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

1. 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

1. 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.

1. 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.

1. 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.

1. 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

1. 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 view?

A. Firstly, he has a depressive disorder that has been evident since at least when I saw him.

Q. That is when you first saw him?

A. Correct.

Q. Continue.

A. I would formulate that the context that he is in at the moment has been acting as a significant stressor for him. What he's complaining of are three problems: insomnia, concentration difficulties and fatigue and motivation problems which probably go together. Insomnia, difficulties with concentration, fatigue are common symptoms of depression. He is, I think - he has, I think, found the hearings to be stressful and upsetting emotionally and what happens is when he returns back to Villawood for the night he becomes preoccupied and ruminative of the hearings. He's vulnerable to that due to his depression. As a consequence of his ruminations and anxieties he doesn't sleep and he's vulnerable to not sleeping purely because he has depression in the first place, so insomnia is a symptom of depression, so he becomes ruminative, unable to sleep at night, wakes up in the morning unrested, fatigued and, in the context of the hearing, he's unable to maintain his focus and concentration and so falls asleep. So essentially he's not following proceedings as a consequence.

To some degree one might say that there is an element of voluntariness to it. It's upsetting for him and he sometimes doesn't want to focus and be there, and in the absence of depression, one might draw that conclusion, but I think given that he's got a depressive disorder, and is experiencing symptoms of depression, that makes - provides an involuntary component to the problem. And on balance I think it would be reasonable to conclude on that basis that he's unfit to stand trial because of his depression and because he cannot follow proceedings. That then impacts on the quality of his interaction with his counsel.

There's a further problem that has been communicated to me by his counsel that he seems not to remember from day to day what was discussed the day before. That's not an uncommon complaint in people who have significant depression because one of the symptoms of depression is concentration problems.

So on balance I think the reasonable conclusion is he's unfit to stand trial basically because he fails on the issue outlined in Kesavarajah rather than Presser.

Q. Doctor, there has been a change from the time that you saw him on 11 February to today's date as outlined by you, correct? In the sense that he was assessed by you at one stage to be fit for trial and now unfit for trial?

A. Yes. He described to me that he feels he's deteriorated as the trial has continued. At the time that I saw him, I suppose there was no clear - I mean, while he had complained of concentration problems and he did have insomnia, many people come before the Court with depression because they are in front of the Court often and are still fit. So at that stage, in a sense, his capacity to follow proceedings appeared to be adequate. It's in the context of the trial that it's been tested and it doesn't seem to be the case.

Q. That was the point I was moving to. The trial itself has caused more symptoms which have led you to conclude that he is now unfit for trial?

A. Yes. I think it's fair to say that the trial is a stress for him and aggravates symptoms for him. (T1051.25-1052.33)

1. Dr Allnutt understood the position to be that Mr Feili had not received any treatment for his depressive disorder and was not prescribed any medication for it. He was taking some sleep medication but claimed that it did not work (T1053.4). If he were to commence on a course of antidepressant medication, one would expect to see some response over a period of two weeks and a reasonable response by four weeks (T1060.15).

1. In cross-examination the Crown Prosecutor asked of the prospect that Mr Feili was taking the antidepressant medication Avanza. Dr Allnutt was not informed of this as part of the history given by Mr Feili. He said people often confused sleep medication, which Mr Feili said he was taking, with antidepressant medication. Significantly, however, he added that Avanza has the effect of causing drowsiness (T1062.20). By the conclusion of the inquiry, however, there was no evidence placed before me as to precisely what medication Mr Feili has been taking.

1. Dr Allnutt was asked whether it was possible that Mr Feili was feigning his symptoms. The evidence on this aspect included the following:

Q. So as to whether he is asleep or not is a matter of fact that has to be determined?

A. Correct.

Q. If he's feigning or not being completely honest as to what is happening during the course of the trial during the day-to-day proceedings, that would change your opinion?

A. Yes. Well, if he's not, in fact, sleeping, that would, I suppose, diminish the likelihood.

Q. That he's unfit?

A. That he's unfit because it predominantly rests on him not following proceedings. There are other aspects that may be impacting which is poor concentration, but if he is, in fact, feigning sleep then that does, I suppose, jade that argument. (T1062.45-1063.3)

1. An aspect that was raised by Mr Flynn as a matter relevant to his client's fitness to be tried was that there were difficulties in communicating with Mr Feili in that he did not seem to recall what was said from one conference to the next. The point was not really developed. It seems to me that the simple solution would be for Mr Feili to be reminded of what had been previously discussed.

