Citation: ROBINSON, Clifford Mark v R [2008] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 26 June 2008
Judge(s): Spigelman CJ, Hulme J, Latham J
Background
The appellant was convicted in the District Court of offences arising from an alleged criminal conspiracy. The trial concluded on 21 December 2006 before Tupman DCJ. The appellant had no instructing solicitor present throughout the trial; counsel dealt with him directly.
Following conviction, expert psychiatric evidence was obtained for the appeal. Dr Rowe expressed the firm opinion that the appellant had been unfit for trial. Dr Nielssen, a second expert, acknowledged a possibility of unfitness but could not resolve the question without information about the quality of the instructions the appellant had actually given to his legal representative during the proceedings.
The critical issue was whether the appellant's cognitive deficits meant he may not have been fit to stand trial in late 2006, and whether the failure to investigate that question at first instance warranted intervention on appeal.
Legal Issues
- Whether the appellant was unfit for trial within the meaning established by R v Presser (1958) VR 45, which requires an accused to be able to understand the proceedings and give adequate instructions to counsel
- Whether the question of unfitness, not raised at trial, could nonetheless ground a successful conviction appeal
- Whether the evidence before the Court of Criminal Appeal established a sufficient possibility of unfitness to warrant quashing the conviction
Decision
The Court noted that the appellant had various markers of functioning, including completing the Higher School Certificate, holding a driver's licence, maintaining employment, and demonstrating in intercepted telephone calls and a police interview that he could understand and respond strategically to circumstances. These factors weighed against a finding of unfitness.
However, the absence of an instructing solicitor during the trial was a significant concern. Counsel had to manage the demands of the proceedings directly, without a solicitor to monitor the quality of instructions received from the appellant. The Court observed that a person with cognitive deficits may appear to function relatively normally while still failing to meaningfully participate in their trial.
Dr Nielssen's evidence was pivotal. Although he leaned toward fitness, he expressly acknowledged a significant possibility of unfitness, grounded in concern about the quality and realism of the instructions the appellant would have been capable of giving. Neither the expert nor the Court had access to information from trial counsel about how those instructions actually proceeded.
Latham J, with whom Spigelman CJ and Hulme J agreed, concluded that the Court could not be satisfied that a reasonable tribunal must have found the appellant fit. The applicable test was not whether the appellant was probably unfit, but whether a tribunal acting reasonably could have taken the view that he was. That possibility could not be excluded. Ground 2 of the appeal therefore succeeded, making it unnecessary to address Ground 1.
Orders Made
- Appeal allowed
- Conviction quashed and new trial ordered
Key Takeaways
- The Court of Criminal Appeal confirmed that a fitness for trial issue not raised at first instance can still ground a successful conviction appeal, provided a sufficient possibility of unfitness is established on the evidence available to the appellate court.
- The applicable test is not whether the accused was probably unfit, but whether a reasonable tribunal could have found them unfit. A possibility meeting that standard is sufficient to warrant intervention.
- Expert evidence that acknowledges a "significant possibility" of unfitness, without definitively concluding either way, may be enough to satisfy that threshold, particularly where the court lacks access to information that might have resolved the doubt.
- The absence of an instructing solicitor during trial was treated as a material factor, as it reduced the opportunity to monitor whether the accused was giving adequate and realistic instructions to counsel throughout the proceedings.
- A capacity to appear to function normally, including holding employment and participating in ordinary conversations, does not foreclose a finding of unfitness where underlying cognitive deficits may have affected the quality of participation in legal proceedings.
Legislation and Cases Referenced
Legislation:
- Mental Health (Criminal Proceedings) Act 1990 (NSW)
Cases:
- R v Presser (1958) VR 45
- Eastman v The Queen (2000) 203 CLR 1
- Kesavarajah v The Queen (1994) 181 CLR 230
- Dyers v R (2002) 210 CLR 285
- R v R.T.I. (2003) 58 NSWLR 438; [2003] NSWCCA 283
- R v Rivkin (2004) 59 NSWLR 284
- R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155
- R v Henley [2005] NSWCCA 126
- Kirkwood v R [2006] NSWCCA 181
- Jones v Dunkel (1959) 101 CLR 298