R v Al-Qas Soomo

1. [1]

   An indictment has been filed in this Court charging the accused, Mr Salam Al-Qas Soomo,1 with a number of charges, the most serious of which is that on 30 November 2020, he murdered his wife, Samar Shlemoon. A question as to the accused’s fitness to stand trial was raised on his behalf during a case conference on 17 June 2021 whilst the matter was listed at Parramatta Local Court. The matter has been listed before me to inquire into the accused’s fitness to stand trial under the regime set out in Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”). The Act came into force on 27 March 2021 and applies to this inquiry.

2. [2]

   Although this matter has some unusual features, it was common ground between the parties that the Court should make a finding that the accused is presently unfit to stand trial, and that he may become fit within 12 months. On the basis of the evidence before me, and for the following reasons, I am of the view that the accused is presently unfit to stand trial and may become fit to be tried in the next 12 months.

Nature of charges

1. [3]

   As to the murder charge, the Crown case is that on 30 November 2020, the accused wrapped a braided rope around his wife’s face, tightened the rope, and then fatally stabbed her inside their family home in Fairfield. He then walked outside and called the police. During that call, he admitted that he had killed his wife. Around this time, he also told neighbours that he had killed his wife and indicated that the two had been having issues for some time. He made similar admissions during the course of an Electronically Recorded Interview of a Suspected Person with police.

2. [4]

   Three other charges have been included on the indictment with the leave of the Chief Justice. These charges involve alleged conduct on 21 November 2020 leading up to the killing of the accused’s wife: an alleged assault on each of his two daughters (pursuant to s 59(1) of the Crimes Act 1900 (NSW)) as well as a charge of being armed with a knife with intent to intimidate (pursuant to s 114(1)(a) of the Crimes Act).

3. [5]

   It is also relevant to note that the evidence shows that the accused and the deceased originally lived in Baghdad, Iraq, where they married and had three children. The family moved from Iraq to Syria in 2004, and then to Australia in 2017. The accused was not employed in Australia.

The regime in Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in the context of this inquiry

1. [6]

   The question of fitness can be raised at any time, but s 37(1) of the Act provides that “the question of a defendant’s unfitness to be tried for an offence is, so far as practicable, to be raised before the defendant is arraigned on a charge in respect of the offence”.

2. [7]

   If the question of unfitness of a defendant is raised before the accused is arraigned, as it was in this case, the court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence (s 40(1)). The court must conduct an inquiry to determine whether an accused is unfit to be tried for an offence if the court determines that such an inquiry is needed and does not subsequently determine that the inquiry is not needed (s 42(1)(a)).

3. [8]

   Following a determination that an inquiry was needed, the matter was set down for a fitness hearing before me on 20 February 2023. Mr Hay appeared for the Crown and Mr Corish appeared for the accused. The Court is grateful for the assistance provided by counsel.

4. [9]

   The procedures to be followed in the inquiry are set out in s 44 of the Act. The question of an accused’s unfitness is to be determined by the judge alone (s 44(1)). The accused is to be represented by an Australian legal practitioner (unless the court allows otherwise) (s 44(2)).

5. [10]

   In accordance with the Act, the inquiry was not conducted in an adversarial manner (s 44(3)).

6. [11]

   The applicable standard proof is on the balance of probabilities (s 38). The onus of proof does not rest on any particular party to the proceedings (s 44(4)).

7. [12]

   The fitness test is set out in s 36 as follows:

8. [13]

   It has been observed that this provision appears to reflect the test stated in R v Presser (1958) VR 45 (“Presser”) (see R v Risi [2021] NSWSC 769 at [9] (Beech-Jones J) (“Risi”). It is important to note that the words of the section include that, if on the basis of a “mental health impairment or cognitive impairment, or both, or for another reason” the accused cannot do “one or more” of the matters listed in s 36(1), the accused is to be taken to be unfit to be tried. It can also be noted that s 36(2) makes clear that the criteria in s 36(1) are not exhaustive. Further, as noted in Presser at [48], and endorsed by the High Court in Ngatayi v R (1980) 147 CLR 1; [1980] HCA 18 at 8, in inquiries as to fitness, the criteria need to be applied “in a reasonable and commonsense fashion.”

