Haddad v R [2020] NSWCCA 44 | Case summary

Mr Haddad's application to the trial judge, and his Honour's reasons for concluding that the question of unfitness was not raised in good faith

The question of a person's unfitness to be tried may be raised by any party to the proceedings, or by the court, at any time during the course of the hearing and on more than one occasion: MHFP Act, ss 5, 7(1) and (2).
On 5 April 2018, after a fitness inquiry, Traill DCJ found the accused was unfit to be tried but likely to become fit within 12 months. At a further fitness inquiry in February 2019 her Honour found on 26 February 2019 that, applying the test in R v Presser [1958] VR 45, Mr Haddad was fit to be tried.
The question of Mr Haddad's unfitness was raised again on 9 March 2020 immediately before he was to be arraigned before a jury panel on the charge of conspiring to import a commercial quantity of a border controlled precursor substance, namely Safrole, contrary to the Criminal Code (Cth), ss 11.5 and 307.11(1). Accordingly, s 8(1) of the Act required that the Court "determine whether an inquiry should be conducted before the hearing of the proceedings in respect of [that] offence."
The reasoning process by which his Honour concluded that the question as to Mr Haddad's unfitness to be tried was not raised in good faith had several strands. First, his Honour observed that Dr Allnutt's report, as one might anticipate, was very largely based on what Mr Haddad had told him in relation to his current position and state of mental health, although he also had the benefit of a consultation with Mr Haddad's parents. More specifically, that report proceeds on the understanding that Mr Haddad had said he could not represent himself in court at all and that his mental state had deteriorated after he became aware that he no longer had legal representation, and was told by the court that he would have to represent himself (Reasons p 5).
Secondly, his Honour noted that in the period since Mr Haddad had lost his legal representation he had not been admitted to any psychiatric hospital, and had not seen any mental health professional (other than Dr Allnutt, and then for the purpose only of obtaining an opinion as to his fitness to be tried) (Reasons p 5). Thirdly, his Honour twice recorded that Mr Haddad is a person who has had considerable experience of the psychiatric profession, and in particular with respect to the issues which might be relevant to the consideration of whether he is fit to be tried (Reasons pp 5, 10). Fourthly, Dr Allnutt's conclusion that Mr Haddad was "unfit to stand trial for the short term to medium term" was based on his "emotional state at the time I saw him", which caused Dr Allnutt to believe that he would not "have the capacity to follow proceedings, make a defence [or] communicate with counsel due to his emotionality which would interfere with his cognitive ability to apply his mind to these tasks" (Reasons, pp 6-7).
Fifthly, his Honour considered that, taking into account Mr Haddad's involvement in a number of appearances and applications in the District Court, as well as in the committal proceedings, "one would anticipate that he has no difficulty in understanding the Crown case or his defence". His Honour then found that Mr Haddad "fully understands the nature of the Crown case and his defence" (Reasons p 9). Sixthly, the trial judge found that Mr Haddad was "pretending that for various reasons he is unable to conduct his own trial" notwithstanding that he had the experience of many days in court in relation to the conduct of the committal proceedings and in relation to the conduct of the two pre-trial applications, as well as previous applications in relation to fitness (Reasons p 11). Seventhly, Dr Allnutt's report indicated that Mr Haddad would be fit for trial were it not for the fact that he was no longer represented, a position which the trial judge found the applicant had "deliberately created in order to once again cause this trial to go off" (Reasons p 10).

Whether error in finding question of unfitness not raised in good faith

Two arguments were made.
First, it was said, in reliance on the decisions in R v Tier [2001] NSWCCA 53; (2001) 121 A Crim R 509 and R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155, that where on the evidence there is a "real and substantial" or "genuine" concern as to an accused's fitness to stand trial, "good faith will be presumed", per Kirby J in Tier at [71] (Grove J agreeing at [8] and Sheller JA observing to the same effect at [4], [6]), or that it will be difficult for a court to make a finding that the question has been raised other than in good faith, per Wood CJ at CL in Mailes at [227] (Spigelman CJ agreeing at [1] and Greg James J agreeing at [230]).
