Madafferi v The Queen [2017] VSCA 302

Court of Appeal (Vic)|2017-10-20|Before: Mr J, Priest JA, Hansen JA, Coghlan JA

DPP v Madafferi (Unreported, County Court of Victoria, Judge Mason, 26 August 2014 (Conviction))

CRIMINAL LAW - Appeal - Conviction - Application for extension of time to appeal - Applicant convicted of trafficking in commercial quantity of controlled drug - Refusal of extension of time by Registrar - Election to have application determined by Court of Appeal - Three year delay in filing application - Fitness to be tried - Whether real and substantial question that applicant may have been unfit at time of trial - No question of fitness arose during trial - Psychiatric and psychological assessments conducted two and a half years after trial - Explanation for delay unsatisfactory - Application refused - - Part 2.

1 Following a trial in the County Court, on 26 August 2014, the applicant[1] was convicted of trafficking in a commercial quantity of a controlled drug, namely MDMA.[2]

2 On 17 December 2014, he was sentenced to 10 years' imprisonment with a non-parole period of seven years. During the plea in mitigation, eight psychological reports were tendered on the applicant's behalf. The applicant's history of depressive illness was relied upon as relevant to a Verdins[3] submission with respect to the burden of imprisonment upon the applicant. No intimation or suggestion was made, however, that the applicant may have been unfit to stand trial.

3 The applicant did not file a notice of application for leave to appeal against conviction until 6 April 2017. Since the notice was more than two years out of time,[4] the applicant sought an extension of time from the Registrar within which to file the notice. That application was refused on 20 April 2017. As is permitted by s 313(2) of the Criminal Procedure Act 2009, following the Registrar's refusal the applicant requested this Court to extend time.

4 In support of the application, the applicant contended in essence that although he at 'all times ... wished to appeal his conviction', he 'was unable to properly monitor and instruct on the status of his appeal' by reason of his 'serious mental health condition', 'cognitive impairment' and 'inability to communicate meaningfully in the English language'.

5 For the reasons that follow, we would refuse the application.

6 So far as fitness to be tried is concerned, s 9(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('the CMI Act') requires a trial judge to reserve the question of 'the fitness of the accused to stand trial' for investigation under the CMI Act if at any time after an indictment has been filed, 'it appears to the court before which the accused is to be tried that there is a real and substantial question as to the fitness of the accused to stand trial'. Therefore, if an issue had been raised by either party in the applicant's trial as to his fitness to be tried, and the judge had considered that there was a real and substantial question as to the fitness of the applicant to stand trial, the trial judge would have erred if he had failed to take the steps contemplated by the CMI Act. And if, neither defence nor prosecution having raised the issue, it appeared to the judge that there was a real and substantial issue as to the applicant's fitness to be tried,[5] but the judge failed to reserve the question for investigation under the CMI Act, the judge would have erred.

7 Of some significance, however, it was not submitted to this Court that there was anything that occurred during the trial which was capable of making it appear to the trial judge - who, it must be said, is very experienced in criminal law - that there was a 'real and substantial question' as to the applicant's fitness to stand trial. Given that this is so, the proposed ground of appeal, which contends that the applicant's trial was a 'nullity', or that there was a substantial miscarriage of justice, 'as a consequence of the failure to consider or investigate the applicant's fitness to stand trial in circumstances where there was a real and substantial question as to fitness', is somewhat misconceived.

8 That said, it must nonetheless be understood that this Court's jurisdiction to intervene with respect to the applicant's conviction would be enlivened if for any reason 'there has been a substantial miscarriage of justice'.[6] Thus, notwithstanding the failure of the parties or the judge to raise any issue as to the applicant's fitness to be tried during the course of his trial - and any infelicity in the formulation of the ground of appeal - this Court's jurisdiction would be animated if it appeared that at the time of his trial there was a real and substantial issue as to the applicant's fitness to stand trial. Self-evidently, if the applicant was unfit because he satisfied any of the criteria set out in ss 6(1)(a) to (f) of the CMI Act - or, at least, there was a real and substantial issue as to whether he did so - then his conviction could not be permitted to stand. That was the approach adopted by Hayne J in Eastman[7] (albeit with respect to a different statutory regime).[8]