9. [14]

   In addition, s 44(5) of the Act provides:

Relevant definitions

1. [15]

   Section 4 of the Act defines a mental impairment as follows:

2. [16]

   Section 5 of the Act defines a cognitive impairment in the following terms:

Evidence other than psychiatric evidence

1. [17]

   The evidence (other than the expert evidence) tendered before the Court for the purposes of the inquiry was as follows:

   1. (1)

      Indictment and Crown Case Statement

   2. (2)

      Statement of Detective Senior Constable Sheridan Cato dated 19 January 2021

   3. (3)

      Statement of Sergeant Luke Chenery dated 9 December 2020

   4. (4)

      Transcript of Record of Interview of the accused dated 13 January 2021

   5. (5)

      Statement of Sawsan Nour dated 30 November 2020

   6. (6)

      Statement of Plain Clothes Senior Constable Jessica Doyle with accompanying CCTV images dated 5 December 2020

   7. (7)

      Affidavit of Ivan Sayad dated 15 February 2023

   8. (8)

      Agreed chronology received by the Court on 17 February 2023.

Psychiatric Evidence

1. [18]

   On behalf of the accused, a report of Dr Kerri Eagle, a Consultant Forensic Psychiatrist, dated 14 December 2021 was tendered, together with a short email provided on 20 February 2023 in response to a request from the accused’s barrister for an update. Dr Eagle examined the accused by way of audio-visual link on 29 July 2021 and again in person on 2 December 2021, both with the assistance of an Arabic interpreter.

2. [19]

   In her report, Dr Eagle offered her observations and opinion as follows,

3. [20]

   Dr Eagle also addressed each of the factors in s 36 of the Act, indicating that none of the factors listed there could be achieved by the accused.

4. [21]

   The diagnosis by Dr Eagle was in the following terms:

5. [22]

   In relation to the overall question of fitness, Dr Eagle opined:

6. [23]

   In conclusion, Dr Eagle stated:

7. [24]

   At the time of writing her report, Dr Eagle noted that the accused had been referred for assessment to the mental health service at the Parklea correctional centre. She noted that “[t]he medical records of the correctional centre would be of benefit in determining the nature of his condition.” By the time Dr Eagle prepared her email dated 20 February 2023, she indicated that she had seen the clinical records provided to Dr Adam Martin and his report. She stated that the accused presented similarly to Dr Martin as he did to her. Dr Eagle opined that it was unclear what was causing the accused’s impaired presentation, and that subject to any significant change in his presentation since Dr Martin’s assessment, there is “certainly a realistic possibility that he may become fit within 12 months from today.”

8. [25]

   The Crown tendered a report by Dr Adam Martin, a Forensic Psychiatrist, dated 9 May 2022.

9. [26]

   Dr Martin interviewed the accused about five months after the second interview by Dr Eagle with the assistance of an interpreter. As noted on behalf of the accused, it is fair to say that Dr Martin was cautious, if not sceptical, about the bona fides of the accused’s apparent lack of fitness to be tried.

10. [27]

    Included in Dr Martin’s report was the following:

11. [28]

    In relation to the mental state examination, Dr Martin noted that:

12. [29]

    Under the heading “Fitness Assessment” and using the framework of the Act with reference to the Presser criteria, Dr Martin recorded that the accused responded, in part, as follows:

13. [30]

    Dr Martin also reviewed other material including the Justice Health medical notes. The notes from clinicians or nursing staff included: “noted to be talking to self”, and “nil overt psychosis – nil acute MMI [major mental illness].” Dr Martin also noted correspondence on the file from Dr Eagle where she wrote “I have seen [the accused] on two occasions. He has presented as confused and acutely psychotic. He believes he is in hospital and not a gaol, [and] is disorientated [as] to time and place. He reports persecutory beliefs and auditory hallucinations and appears to be responding.” Also noted was a further note of 10 December 2021 by a Nurse Practitioner which does not detail a formal clinical impression but recommends ongoing observation and prescription with Olanzapine (an anti-psychotic medication). A third review on 23 December 2021 by the same Nurse Practitioner notes the clinical impression as “not acutely psychotic, not melancholic” and makes a differential diagnosis of “adjustment disorder, reactive psychosis, malingering, mood disorder [depressive].” It is also noted that he was continued to be prescribed Olanzapine.

14. [31]

    Dr Martin then provided his opinion, which included the following:

15. [32]

    Under the heading “Fitness Issues”, the following is included:

16. [33]

    Dr Martin continued:

Consideration

1. [34]

   As noted above, the question of an accused’s unfitness to be tried is to be determined on the balance of probabilities.

