R v Feili - [2013] NSWSC 492

Supreme Court

New South Wales

Medium Neutral Citation: R v Feili [2013] NSWSC 492
Hearing dates: 7, 11, 12 March 2013
Decision date: 13 March 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Fit to be tried

Catchwords: CRIMINAL PROCEDURE - fitness to stand trial - capacity of accused to understand evidence at trial and nature and course of criminal proceedings - accused suffers depression and insomnia - falling asleep during trial - preventative steps available - lawyer and counsel able to explain proceedings and important evidence - fit to stand trial
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Clarkson v R [2007] NSWCCA 70
Kesavarajah v The Queen (1994) 181 CLR 230
R v Presser [1958] VR 45
R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
Category: Principal judgment
Parties: Regina
Taleb Feili
Representation: Counsel:
Mr G Farmer SC with Ms J Single (Crown)
Mr W Flynn (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions
Archbold Legal

File Number(s): 2011/146355

Judgment

This trial is now in its fifth week following empanelment of the jury, or seventh week if one were to count pre-trial hearings. There are currently 12 accused.

A question of fitness to be tried

Last Thursday, 7 March 2013, Mr Flynn, counsel for the accused Feili, raised a question as to the fitness of his client to be tried. Having heard him outline his concerns I was satisfied that the question had been raised in good faith.

The basis upon which it is thought that Mr Feili is not fit to be tried is quite unusual; he is sleeping at times during the trial.

Section 10 of the Mental Health (Forensic Provisions) Act1990 (NSW) requires that once a question of fitness to be tried is raised in good faith after a person has been arraigned, a court must, as soon as practicable, conduct an inquiry in order to determine whether the person is unfit to be tried. Accordingly, the jury were sent away and I embarked upon an inquiry.

At the conclusion of the inquiry on Tuesday 12 March 2013 I announced my determination that Mr Feili was fit to be tried. The following are my reasons.

Evidence of Dr Stephen Allnutt

Dr Stephen Allnutt, forensic psychiatrist, was called on 7 March 2013 to give evidence on Mr Feili's behalf. He had seen Mr Feili on 22 January 2013 and diagnosed him as suffering from depression. He saw him again on 11 February 2013 and assessed him as being fit to be tried. However, when he saw him again last Thursday he came to the view that "on balance the reasonable position ... to take is that he's probably unfit to stand trial" (T1051.22). I will quote from his evidence to avoid any paraphrase that might put an inappropriate gloss on his opinion:

Q. That's the conclusion, so now we'll perhaps lead on. Could you tell his Honour what factors have led you to form that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Feili

Details

AGLC: R v Feili [2013] NSWSC 492
Case: [2013] NSWSC 492
Decision Date: 13 March 2013

CaseChat Overview and Summary

In the matter of R v Feili, the accused was facing a criminal trial in the Supreme Court of Queensland. Feili was charged with a serious offence and had a history of depression and insomnia. During the trial, Feili fell asleep several times, raising concerns about his ability to understand and participate in the proceedings. The issue before the court was whether Feili was fit to stand trial, considering his mental health condition.

The court was required to determine whether Feili had the capacity to understand the evidence presented at the trial, the nature and course of the criminal proceedings, and to participate effectively in his defence. The court considered medical evidence and testimony from Feili's legal representatives, who stated that they could explain the proceedings and important evidence to him. The court also noted that preventative measures could be taken to help Feili stay awake and attentive during the trial.

After considering all the evidence, the court concluded that Feili was fit to stand trial. The court found that while Feili's condition caused him to fall asleep at times, he was still able to understand the proceedings and participate in his defence with the assistance of his legal team. The court acknowledged that preventative steps could be taken to help Feili remain alert, but ultimately found that this was not necessary to ensure his fitness to stand trial. The court's decision was based on the fact that Feili's legal representatives were able to explain the proceedings and important evidence to him, and that he had the capacity to understand and participate in his defence.

Orders