9 In Eastman, the applicant had been convicted of murder in the Supreme Court of the Australian Capital Territory. He had appealed to the Full Court of the Federal Court against conviction, in circumstances in which the question of his fitness to plead or to stand trial had neither been raised at trial, nor agitated in the Full Court. The applicant then sought special leave to appeal from the High Court, the principal issues for the High Court being, first, whether special leave to appeal should be granted; secondly, whether the High Court could accept new evidence tendered by the applicant as to his mental condition and his asserted resulting unfitness; and, thirdly, whether the Full Court erred in not considering the issue of fitness to plead of its own initiative. Ultimately, the High Court granted special leave to appeal (Gaudron, Kirby, Hayne and Callinan JJ; Gleeson CJ, McHugh and Gummow JJ dissenting); but held that the High Court could not receive the further evidence which the applicant sought to tender (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Kirby and Callinan JJ dissenting); and that the Full Court of the Federal Court was not in error in not having made inquiries about, or considered, the applicant's fitness to plead or stand trial (Gleeson CJ, McHugh, Gummow and Kirby JJ; Gaudron, Hayne and Callinan JJ dissenting). Although Hayne J was in the minority as to the third issue, we do not think the force of his Honour's observations on the aspect set out below is diminished by virtue of that fact. Hayne J observed:[9]

The Full Court was bound to set aside the conviction if there was a miscarriage of justice. And there is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial. That is, to adopt the terms used earlier, there is a miscarriage of justice if there is a real and substantial question to be considered about the accused's fitness. The conclusion that there is a miscarriage if the accused may not have been fit follows from the decisions in this court[10] and in intermediate appellate courts[11] in which questions of fitness have been raised on appeal. There the question for the appellate court has been treated as being whether there was a question as to the accused's fitness, not whether the appellate court was persuaded that the accused was not fit. Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred and only then could the question of fitness be put aside.

10 Of course, an important difference between the present application and that in Eastman is that, unlike the position in Eastman, the issue of the applicant's unfitness to stand trial is distinctly raised on the putative appeal to this Court by the proposed ground of appeal. In those circumstances, as the text of s 276 of the Criminal Procedure Act 2009 makes plain, the fundamental question for this Court on an appeal against conviction must always be whether there has been a substantial miscarriage of justice. That being so, the Court in the present case should not be diverted by nice questions as to whether the evidence upon which the applicant seeks to rely in support of his application is new or fresh evidence.[12]

Considerations relevant to granting or refusing an extension of time

11 The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[13] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[14] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[15] the length of the delay - and the reasons for it[16] - and the prospects of success should the extension be granted,[17] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[18] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[19] The discretion must, as we have said, be exercised according to the individual facts of each case.[20]

12 In our view, the reasons for the delay advanced in this case are unconvincing, and the prospects of success of the putative appeal are poor. For those reasons, it is not in the interests of justice to grant the extension of time. It must be refused.

13 It is to be noted that a large volume of material was filed by the applicant in support of his application, including:

• two affidavits of the applicant, sworn respectively 29 March and 24 June 2017;

• an affidavit of his current solicitor, sworn 6 April 2017;

• an affidavit of the applicant's wife, Anna Madafferi, sworn 22 June 2017;

• an affidavit of Michele Teti, a former legal practitioner who assisted the applicant in his dealings with various lawyers in the lead up to (and during) his trial, sworn 26 June 2017;

• an affidavit of Innocenzo Maselli, the applicant's interpreter at his trial, sworn 9 June 2017;

• an affidavit of Antonino Condello, a former employee solicitor in one of the legal firm's that had previously been engaged by the applicant, sworn 22 June 2017;

• an affidavit of Stefanie Chillico, another former employee solicitor in one of the legal firm's that had previously been engaged by the applicant, sworn 26 June 2017;

• an affidavit of Dr Walter Di Bartolo, the applicant's general medical practitioner, sworn 26 June 2017;

• a number of psychiatric, psychological and medical reports (and other records), spanning a period from August 1998 to April 2017; and

• a decision of the Mental Health Review Board, dated 29 October 2003.