Evidence of Dr Bruce Westmore

1. The Crown engaged Dr Bruce Westmore, forensic psychiatrist, to see Mr Feili on Saturday and to provide a report. Dr Westmore was called on Monday 11 March 2011 to give evidence and his report became Exhibit A on the inquiry.

1. Dr Westmore took a relatively lengthy history from Mr Feili and made a provisional diagnosis that he was suffering from a chronic Adjustment Disorder with depressed mood. A differential diagnosis would include Dysthymic Disorder or a Major Depressive Disorder.

1. Dr Westmore's ultimate conclusion was that "Mr Feili is fit to be tried if he can remain awake". His report includes the following:

Despite his depression, I did not think he was cognitively impaired in any significant way (because of his depression) which might compromise his fitness. He does not have evidence of an organic disturbance and he is not psychotic. His history is that he is chronically tired and has major problems sleeping. While psychiatrists have no expertise in truthfulness, I think his overall affect and demeanour were consistent with the history he gave in relation to his state of tiredness. He was not a dramatic or histrionic historian, more fatigued, reserved and a little withdrawn.

He could however indicate quite clearly and consistently that he did want the legal matters to proceed to their conclusion.

Mr Feili is likely to be falling asleep in court in part because he is tired, but also because he is disinterested in the outcome, or at least he has been to date. His position is that nothing much else can be done to him now. His application to remain in Australia has been rejected, he is uncertain about the welfare of his family and he has had 2 heart attacks and he is worried about possibly having a 3rd heart attack.

His sleep hygiene appears to be problematic, but that might be corrected with appropriate medical management. In the court setting he might be assisted by having an individual interpreter whose job would be not only to ensure that he understands what is said and what is happening in court, but also to ensure that he remains awake. The court may also be able to make some allowances for Mr Feili by giving him some regular breaks during the proceedings.

1. Dr Westmore's account of his conversation with Mr Feili included that he asked, "what must I do?" Dr Westmore told him that he would need to stay awake in court and that if he continued to experience such problems the process might be even more protracted than it currently was. Mr Feili indicated that he understood and said, "Yes, I will do my best to be awake in court". He also said that he wanted the case to be finalised.

1. One suggestion to deal with the problem of Mr Feili falling asleep in court was to have somebody keep an eye on him and give him a gentle prod or tap when necessary. Dr Westmore was asked whether even if Mr Feili appeared to be awake that it would necessarily follow that he was aware of what was happening within the courtroom. He said there was no psychiatric reason why that should not be the case. It was possible that Mr Feili might appear to be awake but not following the proceedings, that is, not attending and concentrating, but that was not caused by his depression. (T1069.20)

1. The way to determine whether Mr Feili was awake but not attending or concentrating on the proceedings would be for his lawyers to discuss what had been occurring and to gauge what he appears to have comprehended (T1069.45). Mr Flynn indicated that this might be something that would have to be done on an ongoing basis. Dr Westmore replied, "if it is an ongoing problem, it is not arising primarily from a psychiatric reason". (T1070.10)

1. Mr Flynn then asked a question that appears to have misunderstood Dr Westmore's opinion, but Dr Westmore reiterated:

Depression can impact in the way we've been discussing but I do not believe he is so depressed that he doesn't have the ability or the capacity to attend and concentrate (T1070.16).

Further evidence by Dr Allnutt

1. Dr Allnutt was re-called to give evidence in response to that of Dr Westmore. Before he gave that evidence I was informed by the Crown Prosecutor:

Mr Flynn's client was seen by a different psychiatrist on Sunday and his medication has been changed. Last night or yesterday afternoon he was unable to be seen by a general practitioner but was seen by a nurse from the IHMS service who was instructed to give him some counselling, as it were, in relation to sleep hygiene. I understand that took place.

The reports from the late mail is that he was asleep [last night] by 10.40pm and woke up at 6.50am. (T1079-1080)

1. Dr Allnutt said the following in his further evidence in chief:

Q. Having read the report and read the evidence of Dr Westmore, is there anything in that material that causes you to change any view that you expressed when you were last giving your evidence?

