Solicitors:
Solicitor for Public Prosecutions (NSW) (Regina)
Abbas & Co Lawyers (Defendant)
File Number(s): 2020/246632
[2]
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 that he died from "sharp force" injuries, that is to say, stab wounds.
Based on the things that Mr Kelly said, suspicion immediately attached to Mr Fadel. The investigators attended Mr Fadel's home where he was arrested a short time later. His behaviour was aggressive. He was complaining that his head, neck and brain hurt, although there was no apparent reason for that, and it could be said that his behaviour was somewhat bizarre at that time. He said words to the effect of, "I'm a killer. We kill for a living."
Mr Fadel was charged with murder and attempted murder and he has been in custody ever since, that is since 24 August 2020, almost two years. He was committed for trial from the Local Court on 12 May 2022. The lawyers who were, and still are, acting for him raised a question as to his fitness to be tried. That question was first raised with the prosecuting authority on 11 October 2021 and with the Court on 21 October 2021.
The parties have each obtained a number of expert reports from well qualified psychiatrists and also a psychologist.
Dr Kerri Eagle prepared psychiatric reports dated 26 July and 1 September 2022. Dr Eagle was retained by the prosecution. Mr Fadel's lawyers retained two experts. Dr Stephen Allnutt prepared psychiatric reports dated 5 November 2021 and 22 March 2022, and Lisa Zipparo prepared a neuropsychological assessment report on 11 March 2022.
While there were nuanced differences in the diagnoses, descriptions of the symptoms and the opinions concerning the relevant criteria to be considered when determining a person's fitness to stand trial, the expert evidence was, and remains, unanimously of the view that Mr Fadel is not currently fit to be tried.
This morning the Court was called upon to conduct an inquiry into his fitness pursuant to the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). In accordance with the Act the inquiry has not been conducted in an adversarial manner and I have applied the standard of proof under the Act to the question of Mr Fadel's fitness. I have considered the matters that are mandatory for consideration in light of the tender by the parties of a joint tender bundle, (which was marked as Exhibit A), and the succinct and helpful written submissions of counsel for the prosecution and for Mr Fadel, (which were marked for identification as MFI 1 and 2). Counsel also provided me with equally succinct and equally helpful oral submissions.
Based on the evidence that has been tendered and the joint opinions of the experts, I am satisfied in accordance with the Act that Mr Fadel, at this stage, is not fit to be tried.
I have taken into account the issues that both counsel agree may arise in a trial and, in particular, it seems obvious from the reports that there may be issues concerning his criminal responsibility for his acts based on a defence of mental illness.
In respect of the murder charge, there may be an issue as to substantial impairment. The case in respect of the murder is a circumstantial case. It is anticipated, insofar as the parties are able to predict, the issues that may arise that form part of that circumstantial case may include what is probably better termed as coincidence evidence, whereby the prosecution will attempt to establish the murder charge by reference to the stronger case that it has in respect of the attempted murder or maliciously inflicting grievous bodily harm charge. It is stronger by virtue of the fact that the victim, Mr Kelly, nominated Mr Fadel as the perpetrator of the stabbing.
I have taken into account the involvement of capable legal practitioners and the various ways that trial proceedings may be simplified to facilitate Mr Fadel's understanding. However, the issues are, whilst not particularly complex for a homicide case, still quite complicated, and based on the evidence of both Dr Eagle and Dr Allnutt, I am satisfied that he cannot meet the minimum standards for fitness which are set out in s 36 of the Act. The two expert psychiatrists do not come to precisely the same conclusions in respect of the various matters enumerated in s 36(1), but I am satisfied based on his symptoms and the nature of his impairments that he will be compromised in respect of almost all of them and that he will be unable properly to exercise rights of challenge, that he will be incapable of providing his lawyers with appropriate instructions, and he will have real difficulties following the course of proceedings and understanding the substantial effect of the evidence being given in the trial.
I note that there has just been a short interruption to these ex tempore remarks because it seemed, to me at least, that Mr Fadel was in some distress and I have interacted with him. I reproduce that excerpt from the transcript for reference:
"HIS HONOUR: Mr Fadel, are you okay? Are you okay?
ACCUSED: Yeah, I'm all right.
HIS HONOUR: You just want to stand up for a while? [Mr Fadel was standing]
ACCUSED: No.
HIS HONOUR: Mr Breeze?