14 In her affidavit, the applicant's current solicitor set out the steps that had been taken to initiate an appeal. She deposed that on 9 March 2017 she spoke to the applicant's junior counsel at trial to ascertain the reasons for the delay in filing a notice of appeal. Junior counsel informed her that she and experienced senior appellate counsel were initially planning to run the applicant's appeal, but senior appellate counsel changed his mind about the manner in which he wanted to approach the appeal. The applicant then became unwell in early 2015. On 29 April 2015, the retainer of the trial solicitor was terminated. Further, junior counsel said that she and senior appellate counsel were waiting on a ruling, which was not received until 27 February 2015.

15 The solicitor's affidavit then records that around April 2015, the applicant instructed a new solicitor, who engaged a Sydney barrister. It was intended that trial junior counsel was going to consult. The solicitor's affidavit states that the Sydney barrister told the deponent that he had been contacted on 24 March 2015 with a view to briefing him as junior counsel to a renowned Sydney appellate silk, but that he did not receive the required materials from trial junior counsel until July 2015.

16 In late 2015, the solicitor's affidavit says, another new solicitor was instructed. Trial junior counsel worked on the appeal intermittently in the first part of 2016, and then she and another junior counsel worked more solidly on the matter from May 2016 onwards. The current solicitor first spoke to the applicant at Barwon Prison on 21 September 2016, and in October 2016 was instructed to lodge an appeal against conviction.

17 Although the solicitor's affidavit makes it plain that trial junior counsel and other junior counsel, engaged in May 2016, 'worked solidly' on an appeal, and that multiple grounds of appeal had been considered, the affidavit - quite unsatisfactorily - is silent as to why trial (and other) junior counsel's solid work did not result in an appeal being filed in or around May 2016. After all, junior counsel from the trial must have had a deal of familiarity with the materials, and must have had a better appreciation than most others of whether any viable grounds of appeal against conviction existed. The affidavit is silent as to whether counsel who had worked solidly on the appeal thought there was any merit in any of the multiple grounds of appeal that had been considered, or in the appeal more generally. Furthermore, and significantly, the solicitor's affidavit makes no attempt to explain why trial junior counsel ultimately was not involved in the applicant's putative appeal. And as will be seen, no evidence from trial counsel concerning the applicant's possible unfitness to be tried was advanced in support of the application for extension of time.

18 In these circumstances, we regard the submitted reasons for the delay as unsatisfactory.

19 On 8 August 2008, the applicant was arrested for the trafficking offence, which was alleged to have been committed between 12 February and 7 August 2008. Subsequently, on 17 April 2009, the applicant was assessed by Patrick Newton, clinical forensic psychologist, at the Melbourne Assessment Prison, following his arrest in relation to further alleged offending, opaquely referred to in the applicant's written submissions as 'unrelated charges'. In a report dated 21 April 2009, Mr Newton described the applicant as being 'agitated and emotionally labile', 'in a state of considerable distress' and showing 'clear signs of agitation'. Mr Newton advised the applicant's solicitors to exercise 'significant caution in obtaining instructions and providing advice to him'. As we read the report, however, although Mr Newton thought that the applicant would 'likely find it difficult to reason accurately about the various situations and outcomes which he could face', Mr Newton's principal concern was that the applicant might lapse into depression and despair 'that could induce a personal crisis of severe proportions' bringing with it the possibility of 'self-harm'. As is plain from the report, although the applicant was 'reluctant to participate' in the assessment and terminated the interview after ten minutes or so, Mr Newton (assisted by an interpreter) was able nevertheless to obtain satisfactory responses to his questions. Mr Newton, who is very experienced in the field of forensic psychology, did not, however, suggest the possibility that the applicant was unfit to be tried.