It was submitted that, in considering whether he was satisfied that the unfitness question was raised in good faith, the trial judge took into account a wholly irrelevant matter, namely his Honour's findings that Mr Haddad's motivation for raising the question of his fitness was that he wanted to "cause his trial to go off" and that he had deliberately caused his lack of representation.
It was also said that if, on the face of the evidence, there was a real "possibility" that Mr Haddad was unfit to be tried, the prohibition in s 10(2) was not engaged and concerns about Mr Haddad's motives for raising that question were beside the point, and could not detract from the need to proceed with such an inquiry. Thus, counsel submitted: ... if the trial is likely to be unfair, it ought not to proceed regardless of whether there is, to use your Honour's expression, engineering or not. That, of course, I have suggested, is the principal argument I make. In those circumstances, once the possibility is raised, then the possibility of an unfair trial is raised, and therefore the inquiry must be conducted (tcpt 10/03/20, pp 14-15).
The appellant's second argument was that the trial judge's conclusion that the question of unfitness was not raised in good faith was not open on the evidence. It was submitted that there was nothing in Dr Allnutt's report to suggest exaggeration or malingering, and to the extent that there was reliance on the appellant's self-reporting, Dr Allnutt found that reporting plausible. The report was also said to include observations of Dr Allnutt based on or involving his expertise as a psychiatrist. Finally, it was pointed out that Dr Allnutt also had the benefit of interviewing Mr Haddad's parents, who were recorded as describing him as "very emotional, crying all the time".
In considering these arguments, it is convenient to start with the terms of Dr Allnutt's opinion, and his reasoning supporting it. That opinion followed an earlier report of 13 February 2019, which was summarised by Traill DCJ in her Honour's judgment of 26 February 2019 (in turn referred to in his Honour's reasons for rejecting the 26 February 2020 motion to vacate) as follows: Dr Allnutt was also of the opinion that the accused has the capacity to understand the nature of the charges, he has the capacity to plead to the charge, he understands the meaning of the terms guilty and not guilty and the consequences of those findings, he has capacity to make his defence by giving instructions and letting his counsel know what it is.
In Dr Allnutt's 5 March 2020 report (at p 5), under the heading "Re: Fitness to Stand Trial", he relevantly said of Mr Haddad: He appears to have been relatively stable in his mental state since I last saw him, until 3 weeks ago. Since then he provides a history consistent with a precipitous decline in his mental state after he lost legal representation due to [his] anxious response to having to represent himself. His mental conditions would have predisposed him to this response. In his current emotional state, he would be unable to meaningfully interact with the court if he self-represented. I do not believe he would be able to apply himself to the legal process and I do not believe that his self-representation would be helpful for the court or himself. His emotionality would interfere with his cognitive ability to apply his mind [to] tasks of examination and cross examination of witnesses, preparation of his case, and coherently communicating with court officers including the judge. There is also a risk of negative perception if there was a jury which could be prejudicial. When I saw him on this occasion, and considering [his] emotional state at the time I saw him, I would regard him as unfit to stand trial for the short term to medium term because I did not believe he would have the capacity to follow proceedings, make a defence of communicate with counsel due to his emotionality which would interfere with his cognitive ability to apply his mind to these tasks. I am of the view however that this emotionality is likely to be transient and will likely diminish if legal representation is allowed. His mental state is then likely to stabilise once more to the extent that is was prior to 3 weeks ago. (sic)
Dr Allnutt described Mr Haddad's "emotional state" when he saw him as follows (at pp 4-5): Your client was highly distressed and [in an] emotional state and was tearful throughout the interview. He was distracted by emotional and anxious thoughts and it was difficult to obtain a coherent account from him. His affect was extreme. He endorsed depressive and anxiety symptoms as well as auditory hallucinations and persecutory beliefs. I continue to believe these are of a delusional intensity and in my opinion, he has had an episode of psychosis. He had difficulty concentrating and staying focused in the interview, and manifested questionable insight and judgment.
Earlier again in the report (at p 2), Dr Allnutt recorded the effect of other statements made by the appellant, including that he "could not represent himself in court at all and it appears his mental state deteriorated after this"; "…until he lost his legal representation, he felt more settled and his mental state improved somewhat"; and that "he particularly lacked confidence to represent himself in court".
