Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Feili v R [2015] NSWCCA 43 Hearing dates: 16 February 2015 Decision date: 26 March 2015 Before: Hoeben CJ at CL at [1]; Johnson J at [1]; Davies J at [1] Decision: Appeal against conviction dismissed Catchwords: CRIMINAL LAW - appeal against conviction - Appellant convicted of riot - Appellant asleep for parts of trial - whether trial judge erred in finding Appellant fit to be tried - relevant principles - capacity of accused to understand evidence at trial and nature and course of criminal proceedings - ameliorative steps available -legal representatives able to explain proceedings and important evidence - no error demonstrated in trial judge's approach - appeal dismissed Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Clarkson v R [2007] NSWCCA 70; 171 A Crim R 1 Ebataringa and Anor v Deland and Ors [1998] HCA 62; 194 CLR 444 House v The King [1936] HCA 40; 55 CLR 499 Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 Kunnath v The State [1993] 4 All ER 30 Ngatayi v The Queen [1980] HCA 18; 147 CLR 1 R v Ali; R v Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871 R v Feili [2013] NSWSC 492 R v Lee Kun [1916] 1 KB 337 R v Presser [1958] VR 45 R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 Texts Cited: --- Category: Principal judgment Parties: Taleb Feili (Appellant) Regina (Respondent) Representation: Counsel: Mr J Trevallion (Appellant) Mr G Farmer SC (Respondent) Solicitors: Archbold Legal (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2011/146355 Publication restriction: --- Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law - Crime Citation: R v Feili [2013] NSWSC 492 (finding of fitness to be tried) Date of Decision: 13 March 2013 Before: R A Hulme J File Number(s): 2011/146355 Judgment 1. THE COURT: The Appellant, Taleb Feili, appeals against his conviction on 17 April 2013 for an offence of riot under s.93B Crimes Act 1900 following a trial before RA Hulme J and a jury in the Supreme Court of New South Wales. 2. The Appellant was sentenced to a term of imprisonment comprising a non-parole period of one year and 10 months commencing on 10 August 2012 and expiring on 9 June 2014, with a balance of term of one year and two months commencing on 10 June 2014 and expiring on 9 August 2015. The sentencing Judge directed that the Appellant be released on parole upon the expiration of the non-parole period on 9 June 2014. 3. The appeal to this Court challenges the Appellant's conviction. No ground of appeal is directed to sentence. Grounds of Appeal 1. The grounds of appeal relate to an issue which arose during the trial concerning the fitness of the Appellant to be tried. The Appellant relies upon the following grounds of appeal: 1. Ground 1 - the learned trial Judge erred in finding the Appellant was fit to be tried, or in the alternative; 2. Ground 2 - the learned trial Judge erred in failing to take into account a relevant consideration, namely the fact that the Appellant had been asleep and unable to participate in his trial for a period of up to nine weeks before his medication had responded reasonably; or 3. Ground 3 - the learned trial Judge erred in taking an irrelevant consideration into account, namely that ameliorative measures could be put into place to manage the symptoms of sleeplessness for the duration of the trial after the Appellant had been asleep throughout the first five weeks of his trial and this was causally related to his mental condition. 1. As will be seen, substantial issue was taken by the Crown with respect to factual matters asserted as parts of Grounds 2 and 3. Factual Background 1. For the purpose of determining the present appeal, brief reference only is required to the factual matters giving rise to the trial of the Appellant. 2. The Appellant stood trial with a number of other persons for alleged offences committed at the Villawood Immigration Detention Centre on 20 April 2011. All of the accused persons were detainees at the Centre as at 20 April 2011. Charges against the various accused persons alleged riot contrary to s.93B Crimes Act 1900 and affray contrary to s.93C of that Act. 3. After almost two weeks of pretrial hearings, the trial itself commenced with the empanelment of a jury on 11 February 2013. The jury retired on 11 April 2013 and returned with their verdicts on 17 April 2013. The Appellant was convicted of riot, and it was not necessary for the jury to consider a verdict on the alternative count of affray. 4. On 28 June 2013, RA Hulme J sentenced each of the five persons convicted by the jury, including the Appellant: R v Ali; R v Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871. 