20 It is not surprising that the applicant was in a state of some distress when seen by Mr Newton. The applicant had apparently been arrested on the 'unrelated charges' in April 2009, shortly before Mr Newton assessed him. At that time, the applicant was already facing a serious drug charge, in respect of which the prosecution alleged that the applicant trafficked in 57,000 MDMA tablets (the total weight of pure ecstasy being 5,643 grams), with a value of $473,500, between 12 February 2008 and 7 August 2008, the seller of the ecstasy being a syndicate headed by Pasquale Barbaro. Police surveillance of the applicant in the company of Barbaro, and of others connected with the business, allegedly showed the exchanging of cash and boxes containing drugs in car parks and other settings. Moreover, there were many incriminating intercepted phone calls and text messages between the applicant and others (often in code). Further, business records seized from the bedroom of Barbaro and his associate, Sharon Ropa, documented their sales of drugs to the applicant; and audio and visual recordings showed them to make reference to 'Fruit'[21] whilst conducting 'customer account reviews' at their residence. In those circumstances, the applicant would likely have realised that his situation was desperate, that in turn exacerbating his pre-existing depression and mood disturbance.

21 The applicant had previously been assessed as having 'a high degree of unresolved emotional distress' by consultant psychologist, Tim Watson-Munro, in 1998, at a time when the applicant was challenging his deportation to Italy in the Administrative Appeals Tribunal. In a report dated 6 August 1998, Mr Watson-Munro offered an opinion about the applicant, gleaned from an interview conducted with the applicant with the aid of an interpreter. He assessed the applicant's verbal IQ as 'falling within the Borderline range', and stated that 'his test results confirm his poor capacity to conceptualise the issues at hand and associated with this, to formulate an appropriate coping strategy', no doubt accounting 'for his high degrees of anxiety'. The applicant was 'suffering significant depression, ongoing anticipatory anxiety and low self-esteem', with 'some suicidal ideation'. Notably, however, the applicant was apparently capable of taking part in a variety of psychological tests and of providing a detailed history. There was no suggestion that the applicant might be incapable of providing instructions relating to the deportation proceedings.

22 There is little doubt that over some years the applicant has suffered a major depressive illness, particularly as a response to being held in detention. A cluster of psychiatric and psychological reports in and around 2003, when the applicant suffered serious depression whilst he was kept in immigration detention and was faced with the possibility of deportation,[22] demonstrate that this is so.[23] Indeed, on 29 October 2003, the Mental Health Review Board was satisfied that the applicant's detention as an involuntary patient was necessary. It seems that on 17 September 2003, the applicant had - pursuant to s 12 of the Mental Health Act 1986 - been transferred from the Maribyrnong Immigration Detention Centre to the Werribee Mercy Psychiatric Centre following Professor Patrick McGorry assessing the applicant 'as having a Major Depressive Episode with psychotic features and [representing] an acute suicide risk'.[24] It must be said, however, that the existence of a major depressive illness suffered by the applicant in and around 2003, when he faced deportation, says nothing about his fitness to be tried then or at the time of his trial in 2014.

23 We need not recite the detail of all of the material upon which the applicant sought to rely, including the contents of his two affidavits setting out his claimed inability to follow the trial. The applicant relied in particular, however, on the report of forensic psychiatrist, Dr Anthony Cidoni, dated 25 March 2017, and that of neuropsychologist, Associate Professor Warwick Brewer, dated 3 April 2017, each of which purport retrospectively to assess the applicant's fitness at the time of his trial in 2014. Both these experts assess the applicant as having been unable to follow the course of the trial, with Dr Cidoni finding additionally that, on balance, the applicant had been unable to give instructions.

