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 1This 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 2Last 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. 3The 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. 4Section 10 of the Mental Health (Forensic Provisions) Act 1990 (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. 5At 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.