Citation: R v Feili [2013] NSWSC 492
Court: Supreme Court of New South Wales
Date: 13 March 2013
Judge: R A Hulme J
Background
The accused was one of 12 defendants in a lengthy trial, already in its fifth week before the jury when the fitness question arose. His counsel raised a concern that his client was falling asleep during proceedings, and that this, combined with symptoms of depression, insomnia, and apparent day-to-day memory difficulties, was affecting his ability to follow the trial and properly instruct his lawyers.
Hulme J was satisfied the question had been raised in good faith, and the jury was stood down while the court conducted a formal inquiry under the Mental Health (Forensic Provisions) Act 1990 (NSW). Two forensic psychiatrists gave evidence: one called by the defence and one by the Crown.
At the conclusion of the inquiry, the court announced the accused was fit to stand trial, with written reasons following.
Legal Issues
- Whether the accused's depression, insomnia, and tendency to fall asleep during trial rendered him unfit to be tried under the Mental Health (Forensic Provisions) Act 1990 (NSW)
- What the minimum requirements for fitness to stand trial are, as established by R v Presser [1958] VR 45
- Whether a reduced capacity to meet the Presser criteria, as distinct from being entirely denied that capacity, is sufficient to constitute unfitness
Decision
The defence psychiatrist, Dr Allnutt, diagnosed the accused with a depressive disorder and concluded he was "probably unfit" to stand trial. Dr Allnutt's view was that the stress of the trial had aggravated the accused's symptoms, causing ruminative thought at night, poor sleep, and an inability to maintain concentration during proceedings. He noted there was also an element of voluntary disengagement, but considered the depressive disorder provided an involuntary component that, on balance, tipped toward unfitness.
The Crown's psychiatrist, Dr Westmore, reached a different conclusion. He assessed the accused as fit to be tried "if he can remain awake." Dr Westmore found no significant cognitive impairment from the depression, no organic disturbance, and no psychosis. He noted the accused's fatigue appeared genuine, but that disinterest in the outcome was also likely contributing to the drowsiness.
Hulme J applied the standard from R v Presser, which sets the minimum requirements a person must meet for a fair trial: broadly, the capacity to understand the proceedings, to understand the effect of the evidence, to instruct counsel, and to present a proper defence. Critically, drawing on R v Rivkin and Clarkson v R, the court confirmed that a reduction in capacity falling short of a complete denial of that capacity does not constitute unfitness.
The court accepted that the accused may have had a reduced capacity to meet two of the Presser criteria, but found he was not completely denied that capacity. Practical steps were available to address any shortfall: his lawyers and counsel could explain proceedings to him, remind him of what had been discussed, and use daily transcripts and notes to keep him informed of relevant evidence he may have missed.
Orders Made
• The accused Taleb Feili is fit to be tried.
Key Takeaways
- The Presser minimum requirements govern fitness to stand trial: an accused must be able to understand the proceedings, appreciate the effect of the evidence, instruct counsel, and present a proper defence.
- A reduced capacity to meet the Presser criteria does not constitute unfitness; the accused must be entirely denied that capacity before the threshold is crossed, as confirmed by the NSW Court of Criminal Appeal in R v Rivkin.
- Practical support measures available during trial, such as counsel explaining proceedings, reminders of prior discussions, and use of daily transcripts, are relevant to whether any deficiency in capacity is truly irremediable.
- Depression and insomnia, even where clinically diagnosed and aggravated by the stress of a long trial, do not automatically render an accused unfit to stand trial.
- Where conflicting psychiatric opinions are put before the court on a fitness inquiry, the court must weigh them against the legal standard rather than simply accepting the more conservative clinical view.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 10
Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230
- R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
- Clarkson v R [2007] NSWCCA 70