The appellant's first argument mischaracterises the trial judge's reasoning, which focused on whether the question as to his unfitness to be tried was raised in good faith. His Honour's finding was that the appellant had sought to "cause this trial to go off", including by "pretending that for various reasons he is unable to conduct his own trial" (Reasons p 11). That finding included "pretending" to Dr Allnutt, and for that reason involved treating Dr Allnutt's opinion as having little or no weight because it was based on a false emotional state and presentation. It was accordingly incapable of raising a "real and substantial" concern as to Mr Haddad's unfitness to stand trial. That finding also justified his Honour's conclusion that the question of unfitness was not raised in good faith, which meant that he could not be satisfied in the terms required by s 10(2).
In these respects, the present case is quite unlike Tier, where the trial judge had "recognised the possibility that Mr Tier may be unfit" and there was also "a substantial body of evidence that Mr Tier was, or may be, unfit to be tried" (per Kirby J at [84], [85]). Rather, the present case is more like that described by Spigelman CJ in Mailes at [15], the trial judge having found in effect that Mr Haddad had acted "intentionally to derail the proceedings", with the consequence that it could not "appear" to the Court that the question of unfitness was raised in good faith.
The appellant's second argument was that the trial judge's finding as to the absence of good faith was not reasonably open or involved error (tcpt 10/03/20, p 7). The appeal to this Court under s 5F is by way of rehearing in which error must be established. Furthermore, when assessing whether the finding involved error the Court must have regard to any advantages the trial judge had in assessing the evidentiary material relevant to the facts in issue (see generally R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286 at [68]-[73] per Campbell JA, Howie and Rothman JJ agreeing). Here that material included the appellant's participation in the various applications and hearings before the trial judge, including the application to vacate the hearing date made and argued by the appellant in person on 26 February 2020.
That hearing took place during the three week period in which, according to Dr Allnutt's report, there was a "precipitous decline in [the appellant's] mental state after he lost legal representation due to [his] anxious response to having to represent himself" (p 5). The transcript of the 26 February 2020 hearing (tcpt 26/02/20, pp 1-26) contains many exchanges between Mr Haddad, the Court, or counsel for the Crown, in the course of argument and during cross-examination. That transcript does not reveal Mr Haddad as very emotional, crying at any time, unable to interact meaningfully with the Court, unable to apply his mind to the task of understanding and answering questions, or more generally as someone whose "emotionality" was interfering with his "cognitive ability to his apply his mind" to tasks such as communicating with counsel or the Court. On the basis of that material, and his own observations, made both before and after the appellant's early March consultation with Dr Allnutt, the trial judge was well placed to conclude that Mr Haddad's ongoing emotional state was not as recorded by Dr Allnutt in his report.
It is true, as counsel for Mr Haddad pointed out, that the trial judge's reasons do not in terms say that Mr Haddad's presentation and conduct during that hearing was inconsistent with the picture of his emotional state as must have been presented and reported to Dr Allnutt a few days earlier. However, the trial judge's effectively ex tempore reasons are not to be "picked over" too closely (as to which see Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P; and Mega-Top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 at [24] per Leeming JA, Gleeson JA and Emmett AJA agreeing). The trial judge made reference to the number of "appearances and applications" in which Mr Haddad had been involved and made findings that he had a very good understanding of court processes, understood the nature of the Crown case and his defence, and was familiar with the issues that might cause a psychiatrist to find that he is unfit for trial. Those findings, and the finding that he was "pretending that for various reasons he is unable to conduct his trial", were drawn from the trial judge's own observations and assessment of the appellant over a long period, and most recently and relevantly during the hearing of 26 February 2020.
Although counsel for the appellant submitted that his Honour was not entitled to have regard to anything other than the report of Dr Allnutt when determining whether the question of unfitness was raised in good faith, that is to deny the Court the opportunity to consider the issue in its proper context, and to restrict it from having regard to its own record. Section 10(2) would be entirely idle if the Court were prevented from considering matters other than those raised by the person seeking to have a fitness inquiry held.
It was also said that, separately from his reliance on Mr Haddad's presentation and reporting, Dr Allnutt's opinion was based at least in part on his assessment that Mr Haddad's recent history and presentation was plausible, and his having the benefit of an interview with Mr Haddad's parents. Furthermore, it was suggested that if the trial judge proposed to give little or no weight to Dr Allnutt's report because he considered that Mr Haddad was malingering, he should not have done so without first requiring that Dr Allnutt be given the opportunity to consider the matters said to have that consequence.