A. No, not substantially. The way that I see it is that the issue here is his insomnia. That was my view the last time I gave evidence. I suppose the only thing that I would suggest is I would agree if one can treat the insomnia then one treats the fitness issue. But if there is insomnia, I think it becomes a matter for the court to determine, on a matter of fact, whether or not he does have insomnia and whether or not he does in fact fall asleep during the proceedings.

If he does in fact have insomnia and does in fact have difficulty falling asleep through the proceedings then I think in fact Dr Westmore would even agree with me if I asked him to think back on his days as a medical student and being up all night on call and being expected to attend lectures the next day and the difficulty one would have in concentrating and focusing and the desire to sleep that one would experience. So it boils down to the issue of insomnia.

If that issue can be solved, and I just heard some anecdotal evidence today that it might be solved, then I think on balance one might fall in favour of fitness. If that issue can't be solved then I think - and it is factually determined that he has insomnia and it is factually determined that he is sleeping during the proceedings, then it is obvious, I think it stands to reason then, that he is unfit to stand trial because he is falling asleep.

I have looked at the options of having somebody nudging him. Something even more helpful might be holding his eyes open for him. The thing is that somebody nudging him doesn't mean, if he is truly sleepy and tired, somebody nudging him awake to me implies that there are intermittent periods when he is not following proceedings and on balance you will have to find he is unfit. So I think Dr Westmore and I agree in all areas if insomnia is determined as a factual issue here. (T1081)

1. The following evidence given at the conclusion of Dr Allnutt's further evidence is of importance:

Q. Doctor, can I just clarify something with you. Going back to Presser and Kesavarajah I want to be absolutely clear what is the basis for your opinion that he is unfit. Is it because he does not have the capacity to follow the course of the proceedings so as to understand what is going on in court in a general sense and/or he doesn't have the ability to understand the substantial effect of any evidence that may be given against him? They are two Presser criteria that seem to be what you are concerned with but I would like to hear it from you?

A. I think yes, I think it goes to those two. I think - look, it depends on what the thresholds are here and that again sometimes varies from court to court. People apply different thresholds depending on the duration of the trial, depending on the nature of the evidence that's required. So that's got to be taken into consideration as well.

I suppose how important, and an issue has been brought up about that, how important it is that he hears all the evidence, but in particular the evidence that pertains to him; that he actually hears and takes in what each witness is saying about him in particular, whether that is happening.

Q. But he is not doing that in a direct sense?

A. If he's not doing that then--

Q. If that man reading off a computer screen in the dock is not there he wouldn't have a clue what was being said. He wouldn't be able to follow the evidence at all. So we take the step of providing an interpreter so that the evidence can be relayed to him. He is getting it secondhand though. Similarly, if my understanding of the law is correct, Presser does not require an accused to be able to hear first-hand and understand every single word that is uttered in a criminal trial but they have to have an ability to generally follow the course of the proceedings and generally to understand the substantial effect of the evidence. Now, given there is one example of him not hearing any of the evidence first-hand is another example that might be considered, the fact that he can have any of the evidence that he has missed himself repeated to him. We have a daily transcript, we have lawyers keeping notes; if his lawyers, in conference, become aware that he has missed something they can tell him exactly what was said. So he does have that ability, second-hand albeit, to be able to follow the evidence and to understand the substantial effect of it.

A. Yes, I would accept that.

Q. So if that is borne in mind he must be found to be fit, mustn't he?

A. If that's the test then he must be found to be fit as long as he - as long as - yes, if he can take the information in afterwards in a meeting with his counsel then - and the test is a general understanding of proceedings and, as I say, that has - that varies, but if that's the test then on balance he probably would be regarded as fit if in meeting with his counsel afterwards he is able to take that information in and communicate with his counsel in relation to that during that meeting.

The issue though is there may be evidence that is provided that is crucial that may be, for him, has special importance and he may miss it, but that's another side of the spectrum. It depends where - again it is a threshold - it depends on how broad - where one draws the line upon that spectrum.

Q. The question is not so much whether he has a reduced capacity to follow the course of the proceedings to understand what's going on in court in a general sense and understands the substantial effect of the evidence. A reduced capacity doesn't mean a person is unfit. It is a question of whether the person is denied that capacity and the authority for that is The Queen v Rivkin, a 2004 case. So it is a question here as to whether he is denied the capacity and, bearing in mind steps that can be taken for him to be acquainted with the evidence with the assistance of his lawyers, I wonder whether it truly can be said that he is denied those capacities?