BREEZE: Mr Fadel, it's Matthew, your barrister talking. Could you just sit down for us just while the judge is talking?
HIS HONOUR: It's not necessary if he's more comfortable standing. I just wanted to make sure he was okay.
BREEZE: Are you okay, Mr Fadel?
ACCUSED: Yeah, not a problem.
HIS HONOUR: If you want me to take a break, I can. Would you prefer me to take a break or are you okay there? I won't be very much longer.
I think I will proceed, but thank you, Mr Breeze." [1]
A reading of the transcript does not illustrate the issues of communication that were patent. Mr Fadel appeared to be attempting to leave the AVL suite unexpectedly and did not appear to be following what was occurring in the courtroom. Nor did he respond in a way which suggested he understood what he was being asked.
I have to say these interactions further satisfiy me of the conclusions I have reached concerning his fitness, particularly in his capacity to follow the course of proceedings and appreciate what is occurring in a meaningful way (s 36(1)(d)-(e)) and communicate such that he may effectively instruct his legal representatives and mount a defence (s 36(1)(g)-(i)).
It is quite clear that Mr Fadel is unable to meet all of the criteria in s 36, and I am satisfied that inability to meet the criteria results from "a mental health impairment". Again, the psychiatrists use different labels or come to slightly different conclusions as to the nature of that impairment, but it appears to be a disorder involving a form of psychosis and in the nature of paranoid schizophrenia or schizoaffective disorder. I am also satisfied that it is likely he suffers from some form of cognitive impairment as described initially by Dr Allnutt who asked for it to be further investigated.
Having reached that conclusion, the Act requires me to make what has been described as a "binary choice" as to whether he may become fit to be tried within the next 12 months or whether he will not become so fit. That binary choice and the level of certainty required to come to the latter choice has been discussed by the now Chief Judge of Common Law in the case of R v Risi [2021] NSWSC 769 and earlier this week by me in the case of R v Woodham [2022] NSWSC 1154. The only expert who has provided a clear opinion on that subject is Dr Eagle who was retained on behalf of the prosecution, and Dr Eagle says in her report:
"Mr Fadel was unable to satisfy the fitness criteria and could be considered unfit for trial. His mental state appears to have improved since his arrest on antipsychotic treatment. He has been treated for almost two years. However, despite this period of treatment, he has displayed ongoing symptoms of psychosis. His mental state may further improve with continued antipsychotic treatment, and mental health support. Clinically and on psychometric testing, Mr Fadel displayed cognitive deficits. These deficits may be exacerbated by his persistent psychotic symptoms. There is information to suggest Mr Fadel has had some developmental delay and may also have cognitive deficits due to illicit substance abuse or head injury. Mr Fadel may be able to develop a better understanding of the Court process with education. On balance I am of the view that it is possible, albeit unlikely, that Mr Fadel's mental state could improve with the benefit of further treatment and mental health support sufficient to become fit for trial over the next 12 months." [2]
There is no reason I should not act upon that opinion.
What that means, in terms of the language of s 49 of the Act, is that he "may become fit to be tried for the offence[s] during the period of 12 months after the finding" I have previously made, being that he is not currently fit to stand trial.
Before I make formal orders, I would refer to the observations of Beech-Jones J (as his Honour was then) in the case of R v Risi at [59]-[61] concerning the Court's power beyond making an order that a person in Mr Fadel's position be held in custody. That is to say, there is a distinct limitation, or at least a very real doubt, as to the power of the Court to make orders as to where a person in his position should be incarcerated pending further inquiries by the Mental Health Review Tribunal. I was told in the course of the oral arguments today that he is currently being held in section 11 of the Metropolitan Remand and Reception Centre, and I am told that that is the mental health wing.
Dr Eagle, in her most recent report, referred to the limitations of treatment and education in a custodial setting, and I would certainly hope that the Department of Corrective Services and, when it has the paperwork, the Mental Health Review Tribunal, will give consideration to the most comfortable and therapeutically beneficial custodial setting for him. I do not have the information before me to enable me to make any specific recommendation as to that, but I will certainly make a recommendation in those general terms.
So, the orders that I make are these:
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.
[3]
Endnotes
Tcpt, 2 September 2022, pp 7-8.
Report, Dr Kerri Eagle, 26 July 2022, para 108.
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Decision last updated: 05 September 2022