5. The nature of the offence for which the Appellant was convicted may be gleaned from the remarks on sentence at [13]-[20]: "13 Mr Feili was not one of the detainees who went up onto the roof of the Macquarie Building but he was one of the most active of the participants in the riot on the ground. In the early evening, he approached one Serco officer, clicking his fingers and threatening her with his arms in the air. He was ranting and swearing in English and in his native tongue. He was heard to say, 'You can help this stop. You can stop this now'. He came quite close to the officer and grabbed at her. She said, understandably, that she felt 'very frightened, very scared' (T295-296). 14 It was submitted on Mr Feili's behalf that he was trying to assist Serco officers by drawing their attention to an apparent suicide attempt being made by one of the detainees on the roof. If that was so, it remains the case that the manner in which he did so was perceived as being more provocative than helpful. 15 Sometime later, Mr Feili approached a male officer and said, in what was described as a loud and forceful manner, 'I need to speak to someone high up from Immigration now and if you do that I can stop this now' (T514-515). At another time he approached another female officer and told her that he could 'stop it' (T861). 16 Mr Feili was one of the oldest of the detainees in the compound and these activities suggest that he was a person of some influence. However, he did nothing to try and prevent the subsequent violence; in fact, he played a significant role which encouraged its escalation. 17 Mr Feili took up fire extinguishers and discharged them before throwing them in the direction of Serco staff. He involved himself in the movement of wheelie bins and a timber table and chairs to the fire on the soccer field. He was also involved in the dismantling of soccer goal posts and was seen to throw one part in a spear-like action towards staff. Finally, just before the staff evacuation, Mr Feili held a fire extinguisher above his head and threw it through a window of the office behind which the staff were cowering. 18 It was submitted for Mr Feili that the evidence does not enable a conclusion that he was aware that someone intended to set the office alight. I accept that. But what he did facilitated the continuance and escalation of the destructive conduct that was going on around him. 19 The Crown submitted that Mr Feili was involved in numerous acts of violence towards both people and property; he encouraged others, at least implicitly, to become involved; and he was directly threatening to staff. The evidence in the trial clearly supports those propositions. It also supports the submission that 'he was central to the violent activities on the ground'. 20 It was submitted for Mr Feili that he had consumed alcohol and that 'his judgment and inhibitions may have been clouded by that factor'. The evidence on this issue was not entirely persuasive but I am prepared to accept on balance that he probably was. The relevance of this is not to reduce his moral culpability but it does support a finding that his actions were out of character. Such a finding does not distinguish his case from any of the other offenders; all of them did things that were not typical of their normal behaviour." 1. His Honour addressed the seriousness of the Appellant's offence at [32]: "Of those of the offenders to be sentenced for riot, I assess the offences of Feili and Parhizkar as being the most serious because of the significant roles they played in perpetrating violent acts and in influencing the involvement of other detainees." An Issue of Fitness Arises at Trial Concerning the Appellant 1. Pretrial proceedings commenced with respect to 12 accused persons, including the Appellant, on 29 January 2013 and the trial commenced before a jury on 11 February 2013. 2. On 7 March 2013, counsel for the Appellant raised a question as to the fitness of his client to be tried. The basis upon which it was thought that the Appellant was not fit to be tried was, in the words of the trial Judge, "quite unusual; he is sleeping at times during the trial": R v Feili [2013] NSWSC 492 at [3]. 3. In accordance with s.10 Mental Health (Forensic Provisions) Act 1990, the trial Judge being satisfied that the question of fitness had been raised in good faith after arraignment, his Honour proceeded to conduct an inquiry to determine whether the Appellant was unfit to be tried. The jury was sent away whilst that inquiry proceeded. 4. Dr Stephen Allnutt, forensic psychiatrist, was called on 7 March 2013 to give evidence at the fitness inquiry on the Appellant's behalf. He had seen the Appellant on 22 January 2013 and had 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 the Appellant again on 28 February 2013, he came to the view that "on balance the reasonable position … to take is that he is probably unfit to stand trial" (T1051.22). 