavailability of the mental health impairment defence, I am satisfied beyond reasonable doubt that the Crown have established the necessary intent for Count 1, contrary to s 13 Crimes (Domestic and Personal Violence) Act. I am satisfied, given the contextual evidence that when he produced a knife on 21 November 2020, he did so to cause fear of physical harm in his wife. The time of night, his approach to Ms Shlemoon's bedroom armed with a knife, the consideration that he used the blunt end to rouse her from sleep and the contextual evidence together admit of no other rational inference. While not an element of the offence, there is no doubt from the evidence of Soneevia and Sonia that he did indeed cause Ms Shlemoon to fear physical harm. I will return a verdict that on the limited evidence available, Mr Soomo committed the offence charged in Count 1.
Turning to Count 2 and the assault occasioning actual bodily harm on Soneevia, on the evidence I have already accepted as to the physical nature of the acts, I am satisfied beyond reasonable doubt that he deliberately intended to strike Soneevia and the mental element of assault occasioning actual bodily harm is established. Again, I will return a verdict that on the limited evidence available, Mr Soomo committed the offence charged in Count 2.
So far as Count 3 is concerned, I am also of the view that he deliberately twisted Sonia's arm forcibly causing the injury which I have already accepted occurred. I am satisfied beyond reasonable doubt that he had the requisite intent for the offence of assault occasioning actual bodily harm of deliberately injuring Sonia and I will return a verdict that on the limited evidence available, that Mr Soomo committed the offence charged as Count 3.
The necessary mens rea of the offence of murder is that when Mr Soomo stabbed Ms Shlemoon three times, causing her death, he had the actual specific intent of either killing her or inflicting really serious personal injury on her. I am satisfied beyond reasonable doubt that when he stabbed Ms Shlemoon, he intended to kill her. I draw this inference from the severe nature of the three fatal stab wounds, the evidence of a struggle presented by the bruises and abrasions to various parts of Ms Shlemoon's body and the defensive knife wounds she suffered in the course of that struggle. I have also taken into account: his previous threats arising from the context evidence to kill his wife; and the admission he made in the immediate aftermath of the homicide that he had killed his wife. These circumstances together admit of only one rational inference and that is that he intended to kill Ms Shlemoon. I am so satisfied beyond reasonable doubt. This makes it necessary for me to turn to consider the partial defence of substantial impairment.

Substantial Impairment in Relation to Count 4 - Legal Considerations

As I have found Mr Soomo stabbed Ms Shlemoon with the specific intention of killing her I must then consider whether the partial defence of substantial impairment due to his mental health impairment under s 23A Crimes Act operates to reduce Mr Soomo's criminal liability from murder to manslaughter.
The partial defence of substantial impairment is established if the defendant proves on the balance of probabilities each of the following matters: 1. at the time he stabbed Ms Shlemoon, Mr Soomo's capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by his mental health impairment. The question in the present case really relates only to his capacity to control himself; and 2. the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
The first aspect is a mere question of fact. I have already decided Mr Soomo suffers from the mental health impairment of psychotic disorder characterised by fixed false beliefs or delusions that Ms Shlemoon was a promiscuous, serial adulteress, and had been from the beginning of their marriage. Because the onus of proof is on the balance of probabilities it was not necessary for me to be persuaded that this matter is the only rational inference available on the evidence. It is enough that I am satisfied that the inference is more likely than all the other available inferences. It need only be more likely in a small degree. The additional question, however, is whether his capacity to control himself was substantially impaired by his mental health impairment.
The second aspect requires me to make a value judgment. I keep in mind that the purpose of this law is to avoid subjecting people to the full force of the law where they may not be completely mentally ill but have had their faculties of self-control, judgment of right from wrong or ability to understand what they are doing, as the case may be, substantially impaired due to, in this case, a mental health impairment. I am required to make a value judgment as to whether the impairment was so substantial as to justify the reduction of murder to manslaughter due to Mr Soomo's mental health impairment.
The value judgment is not entirely at large. I am considering whether legal responsibility for the most serious crime of murder should be attributed to the defendant. The inquiry relates to the appropriate level of criminal responsibility of Mr Soomo for the homicide of his wife. Of central, but not necessarily decisive importance, is whether the impairment of his capacity for self-control meets the description so substantial, not "merely", substantial. This involves an evaluative judgment about the extent of the defendant's mental incapacity. To satisfy the test it need not be a total incapacity. A partial incapacity is enough. But the necessary extent of any partial incapacity is a matter for judgment by reference to community standards and the normative values of the criminal law.
In context, substantial means more than trivial; real, not fanciful. What is substantial enough to justify a reduction in the defendant's criminal liability is a matter for judgment. Part of the rationale now underlying the defence is that frequently, but not always, the criminal acts of the mentally ill justify less severe punishment, in cases where the defendant is fit to plead, than the criminal acts of persons of ordinary mental fitness and soundness.
In this case there is no evidence of current self-induced intoxication bringing s 23A(3) Crimes Act into play.

