Feili v R

1. [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. [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. [3]

   The appeal to this Court challenges the Appellant’s conviction. No ground of appeal is directed to sentence.

Grounds of Appeal

1. [4]

   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:

2. [5]

   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. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   The nature of the offence for which the Appellant was convicted may be gleaned from the remarks on sentence at [13]-[20]:

6. [11]

   His Honour addressed the seriousness of the Appellant’s offence at [32]:

An Issue of Fitness Arises at Trial Concerning the Appellant

1. [12]

   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. [13]

   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. [14]

   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. [15]

   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. [16]

   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. [17]

   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. [18]

   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. [19]

   On 13 March 2013, his Honour gave reasons for the finding that the Appellant was fit to be tried: R v Feili.

9. [20]

   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. [21]

   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. [22]

   The trial Judge referred to pertinent parts of the evidence of Dr Allnutt and Dr Westmore: R v Feili at [6]-[20].

3. [23]

   His Honour set out at [6] evidence from Dr Allnutt which included the following extract:

4. [24]

   The trial Judge referred to further evidence of Dr Allnutt at [9]:

5. [25]

   His Honour turned to the evidence of Dr Westmore at [12]-[14]:

6. [26]

   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]:

7. [27]

   His Honour then made a number of significant findings at [21]-[27]:

8. [28]

   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:

9. [29]

   The trial Judge made a further important finding at [32]:

10. [30]

    His Honour concluded the judgment in the following way at [33]-[34]:

The Grounds of Appeal

1. [31]

   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.

2. [32]

   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.

3. [33]

   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.

4. [34]

   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.

5. [35]

   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.

6. [36]

   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.

7. [37]

   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.

8. [38]

   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.

9. [39]

   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.

10. [40]

    The Crown submitted that there had been no failure to comply with relevant principles and that the Appellant had received a fair trial.

11. [41]

    Some undisputed features of the trial should be noted before moving to determine the grounds of appeal.

12. [42]

    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.

13. [43]

    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.

14. [44]

    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.

15. [45]

    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.

16. [46]

    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.

17. [47]

    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.

18. [48]

    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.

19. [49]

    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.

20. [50]

    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.

21. [51]

    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.

22. [52]

    In a careful judgment, his Honour made a number of key findings:

23. [53]

    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.

24. [54]

    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.

25. [55]

    We reject the first ground of appeal.

26. [56]

    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.

27. [57]

    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.

28. [58]

    We reject the second ground of appeal.

29. [59]

    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.

30. [60]

    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.

31. [61]

    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).

32. [62]

    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.

33. [63]

    We reject the third ground of appeal.

Conclusion

1. [64]

   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. [65]

   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. [66]

   The appeal against conviction is dismissed.