24 It is highly significant, however, that the applicant was assessed by a very experienced consultant forensic psychiatrist, Dr Danny Sullivan, on 25 September 2014, within a month after his conviction on 26 August 2014. In his report of 29 September 2014 - he having been asked to address any mental health issues relevant to sentencing - Dr Sullivan described the applicant as 'agitated', although the applicant denied 'distress'. Doctor Sullivan described the applicant's mood as 'dysphoric, minimally reactive and incongruent at times', although, importantly, the applicant's thought 'was normal in form, stream and possession'. Furthermore, Dr Sullivan saw no 'perceptual difficulties', although the applicant 'indicated that he did not wish to discuss any of these matters, and terminated the interview early'. Despite early termination of the interview, however, the applicant was apparently able to provide to Dr Sullivan a detailed personal, medical and forensic history. Significantly, Dr Sullivan expressed the view that the applicant 'developed serious depressive illness when previously held in immigration detention', relevant information suggesting 'that his depression is a response to detention'. The applicant 'now presents with significant depressive symptoms', and is 'agitated, hopeless about the future and although keen to put on a brave face, he appears significantly depressed'. Doctor Sullivan thought the applicant's presentation to be consistent with 'a major depressive disorder' of 'moderate severity'. Importantly, although Dr Sullivan assessed the applicant to be of 'low intelligence', his 'adaptive functioning is not consistent with any clinically significant cognitive impairment'. Very significantly, Dr Sullivan apparently observed nothing that gave any inkling that the applicant might have been unfit to be tried.

25 In his report, Dr Cidoni expressed the view that the 'most proximal specialist assessment, that by Dr Danny Sullivan dated 29 September 2014, was hampered by lack of provision of previous psychiatric history and did not include a cognitive examination to assist in giving an opinion about ability to follow a trial'. That implicit criticism appears somewhat misguided, however, in light of the fact that Dr Sullivan had available to him a psychological report of Mr Guy Coffey, dated 26 August 2003, and psychiatric reports of Dr Lester Walton, Professor Patrick McGorry, Dr Paul Katz, Dr Dean Stevenson and Dr Pradeepa Dasanayake,[25] prepared between 15 September 2003 and 20 June 2005 (albeit that Dr Cidoni had those, and several other reports and notes not provided to Dr Sullivan). Moreover, given that Dr Sullivan observed the applicant shortly after his trial had concluded and had the opportunity to assess his roughly contemporaneous mental state, we doubt that the extra material provided to Dr Cidoni gave him any advantage at all over Dr Sullivan when it came to assessing the applicant's mental state at the time of trial. Indeed, if anything, we consider that any advantage in being able to make a sound evaluation of the applicant's mental state lay with Dr Sullivan, given the close temporal connection of his assessment with the applicant's conviction.

26 It seems to us that the critical opinion of Dr Cidoni is as follows:

Given the history obtained, it is more probable than not that Mr Madafferi was unable to follow the course of the trial and give instructions at that time. This would have been contributed to by his anxiety and depression, cognitive impairment and difficulties with language and interpreting.

Regarding your query as to whether Mr Madafferi was fit to stand trial in July 2014, this clinician's opinion can only rely upon the available history that repeatedly demonstrates that when under stress, Mr Madafferi decompensates significantly, both psychiatrically, and in terms of associated cognitive processing ability. His current performance that places him in the mildly-impaired range at this assessment during the stress if remaining imprisoned and facing deportation supports this opinion.

... The available evidence reflects that at the time of his trial in 2014 that his depression re-emerged following a period of relative instability and associated functional capacity. Therefore, according to the criteria in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the 'CMI Act'), and in light of the available evidence, Mr Madafferi did not meet criterion (d) in that he could not adequately follow the trial.

28 In our opinion, neither Dr Cidoni's nor Associate Professor Brewer's opinion is persuasive.

29 Dr Cidoni's report was based on a single interview on 25 March 2017, more than two and a half years after the jury convicted the applicant, and relied substantially (if not wholly) on the history given to him by the applicant. Further, Dr Cidoni effectively dismissed the assessment made by Dr Sullivan contemporaneously with the applicant's conviction, on the basis that Dr Sullivan was 'hampered by lack of provision of previous psychiatric history' and did not 'include a cognitive examination to assist in giving an opinion about ability to follow a trial'. In truth, however, as Dr Sullivan's report makes clear, he had been provided with considerable detail of the applicant's previous psychiatric history, and, as we have said, assessed the applicant to be of 'low intelligence', his 'adaptive functioning' being 'not consistent with any clinically significant cognitive impairment'.