Conclusions on Substantial Impairment

Apart from the admissions made by Mr Soomo that he had "killed" his wife, there is no direct evidence of what happened in the kitchen of their Fairfield home on the morning of 30 November 2020. From the circumstantial evidence to which I have already made reference, one forms the picture of a frenzied attack. Both Dr Eagle and Dr Martin accepted that the objective facts as established by the findings on autopsy supported the inference of a loss of control on the part of Mr Soomo. Notwithstanding the contextual evidence of ongoing physical violence and abuse resulting on occasions in actual bodily injury to Mrs Shlemoon, nothing in the past had occurred of this apparent ferocity or severity, quite obviously so. I have not lost sight of the stitches suggesting a stab wound sustained earlier to the back of Ms Shlemoon's head, but I have put that matter aside for present purposes. I am of the view that the injuries sustained, the nature of them, their severity and the defensive wounds do bespeak a very significant loss of self-control by Mr Soomo, notwithstanding his apparently calm and passive demeanour in the aftermath. I repeat, neither Dr Eagle nor Dr Martin considered that his apparently calm demeanour provided any guide to the psychic phenomena that may have been affecting him at the time of the homicide.
I appreciate Dr Martin's opinion that in domestic violence situations, a loss of control can occur in the absence of any recognised psychiatric condition suffered by the perpetrator. I also bear in mind the long history of domestic violence and abuse which I have accepted occurred in this case.
On the basis of the evidence of Dr Eagle, and the hypothetical acceptance of it as a possibility by Dr Martin, I accept that a psychotic disorder characterised by delusional jealousy is a condition capable of substantially impairing Mr Soomo's capacity to control himself. I am satisfied on the balance of probabilities that his condition did in fact substantially impair his capacity for self-control on 30 November 2020 and his loss of control resulted in his fatal attack upon Ms Shlemoon. This finding answers the first question relevant for the purpose of s 23A Crimes Act favourably to Mr Soomo.
The second question of whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not a question for the psychiatrists. Rather, it is normally a question for a jury when one has been empanelled to try a case of murder.
As I have said, the second question requires me to make a value judgment bearing in mind community standards and the normative values which underpin the criminal law. As I have stated, a purpose of the criminal law is to avoid subjecting people to the full force of the law where they may not be completely mentally ill but have had their faculties of self-control substantially impaired due to a mental health impairment. As I have directed myself already, I bear in mind that I am considering whether legal responsibility for the most serious crime of murder should be attributed to Mr Soomo, having regard to the limitations of the evidence available at a special hearing and the limited verdicts available.
Given the long history of Mr Soomo's obsessive, indeed delusional jealousy, its intensity and his inability to overcome it because of the intractable nature of his mental health impairment, I am satisfied on the balance of probabilities that his mental health impairment was so substantial, or substantial enough, as to justify the reduction of his criminal responsibility from murder to manslaughter. I will bring in a verdict that on the limited evidence available, Mr Soomo committed the offence of manslaughter as an alternative to the offence of murder charged.

Verdicts and Orders

The for the reasons I have given my verdicts are: 1. On the limited evidence available, the defendant committed the offence of intimidation charged by Count 1. 2. On the limited evidence available, the defendant committed the offence of assault occasioning actual bodily harm against Soneevia Al-Qas Soomo, the offence charged by Count 2. 3. On the limited evidence available, the defendant committed the offence charged by Count 3 of assault occasioning actual bodily harm against Sonia Al-Qas Soomo. 4. On the limited evidence available, the defendant committed the offence of the manslaughter of Samar Shlemoon as an alternative to Count 4 in the indictment. 5. Direct the Registrar to forward to the MHRT a copy of my published reasons, the psychiatric evidence contained in Exhibit A; Tab B, and a copy of the transcript of the concurrent evidence of Dr Eagle and Dr Martin. 6. List the matter for proceedings on fixing the limiting term before Justice Campbell on 2:00 p.m., Friday 7 March 2025.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2024

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (14)