R v Fazah [2012] NSWSC 1243

R v Fazah [2012] NSWSC 1243

Although the accused probably was malingering to some extent, the Crown psychiatrist did not affirmatively establish that he was fit to be tried, while the defence psychiatric evidence took malingering into account and still supported unfitness. On the balance of probabilities, the accused was unfit to be tried.

Jurisdiction
Australia
Judgment Date
16 October 2012
Procedural Posture
Criminal Proceedings on Indictment Alleging Murder and Wounding With Intent; Fitness Hearing / Fitness to Be Tried Determined Before Trial
Outcome
Accused found unfit to be tried; matter referred to the Mental Health Review Tribunal; accused remanded in custody.
Legal Topics
['murder' 'wounding With Intent to Murder' 'fitness to Be Tried' 'presser Criteria' 'referral to Mental Health Review Tribunal']
['criminal Law' 'mental Health Law'] ['murder' 'wounding With Intent to Murder' 'fitness to Be Tried' 'presser Criteria' 'referral to Mental Health Review Tribunal']

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Procedural Posture

Criminal Proceedings on Indictment Alleging Murder and Wounding With Intent; Fitness Hearing / Fitness to Be Tried Determined Before Trial

Legal Issues

  1. 1 ['Whether Mr Farden Fazah was fit to be tried on the indictment.' 'Whether apparent malingering or exaggeration of symptoms nevertheless left the accused unable to satisfy the criteria for fitness to be tried.']

Ratio Decidendi

Although the accused probably was malingering to some extent, the Crown psychiatrist did not affirmatively establish that he was fit to be tried, while the defence psychiatric evidence took malingering into account and still supported unfitness. On the balance of probabilities, the accused was unfit to be tried.

Court Disposition

Accused found unfit to be tried; matter referred to the Mental Health Review Tribunal; accused remanded in custody.

Orders

  • ['The matter is referred to the Mental Health Review Tribunal under s 14 of the Mental Health (Forensic Provisions) Act 1990.' 'The accused is remanded in custody until the determination of the Mental Health Review Tribunal under s 16 of the Act is given effect to.' 'The court registry is directed to provide the...