As to the first of these submissions, it does not follow, from the fact that Dr Allnutt's opinion may not have been based solely on the correctness of the presentation and history given by the appellant, that the trial judge's finding as to the appellant's absence of good faith was not justified. The fundamental premise of Dr Allnutt's opinion was that the appellant's current emotional state was such that he "would be unable to meaningfully interact with the court". That is so whether or not Dr Allnutt's confidence in that premise was reinforced by independent observations consistent with the genuineness of Mr Haddad's presentation and reporting. The trial judge considered that the emotional state displayed to Dr Allnutt by the appellant was a pretence and accordingly that Dr Allnutt's opinion was based on a wholly false premise. That was sufficient to justify the finding as to the absence of good faith. It followed that Dr Allnutt's opinion, considered alone, could not give rise to a "real and substantial" concern as to the appellant's unfitness; and that the trial judge could not be satisfied on the face of that material that the unfitness question had been raised in good faith.
The suggestion that the trial judge should have required Dr Allnutt to be cross-examined before giving little or no weight to his report misunderstands the trial judge's role in determining whether a fitness inquiry should be conducted. As Spigelman CJ observed in Mailes at [8], the prospect of multiple applications for an inquiry into unfitness is controlled by the prohibition in s 10(2). The good faith with which the Court is concerned is that of the person by or on behalf of whom the unfitness question is raised: Mailes at [10]. From the trial judge's perspective, the question of an accused's unfitness to be tried arises for consideration in the discharge of the trial judge's role in "ensuring the propriety and fairness of the trial": per Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 517. See also Kesavarajah v The Queen (1994) 181 CLR 230 at 244 per Mason CJ, Toohey and Gaudron JJ.
As Hayne J explained in Eastman at [294]: There can be no trial at all unless the accused is fit both to plead and to stand trial. Because the question of fitness is one which affects whether the accused has the capacity to make a defence or answer the charge, it is a question for the trial judge to consider regardless of whether the prosecution or the accused raise it. In that respect it is a question which falls outside the adversarial system. Indeed, it must fall outside the adversarial system because the very question for consideration is whether there is a competent adversary.
The MHFP Act expressly provides by s 12 that the determination of the question of unfitness itself falls outside the adversarial process of the trial, is not to be conducted in an adversarial manner, and is one in relation to which there is no onus of proof. The position in relation to the preliminary question required to be addressed by s 10(2) also falls outside that process, for the reasons given by Hayne J.
In substance, Mr Haddad's complaint seemed to be that he was not given adequate opportunity to 'put his case' or to respond to a case that was to be put against him, as it were, by the trial judge. Such a submission assumes that the Court is to consider the question raised by s 10(2) as part of the adversarial trial process. For the reasons given above, and as was accepted in argument by counsel for Mr Haddad, that is not so. In the face of his finding of pretence, which meant that the question as to Mr Haddad's good faith must be answered in the negative, it was open to the trial judge to conclude that there was no need for any cross-examination of Dr Allnutt, either as to that question or as to the weight to be given to Dr Allnutt's opinion. Accordingly, the trial judge is not shown to have erred in proceeding on the basis that no cross-examination of Dr Allnutt was required.
Two further considerations support this conclusion. The language of s 10(2), which prevents the holding of an inquiry unless it "appears to the Court" that the unfitness question has been raised in good faith, contemplates a decision on the material or matters relied on as raising that question, in the overall context of the proceedings. It is not the obligation of a Court, otherwise of the view that the unfitness question is not raised in good faith, to invite the submission of further material before the preliminary question is determined, and in the present case the trial judge had made clear, in disposing of Mr Haddad's earlier application to vacate the hearing date, that he was very sceptical about Mr Haddad's bona fides in relation to his attempts to vacate the trial. Furthermore, any risk of consequent unfairness is answered by s 7(2), which contemplates that a question of unfitness may be raised multiple times in the same proceeding.
For these reasons Mr Haddad's appeal was dismissed.

Haddad v R

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