30 Dr Cidoni acknowledged in his report that, so far as the applicant's fitness to be tried was concerned, 'it is very difficult (and not usual) to make a retrospective assessment of fitness in July 2014, particularly given that lack of contemporaneous medical notes at that time', but stated that given the history obtained, 'it is more probable than not that [the applicant] was unable to follow the course of the trial and give instructions at that time'. That history was obtained from the applicant, however, more than two and a half years after the conclusion of the trial. In the intervening period, the applicant had been in custody, in circumstances where his mental state had ostensibly suffered significant deterioration, consistent with the deterioration of his mental state in earlier times when he was incarcerated. Thus, in our view, the 'history obtained' from the applicant, unsupported by credible evidence from other sources, ought to be regarded as patently unreliable, and as an inadequate foundation for the opinions ultimately expressed by Dr Cidoni concerning the applicant's unfitness.

31 Similarly, in our view, the opinions expressed by Associate Professor Brewer have little foundation and are accordingly lacking in weight. In reaching his conclusion as to the applicant's fitness, Associate Professor Brewer apparently relied on a detailed history supplied by the applicant purporting to describe the applicant's memory and comprehension of his trial in 2014, Associate Professor Brewer then apparently employing that history to support his opinion. But by the time Associate Professor Brewer was called upon to assess the applicant, he had been in custody for more than two and a half years, in circumstances where history seemed to demonstrate that a deterioration of the applicant's mental state was linked to his detention. Indeed, the expert himself acknowledged as much in the first-quoted passage of his report.[26]

32 For the sake of completeness, we should also refer to the non-expert opinion of Michele Teti, set out in his affidavit of 26 June 2017, that the applicant was not fit to stand trial. In his affidavit of 24 June 2017, the applicant stated that he was totally dependent on a friend, Michele Teti, to convey his instructions and to have Mr Teti explain to him what the lawyers had said. Michele Teti, who spoke the applicant's dialect, had formerly been employed by the solicitors who acted for the applicant at the committal. He assisted the applicant at various stages leading up to the trial. At a pre-trial mention, on 3 December 2013, Mr Teti ostensibly appeared as amicus curiae to assist the applicant, whom he said could speak, but not read or write, English. He told the trial judge that the applicant was unrepresented, his former solicitors having ceased to act. As appears from the record, the applicant conversed with the trial judge in the course of that mention - whether it was directly or through the medium of an interpreter is not clear - and appeared to have a clear understanding of the matter.

33 Although the admission of the affidavit of Mr Teti was not objected to by the respondent, in our view his opinion is without any weight. Putting aside its dubious admissibility - Mr Teti certainly is no expert - the affidavit is silent as to the trial in 2014, the pre-trial court hearings, the immediate post-trial conferences, the plea hearing, his role in those matters, or his observations of the applicant during that period, notwithstanding Mr Teti's capacity at relevant times to communicate with the applicant in his native dialect. Significantly, notwithstanding that Mr Teti recently has volunteered his opinion that the applicant was unfit to stand trial, it does not appear that he communicated that opinion at around the time of the trial to the trial judge, counsel or, for that matter, anyone else.

34 The most striking deficiency in the applicant's evidence in support of the present application is, however, the complete absence of any material from the solicitors or junior counsel who represented the applicant throughout the trial, or from senior counsel who appeared with junior counsel at trial (and also appeared for the applicant in the committal proceedings). Based on the everyday experience of a criminal trial, it might reasonably be expected that in the course of the trial senior and junior counsel and their instructing solicitor would have conferred with the applicant on a daily basis - indeed, more than once in a typical day - for the purposes of obtaining instructions, discussing tactical decisions, providing an assessment of how the case was progressing and simple chat. Based on experience, it certainly might be thought that senior and junior counsel and their instructing solicitor would be best placed to provide evidence of anything that might have raised a question in their minds as to the applicant's fitness to be tried. And based on experience, it might be expected that senior and junior counsel and their instructing solicitor would have been astute to act on and investigate any hint or suspicion that the applicant might have been unable to understand the nature of the charge, the nature of the trial or the substantial effect of any evidence given in support of the prosecution case; or unable to enter a plea and exercise the right to challenge jurors,[27] follow the course of the trial or give instructions to them.[28] Yet no evidence was forthcoming from senior or junior counsel or their instructing solicitor in support of the present application.