5. The Crown engaged Dr Bruce Westmore, forensic psychiatrist, to see the Appellant at the Villawood Immigration Detention Centre on 9 March 2013 and a report dated 11 March 2013 was prepared by Dr Westmore. Dr Westmore concluded that the Appellant was fit to be tried and gave evidence to that effect at the fitness inquiry on 11 March 2013. 6. Dr Allnutt was recalled to give further evidence on 12 March 2013 having had an opportunity to consider the report and evidence of Dr Westmore. 7. On 12 March 2013, the trial Judge found the Appellant fit to be tried with reasons for that conclusion to be given at a later time (T2087.3). 8. On 13 March 2013, his Honour gave reasons for the finding that the Appellant was fit to be tried: R v Feili. 9. The trial of the Appellant and others continued after the finding of fitness, with the jury returning verdicts on 17 April 2013. The Judgment Concerning the Appellant's Fitness to be Tried 1. Before moving to the grounds of appeal, it is appropriate to refer in some detail to his Honour's judgment of 13 March 2013 on the fitness issue. 2. The trial Judge referred to pertinent parts of the evidence of Dr Allnutt and Dr Westmore: R v Feili at [6]-[20]. 3. His Honour set out at [6] evidence from Dr Allnutt which included the following extract: "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. The trial Judge referred to further evidence of Dr Allnutt at [9]: "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. His Honour turned to the evidence of Dr Westmore at [12]-[14]: "12 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. 13 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. 14 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. The Court then addressed the evidence of Dr Allnutt given after Dr Westmore had testified. In the course of this, his Honour said at [20]: "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." 1. His Honour then made a number of significant findings at [21]-[27]: "21 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. 22 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. 23 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. 24 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. 25 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. 26 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. 27 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. His Honour then turned, at [28]-[31], to consider, in the practical context of this case, the relevant principles concerning fitness to be tried, including R v Presser [1958] VR 45; Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230; R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 and Clarkson v R [2007] NSWCCA 70; 171 A Crim R 1: "28 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. 29 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 ... 30 Dr Allnutt confirmed that these were the aspects that gave rise to his opinion as to unfitness (see above at [20]). 31 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 v Presser. 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 v Presser 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. The trial Judge made a further important finding at [32]: "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." 1. His Honour concluded the judgment in the following way at [33]-[34]: "33 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. 34 The accused Taleb Feili is fit to be tried." The Grounds of Appeal 1. It is convenient to consider the three grounds of appeal together. The first ground of appeal seeks to challenge the ultimate finding that the Appellant was fit to be tried, whilst the second and third grounds assert, in the alternative to the first ground, errors on the way to the ultimate finding. Submissions of the Appellant 1. It was submitted for the Appellant that a miscarriage of justice had occurred by reason of the trial Judge's findings and conclusion on the fitness inquiry. It was submitted that the Appellant had missed a period of up to seven weeks of his trial. Emphasis was placed upon the evidence of Dr Allnutt. 2. Counsel submitted that there was objective evidence of the Appellant's illness and that his ability to participate in his trial and to instruct counsel as to his evidence was impeded. It was asserted that the Appellant had missed his opportunity to participate in some five weeks of the trial. Rather than dealing with this situation, it was submitted that the trial Judge turned his mind to steps which could be taken to overcome the problem of the Appellant falling asleep in court. Counsel submitted that this was the wrong question to be asked. 3. Reference was made to decisions of courts in Australia and the United Kingdom concerning the importance of an accused person following proceedings during a criminal trial: R v Lee Kun [1916] 1 KB 337; Kunnath v The State [1993] 4 All ER 30 and Ebataringa and Anor v Deland and Ors [1998] HCA 62; 194 CLR 444. 