R v Fattal & Ors [2011] VSC 681

R v Fattal & Ors [2011] VSC 681 - VSC 2011 case summary — Zoe

[31]

21 You, Fattal, were renting a room in a house in Lakemba in New South Wales. On the next morning, 28 March at about 8.34 am, you left that address wearing casual clothes and carrying a blue plastic bag. You travelled to the Lakemba train station and from there to the Holsworthy train station, changing trains first at Sydenham and then at Wolli Creek stations. At about 10.00 am you arrived at the Holsworthy train station, went up the stairs to the concourse that leads in one direction towards the Holsworthy Army Base and the other direction to an area of housing and a parking area. You initially walked over to the path that leads towards the Holsworthy Army Barracks, stopped, paused for a short time, turned and walked back along the concourse, down the stairs and towards what is visible as the station car park. There was some sort of construction site on the area opposite the car park at that time. When you went down the stairs, heading in the car park direction, you went out of sight and you were not captured again on CCTV footage until 10.12 am, at which time you were seen to walk up the stairs from the car park towards platform 2, which was where you arrived. You walked down the stairs to platform 2, then spent some time looking in the direction of the Holsworthy Army Base. You then walked back up to the concourse level, where you walked around for a short time and at 10.18 am, you walked along the concourse of the station going towards the Holsworthy Army Barracks. You were observed to walk down the steps and along the path that runs beside the boundary of the Holsworthy Army Barracks. You walked up to near the entrance of the Holsworthy Army Barracks, where you stood for a short time, turned around and walked back in the direction from which you came. You climbed the stairs to the concourse area and then spent some time standing, staring in the direction of the Holsworthy Army Base. You then left and caught a train back to Lakemba via the different stations. You were seen arriving at 11.48 am at the Lakemba railway station.

[46]

Aweys: That is correct. It is good. I will tell you now in advance, as I have told you, these are men from the Middle East. They are youth ... What can I say ... There are about five to six men now. Men who are their friends are in prison who we too knew each other earlier, but who were very close to them and their kinship have been imprisoned. They are imprisoned in this country. So, there are issues about these men having an intention to conduct operations here. We then disagreed between ourselves. We said - what if this endangers of all Muslims in this country/city/town, and they are saying we are not going to stay like this til you bring us a religious verdict. They also said that they do not trust the men, religious scholars, in this country like the sheikhs residing in this country. Hence, like your sheikh they said like that sheikh we would accept and that we will abide/accept what he tells us.

Hayakallah: Smart. May Allah bless you. Ammo, this is a religious question. They are right. It is good. So, what they actually want to do is revenge and hit the enemy in the artery, no matter what happens. Isn't it that what they want.

Aweys: Yes. What happened is that one thing. There are men, you, there are men and I don't know if you have heard it before. Who are numbering up to 10 had been imprisoned here. These people, you know these infidels, they accuse them of something. Anyhow, the men were convicted and they are sentenced between 10 to 15 years of imprisonment. They were very good youth who were humble/poor and they were falsely framed for something that does not exist. These men are the ones that remain behind and we were nonetheless associates of them. But, we known them informally in general sense, and they are good people whom we are brothers. So, one of them came up with this story - to do something, here and against these men. He said the reason is you know that they are holding our men and you and I know that they are holding them in aggression. They invaded our Muslim lands in aggression and the army of this country where we are is currently away. He raised a lot of questions and he said we want to do something here. We will not just sit here and we could not go to your land as well, so he said what do we do then.

[48]

I don't know if Ammo told you but the guys are men who came from the Middle East and areas of that proximity, you would know.

Abdirahman: Very much so.

Aweys: Hence, they want to know if they are about six guys who were among our colleagues. They want to know if it could be carried out here operations or if, for example, something can be robbed/taken from this government. Because they are saying that they are engaged with us in a war. Is it permissible for us to, like, to rob the system, do you understand.

Abdirahman: Very much so.

Aweys: Because, most of them cannot leave as their passports were confiscated, and are followed by entities of the State/Government. So, they can't go anywhere.