A. If he could be provided with that information by the lawyers and not miss crucial information and that - and he takes that information in from his lawyers, then I suppose, on balance, it would meet that test.

Determination

1. It has been my observation at various stages of the trial that Mr Feili has appeared to be asleep. Up until Mr Flynn raised his concerns last Thursday, I simply assumed that this was out of boredom or disinterest.

1. I accept that there is a possibility that Mr Feili has been falling asleep as a result of fatigue, or being chronically tired as a result of not getting sufficient sleep at night. Dr Allnutt spoke of insomnia being a result of the depressive disorder from which Mr Feili suffers. Dr Westmore does not appear to take issue with that. I accept that evidence.

1. I accept also that a contributing cause may well be that Mr Feili is either bored or disinterested, or, as Dr Allnutt put it, he finds it "upsetting to him and he sometimes doesn't want to focus and be there" (T1051.50). For a lot of the time during the trial there are matters being discussed that do not have any direct relevance to Mr Feili, aside from the issue as to whether there was a common purpose of those involved in the disturbance at the Villawood Immigration Detention Centre that is the subject of the charges. There is nothing before me that would indicate he has been asleep when matters of importance to his case were the subject matter. Even if that was the case, there is nothing to indicate that it has not been possible for Mr Feili to be kept apprised by his lawyers of what has been said of relevance to him. The court reporters are providing both a real-time and daily transcript service. No attempt was made to place any evidence before me to the effect that Mr Feili has missed something that is "crucial" to the case against him, or to his defence.

1. Dr Westmore spoke of a number of steps that could be taken to overcome the consequential problem of Mr Feili falling asleep in court. Having somebody sitting in the dock monitoring him and attracting his attention if he looked drowsy was one. Having his general sleeping arrangements, or "sleep hygiene" as Dr Westmore called it, reviewed was another. Further, consideration by a general practitioner to prescribing appropriate medication might assist. It seemed from what the Crown Prosecutor told me just before the further evidence of Dr Allnutt on Tuesday 12 March 2013 that some steps have been taken. Whether they will have any ameliorative effect remains to be seen.

1. According to Dr Westmore, Mr Feili is motivated to see the trial proceed to conclusion. Neither doctor saw anything that would give rise to concern that he was not genuine in this respect.

1. Both Dr Allnutt and Dr Westmore are of the view that if Mr Feili is sleeping through periods of the trial then he is unfit to be tried. The converse, obviously, is that if he is not sleeping through periods of the trial he is not unfit. If Mr Feili makes a concerted effort to stay awake, perhaps aided by the various measures alluded to above, and is successful, then a conclusion that he is unfit is not justified.

1. I must say, however, that I am not entirely convinced that a person can be unfit to be tried on account of the person sleeping at times during their trial.

1. Fitness to be tried is assessed by application of the criteria referred to by Smith J in R v Presser [1958] VR 45 at 48. Dr Allnutt said in the passage from his evidence extracted above (at [6]) that Mr Feili was "unfit to stand trial ... because he fails on the issue outlined in Kesavarajah rather than Presser". This view was not fully developed in submissions or evidence. But I understand it to be a reference to considering fitness in the light of the expected duration of the trial, especially where the issue is manifested in a psychiatric condition that may become more florid in response to the stressors of the proceeding. I am satisfied that, unless it proves otherwise, the ameliorative measures outlined at [24] are an appropriate response to managing the symptoms of sleeplessness for the duration of the trial.

1. There is no specific reference in the Presser criteria (nor in Kesavarajah v The Queen (1994) 181 CLR 230 for that matter) to being able to stay awake and listen to every single word uttered during the entirety of the trial. The closest any of the Presser criteria comes to being relevant to the present situation, at 48, is:

He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formalities. He needs to be able to understand ... the substantial effect of any evidence that may be given against him ...