4. It was submitted for the Appellant that the trial Judge had erred in finding the Appellant was fit to be tried on the evidence before him. It was submitted further that the trial did not conform with contemporary standards in New South Wales and comparable standards in other Australian jurisdictions. Submissions for the Crown 1. The Crown submitted that the conclusion reached by the trial Judge was open on the evidence and that no error had been demonstrated in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499. 2. With respect to the matters contained in the second and third grounds, the Crown submitted that there was no evidence to support the assertions made regarding the period of time that the Appellant had been asleep. In any event, the Crown submitted that there was no evidence that during the periods that the Appellant might have been asleep, he was deprived of a capacity to participate in his trial. 3. The Crown submitted that the trial Judge had applied relevant principles and had reached a conclusion that was open on the evidence. Further, it was submitted that an examination of the record of the trial as a whole did not disclose any impediment to the conduct of the trial on behalf of the Appellant. 4. It was submitted for the Crown that no further application was made by counsel for the Appellant nor was any concern expressed during the balance of the trial. The Crown noted that it was not asserted in this appeal, nor before the trial Judge, that any part of the Appellant's case was not properly put in accordance with his instructions. Nor was it asserted that the Appellant was denied any opportunity to challenge any "crucial" evidence that he had "missed" either before or after the fitness inquiry. 5. The Crown submitted that there had been no failure to comply with relevant principles and that the Appellant had received a fair trial. Determination 1. Some undisputed features of the trial should be noted before moving to determine the grounds of appeal. 2. Firstly, counsel for the Appellant had cross-examined a number of witnesses who gave evidence at the trial up to 7 March 2013 when the issue as to fitness was raised. No application was made on behalf of the Appellant that any witness should be recalled for further cross-examination because of any suggested difficulty arising from the Appellant's condition prior to 7 March 2013. 3. Secondly, the trial proceeded on and after 12 March 2013, and no issue was raised with the trial Judge asserting difficulties experienced by the Appellant or his legal representatives in the conduct of the trial. 4. Thirdly, counsel for the Appellant addressed the jury and the trial Judge summed up in a manner which identified the case of each accused person, including the Appellant. 5. The issue of fitness having arisen during the trial, the trial Judge complied with the requirements of ss.9-11 Mental Health (Forensic Provisions) Act 1990. The inquiry was conducted in accordance with s.12 of that Act. 6. The question of the Appellant's unfitness to be tried was determined on the balance of probabilities: s.6 Mental Health (Forensic Provisions) Act 1990. The determination on the question of fitness included the principles of law applied by the Court and the findings of fact on which his Honour relied: s.11(2) Mental Health (Forensic Provisions) Act 1990. 7. The Appellant having been found fit to be tried, the proceedings brought against him continued in accordance with the appropriate criminal procedures with the trial of the Appellant resuming in the presence of the jury: s.13 Mental Health (Forensic Provisions) Act 1990. 8. The Appellant having been found fit to be tried on 12 March 2013, it was presumed that he continued to be fit to be tried unless and until the contrary was established on the balance of probabilities: s.15 Mental Health (Forensic Provisions) Act 1990. 9. The principle underlying an inquiry into fitness is the right of an accused person to a fair trial: R v Presser at 48; Kesavarajah v The Queen at 245. 10. It has been emphasised by courts that the Presser test needs to be applied "in a reasonable and commonsense fashion": R v Presser at 48; Ngatayi v The Queen [1980] HCA 18; 147 CLR 1 at 8; Kesavarajah v The Queen at 244; Clarkson v R at 26-27 [132]. The trial Judge's approach in determining the Appellant's fitness accorded with this approach. 