2. [35]

   I have considered the reports of the two psychiatrists carefully in light of the test set out in s 36 of the Act. As noted above, s 36 provides that an accused may be taken to be unfit even if a mental health impairment or a cognitive impairment is not proved. Unfitness can be shown “for another reason”.

3. [36]

   Both doctors are of the view that the accused fails to satisfy most or all of the criteria set out in s 36. Dr Martin raises the question of the accused feigning or exaggerating symptoms of mental illness, but nevertheless remains of the view that the accused does not appear to satisfy many of the s 36(1) criteria.

4. [37]

   Whether the accused will ultimately be found to be suffering from a mental health impairment or cognitive impairment (or both), whether his lack of understanding of certain matters may have come about as a result of cultural or educational reasons, or whether the accused is malingering or exaggerating some symptoms (or indeed a combination of some or all of these factors) are not issues I am called upon to determine in this inquiry. Rather, I must decide, on the basis of the limited evidence before me, on the balance of probabilities, if the accused is fit to stand trial for murder (along with other less serious charges).

5. [38]

   In doing so, I must take into account the matters set out in s 44(5) of the Act including whether modifications or assistance to the accused can be provided to facilitate his understanding and effective participation in the trial, the likely length and complexity of the trial, and whether legal representation will be available to the accused.

6. [39]

   The charges are self-evidently serious. As submitted on the accused’s behalf, it is reasonable to assume the trial would occupy a number of weeks, would involve a number of expert witnesses, and would potentially involve defences which include psychiatric issues. I have taken into account whether or not a trial, with modifications allowing for breaks, additional explanations, and perhaps the presence of a support person would be sufficient to ameliorate the problems which the accused is apparently facing. I have come to the conclusion that in the circumstances of this case, the presentation of the accused is so uncertain such as to make appropriate accommodation of any problems, at this stage, impossible.

7. [40]

   Applying the fitness test in s 36 of the Act, on the balance of probabilities, on the evidence available to me, I am satisfied that the accused as he is currently presenting, cannot, at the very least, achieve the following:

   1. (1)

      Understand the offence the subject of the proceedings

   2. (2)

      Exercise the right to challenge jurors

   3. (3)

      Follow the course of the proceedings so as to understand what is going on in a general sense

   4. (4)

      Understand the substantial effect of any evidence given against the person

   5. (5)

      Make a defence or answer to the charge

   6. (6)

      Instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary

   7. (7)

      Decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.

8. [41]

   In summary, the weight of the expert evidence satisfies me on the balance of probabilities that the accused is unfit to be tried on the offences the subject of the indictment filed against him in this Court. Having made that determination, pursuant to s 47(1) of the Act, I must now determine whether, on the balance of probabilities, during the period of 12 months from today, the defendant may become fit to be tried for the offences, or will not become fit to be tried for the offences.

9. [42]

   As noted by Beech-Jones J in Risi at [55],

10. [43]

    Given the lack of clarity surrounding the cause of the accused’s presentation, and taking into account the views of the experts, it cannot be said that there is a real certainty as to the accused’s lack of fitness during the relevant 12 month period. I am not satisfied that the accused will not become fit to be tried for the offences in the relevant period (s 47(1)(b)).

11. [44]

    Having regard to the material before me, including the views of the experts, I am satisfied, on the balance of probabilities, that during the period of 12 months from today, the defendant may become fit to be tried for the offences (s 47(1)(a)).

12. [45]

    I must therefore refer the matter to the Mental Health Review Tribunal for review pursuant to s 49(1). I am of the view that the accused should be remanded in custody.

Orders

1. [46]

   Accordingly, the Court finds that:

   1. (1)

      In accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Mr Salam Al-Qas Soomo is unfit to be tried on the offences the subject of the indictment filed against him in this Court.

   2. (2)

      Pursuant to s 47(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the balance of probabilities, the accused may become fit to be tried for those offences during the period of 12 months from today.

2. [47]

   The Court makes the following orders:

   1. (1)

      Pursuant to s 47(2)(d) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the accused is remanded in custody.

   2. (2)

      Pursuant to s 49(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the accused is referred to the Mental Health Review Tribunal for review.

3. [48]

   Finally, the Court directs the Registrar to provide a copy of the exhibits and this judgment to the Mental Health Review Tribunal as soon as practicable.