Abdirahman: Yes.

Aweys: Therefore, they are saying if we are stranded/stuck here, what is then permissible for us to do for Allah's sake. That's what they would like to know.

Abdirahman: So, they want a martyrdom operation.

Aweys: Yes. Mostly they can access acquiring weapons such as guns/rifles. They know where they can get them. Thus, they want to enter into where the military/forces are stationed, the barracks. Their desire is to fan out as much as they could until they would be hit.

Abdirahman: Yes, whatever it's very much so.

Aweys: So, they are saying that they can have the chance of guns/rifles that can take/carry up to 60 bullets and, which takes/accommodates 60 seeds. And 20 minutes would be enough for us to take out five, six, 10, and 8 whatever Allah know, who are the armed forces.

Abdirahman: What did you said. Up to six minutes.

Aweys: No. Six of them once they enter inside the location/place for 10 minutes, the specified place, for about 20 minutes to 30 minutes until they will use up their weapons. What they can get.

Abdirahman: Very much so.

Aweys: Is that permissible? Could there be disastrous repercussions and that many issues/concerns.

Abdirahman: Look brother.

Aweys: Yes brother.

Abdirahman**:** The clerics say 'The judgment of something is a branch of its [inaudible].

Aweys: Yes.

Abdirahman: That means when you want to answer an issue from a religious law perspective.

Aweys: Yes.

Abdirahman: It's imperative that the question in the prevailing circumstances must be thoroughly understood.

Aweys: Yes. Correct. And that's why they rang for. That's the importance of it all.

Abdirahman: If they want to enter into a martyrdom or risky venture, we would be looking, you know, into the religious legality of what they men can cause, firstly.

Aweys: Yes.

Abdirahman: Firstly, assessing the enormity of the damage that they can inflict the enemy.

Aweys: Yes.

Abdirahman: The repercussions of its aftermath and any lingering effects would be analysed.

Aweys: Correct.

Abdirahman: So, where you are is Australia isn't it.

Aweys: Yes. It's Australia, and in the city of Melbourne. As you may be aware of these guys that we are present in their midst, the infidels, their forces are cast in the land of Islam, and are causing great damage in the upper front.

Abdirahman: Yes.

Aweys: They are casted from Afghanistan up to Iraq. They are massacring and do no favour to anyone. They are augmented infidels, and these ones aren't any better than the English.

Abdirahman: I am aware of them, man, what I ask you brother

[74]

Mr Fattal's presentation and the history of kick boxing raised the question of brain injury associated with kick boxing, chronic traumatic encephalopathy. It could be argued that his intelligence and memory have been affected by the many concussive blows to the head he has suffered in the past. It is also significant that in the course of his career he has suffered from severe headaches and an episode of memory loss for a period of 24 hours. The question of epilepsy has also been raised and an EEG when he was 17 showed some abnormal activity in the frontal lobe. At various times in his career his symptoms have led him to abandon kick boxing only to return when the symptoms subsided. He complains of similar symptoms on this assessment. He describes episodes in prison when he has been affected by loud noise ('I go crazy') and he also obtained a high score on the post concussional syndrome scale, endorsing items such as headaches, dizziness, noise sensitivity, sleep disturbance, fatigue, irritability etc as severe problems.

As far as his cognitive/executive skills are concerned there are reasons for not accepting the proposition that his intelligence has been affected by brain injury. In my opinion, Mr Fattal's low cognitive functioning is not the result of trauma; it is a longstanding condition that represents his natural intellectual endowment...

In Mr Fattal's case he performed at a low level on all tests given with no evidence to suggest that his vocabulary has ever been at a higher level. Even his arithmetical skills are low, supporting the idea that his abilities have always been about the borderline level.

The results show that Mr Fattal does not suffer from an intellectual disability as his intelligence on the verbal comprehension index (72) and perceptual reasoning index (71) is above the cut off of 70. Determination of intellectual disability also requires there is an impairment in other areas of functioning such as communication skills or adaptive functioning. Mr Fattal does not suffer from any of these conditions.

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