11. Despite an (understandable) reservation that a person can be unfit on account of the person sleeping at times during the trial (R v Feili at [27]), his Honour proceeded to determine the fitness issue on the merits by application of the relevant principles to the facts of the case. 12. In a careful judgment, his Honour made a number of key findings: 1. there was nothing before the Court that would indicate the Appellant had been asleep when matters of importance to his case were the subject matter: R v Feili at [23] (extracted at [27] above); 2. even if that was the case, there was nothing to indicate that it had not been possible for the Appellant to be kept apprised by his lawyers of what had been said of relevance to him, nor had any attempt been made to place evidence before the Court that the Appellant had missed something that was "crucial" to the case against him or his defence: R v Feili at [23] (extracted at [27] above); 3. ameliorative measures were available which constituted an appropriate response to managing the symptoms of sleeplessness for the duration of the trial: R v Feili at [24], [28] (extracted at [27], [28] above); 4. the Appellant was capable of understanding the proceedings so as to be able to make a proper defence - if he happened to miss any aspect of the evidence relevant to him, his lawyers were able to inform him of it: R v Feili at [32] (extracted at [29] above). 1. His Honour's approach represented a practical, reasonable and commonsense approach to the issues posed at the fitness inquiry. Practical aspects of the trial included the fact that the Appellant required an interpreter and the ability of his legal representatives to assist the Appellant concerning evidence which may affect him. 2. It was for the trial Judge to determine the issue of fitness on the balance of probabilities by application of relevant principles to the evidence adduced at the inquiry. His Honour applied the relevant principles to the evidence and reached a conclusion that was open on the evidence. Although it is sufficient to express this conclusion for the purpose of determining that error in accordance with House v The King at 504-505 is not demonstrated, we record our agreement with the conclusion reached by the trial Judge on the fitness inquiry. 3. We reject the first ground of appeal. 4. The second ground of appeal, expressed in the alternative to the first ground, asserts error in failing to take into account a relevant consideration, namely the fact that the Appellant had been asleep and unable to participate in his trial for a period of up to nine weeks before his medication had responded reasonably. 5. It is sufficient to observe that the factual assertion built into the second ground is not supported by the evidence: see his Honour's finding in R v Feili at [23] (extracted at [27] above). His Honour had regard to the evidence concerning the Appellant's sleeping and the psychiatric evidence of Dr Allnutt and Dr Westmore with respect to this question. 6. We reject the second ground of appeal. 7. The third ground of appeal, again expressed to be in the alternative to the first ground, contends that the trial Judge erred in taking into account an irrelevant consideration, namely that ameliorative measures could be put into place to manage the symptoms of sleeplessness for the duration of the trial after the Appellant had been asleep throughout the first five weeks of his trial and this was causally related to his mental condition. 8. The difficulty with this ground, as with Ground 2, is the factual assertion built into the ground which is simply not supported by the evidence. It was appropriate that his Honour have regard to the evidence of Dr Allnutt and Dr Westmore on this issue in determining the question of fitness. It was not demonstrated that the Appellant had been asleep throughout the first five weeks of the trial. 9. Identification of ameliorative measures which could be taken during the balance of the trial involved a practical assessment of the evidence of the two forensic psychiatrists. It was entirely open to the trial Judge to approach this issue on the inquiry in the way in which he did. This was consistent with an approach to fitness "in a reasonable and commonsense fashion" mentioned in the authorities (see [50] above). 10. Moreover, the fact that there was no invitation to revisit any aspect of the evidence prior to 7 March 2013, nor any issue as to fitness raised after 12 March 2013 fortifies a conclusion that the approach adopted by the trial Judge was effective in the circumstances of this case (see [42]-[44] above). As mentioned at [48] above, after the finding of fitness, it was presumed that the Appellant continued to be fit to be tried unless and until the contrary was established on the balance of probabilities. No issue of fitness was raised again after 12 March 2013. 11. We reject the third ground of appeal. Conclusion 1. The Appellant has not demonstrated factual or legal error with respect to the trial Judge's finding of fitness to be tried. Nor does the conduct of the trial, both before and after the issue of fitness was determined, indicate any error. 2. The Appellant received a fair trial according to law. No miscarriage of justice has been demonstrated for the purpose of s.6(1) Criminal Appeal Act 1912. 3. The appeal against conviction is dismissed. ********** Amendments 26 March 2015 - Cover sheet amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2015