1. Dr Allnutt confirmed that these were the aspects that gave rise to his opinion as to unfitness (see above at [20]).

1. In Clarkson v R [2007] NSWCCA 70, Beazley JA (as her Honour then was) reviewed extensively the law relating to the issue of an accused being fit or unfit to be tried. Whilst it was accepted that the Presser criteria has long been the understanding in the common law of the measures by which fitness to be tried was to be assessed, her Honour's review of authority included the following statements of the general concept:

[130] In Ngatayi v The Queen (1980) 147 CLR 1 Gibbs, Mason and Wilson JJ observed that legislation governing "fitness to be tried" had always been interpreted as to raise the question "whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge": see R v Pritchard (1836) 173 ER 135 per Alderson B.

...

[132] Their Honours, at 8, said that the test "looks to the capacity of the accused to understand the proceedings", but pointed out that complete understanding was not necessary. Their Honours agreed with the approach taken by Smith J in Presser that the test needs to be applied "in a reasonable and commonsense fashion". Their Honours essentially endorsed the statement of Smith J as to the minimum capacity an accused needed before he could be tried without unfairness or injustice. ... At 9, their Honours reiterated the test to be applied, namely, whether the accused person "is capable of understanding the proceedings at the trial so as to be able to make a proper defence".

[133] The High Court again dealt with the question of fitness to be tried in Kesavarajah v The Queen (1994) 181 CLR 230. ... Again, the Court accepted the test to be applied was one that "looks to the capacity of the accused to understand the proceedings". ...

[134] In Eastman v the Queen (2000) 203 CLR 1; [2000] HCA 29 ... Gaudron J said at [57] that in general terms, a person was fit to plead if that person "has sufficient understanding to comprehend the nature of [the trial] so as to make a proper defence to the charge". ...

...

[142] In R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7, the Court (Mason P, Wood CJ at CL and Sully J) held at [279] that the question of fitness to be tried was to be determined by application of the Presser test:

"The test for determining fitness to stand trial is whether the accused has a sufficient mental state, and intellect, to comprehend the course of the proceedings involved in the trial, so as to follow those proceedings, and so as to make a proper defence. The factors to be taken account have been accepted as being those developed in R v Presser (supra), an authority which has been consistently followed in this State and elsewhere: see for example R v Mailes, R v Zhang [2000] NSWCCA 344, R v Tier (2001) 121 A Crim R 509, and Kesavarajah v The Queen(1994) 181 CLR 230."

[143] In Rivkin, the question of unfitness to be tried arose after conviction when it was established that the appellant had a brain tumour which would have caused frontal lobe dysfunction. Again, the Court referred in some detail to the authorities discussed above, which were adopted as correctly stating the law. The additional consideration in Rivkin was the test to be applied where the question of fitness to be tried is raised after conviction. That is not an issue here. However, their Honours were also considering a question that is relevant here, namely, where a person has a "temporary condition". In that regard, their Honours said at [296]-[298]:

"So far as the present case involves a temporary condition, which was amenable to treatment, and which has since been reversed, so that no current question of fitness arises, it does differ from most, if not all, of the other cases which have attracted an application of the requirements in R vPresser.

The central question which arises, in this respect, is whether a reduction in the capacity of an accused to meet the requirements in R v Presser, but which falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects, is sufficient to constitute unfitness, and to justify appellate intervention, in accordance with the test previously mentioned.

... The test in R vPresser is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness."

[144] The Court concluded at [301] that the question of fitness to be tried related to the "essential requirements" as stated in Presser.

1. I am satisfied that Mr Feili is "capable of understanding the proceedings at the trial so as to be able to make a proper defence". It has not been suggested that he does not have the mental capacity to understand sufficiently what is going on in court, or to understand the substantial effect of any evidence given against him. If he happens to miss any aspect of the evidence that is relevant to him, it must be within the capacity of his lawyers, armed with whatever notes they are taking of the evidence and also with a daily transcript, to inform him of it. Even if it is correct to conclude that Mr Feili has a reduced capacity to meet the Presser criteria, particularly those mentioned above, that does not mean that he is unfit to be tried; he will only be unfit if he is denied that capacity: R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 at [297]-[301] per Mason P, Wood CJ at CL and Sully J.

Conclusion

1. I accept that Mr Feili may well have a reduced capacity to meet two of the criteria in Presser for being regarded as fit to be tried but I was not persuaded that he is completely denied that capacity. There are steps available to substantially overcome any shortfall in relation to those matters.

1. The accused Taleb Feili is fit to be tried.

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