35 When members of this Court confronted senior counsel for the applicant[29] with the difficulty created for the applicant by the absence of evidence from either trial counsel or their solicitor, he submitted: 'Well, this case is, "You've missed it"'. Senior counsel submitted that the absence of any contribution to the evidence by trial counsel in support of the application does not militate against the applicant's claim that he was unfit to be tried. Somewhat ingeniously, senior counsel contended that the absence of any evidence from trial counsel reflects the applicant's claim that 'this matter was not grappled with at trial, which itself is the gravamen of this application'. Despite the ingenuity and vigour with which these submissions were advanced, however, we do not find them persuasive. It beggars belief that, in the first place, trial counsel and their solicitor could have 'missed' signs that the applicant was unfit to be tried; and, in the second place, would have failed to raise any apprehension about the applicant's possible unfitness with the judge.

36 Absent any evidence from trial counsel and their solicitor - it may readily be inferred that their evidence would not have helped the applicant's cause - the applicant's case rises or falls on the opinions of Dr Cidoni and Associate Professor Brewer. For the reasons discussed, their opinions carry little weight.

37 Furthermore, as we have mentioned, the trial judge is very experienced in criminal law. There is nothing in the record of the trial which suggests that, in the 44 sitting days that the applicant's trial occupied, the judge noticed anything which raised a concern in his mind as to the applicant's fitness to be tried. We consider it to be highly unlikely that, as the trial unfolded before him, such an experienced criminal judge would have failed to intercede had he detected anything indicating that the applicant might have been unfit to stand his trial.[30]

38 In RTI,[31] a case in which the applicant's unfitness to be tried was raised on appeal, Howie J (with whom Tobias JA and Shaw J agreed) observed:[32]

... If there is material before this Court which raises a question about the propriety of the conviction because an appellant may have been unfit to stand trial, the Court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the court acting reasonably must have found that the accused was fit to stand trial. It is only if the Court can come to that finding that there will be no possibility of a miscarriage of justice. I do not believe that such a finding is open in the present case. Therefore, the convictions and sentences must be quashed and a new trial ordered.

39 Based on the material presented to this Court - including the retrospective appraisals of Dr Cidoni and Associate Professor Brewer - in our view, there is no reasonable possibility that, had the issue of the applicant's unfitness to be tried been raised in 2014 during his trial, he would have been found to satisfy any of the criteria in s 6(1) of the CMI Act_._ Indeed, his apparent capacity to plead to the charge, challenge jurors and provide instructions in the course of the trial, suggests to us that had the question been raised during the applicant's trial, upon an appropriate investigation under the CMI Act, the applicant would have been found to have been fit to stand trial. In this regard it is to be noted that a person 'is presumed fit to stand trial',[33] and the party raising the question of a person's unfitness to stand trial 'bears the onus of rebutting the presumption of fitness'.[34]

40 It is not in the interests of justice to grant an extension of time. The application must be refused.

[1] The applicant's date of birth is 10 January 1961. He is currently 56 years of age.

[2] Pursuant to s 302.2(1) of the Criminal Code (Cth), the maximum sentence is life imprisonment. A commercial quantity of MDMA is 500 grams: see Criminal Code Regulations 2002 (Cth), sch 3, item 173, column 2.

[4] Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed 'within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313'.

[5] For example, in Kesavarajah v The Queen (1994) 181 CLR 230, during his charge to the jury, various matters came to the trial judge's attention which again raised the question of the applicant's fitness to be tried, including a note of the applicant's to the effect that he was receiving instructions from aliens, was the incarnation of Lord Vishnu and had just returned to Earth.

[7] Eastman v The Queen (2000) 203 CLR 1 ('Eastman').

[8] See s 68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT).

[9] Eastman (2000) 203 CLR 1, 106 [319] (emphasis in original).

[10] Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 and Kesavarajah (1994) 181 CLR 230 (citations in original).

[11] eg, Khallouf [1981] VicRp 38; [1981] VR 360. See also R v Dashwood [1943] KB 1; R v Podola [1960] 1 QB 325 (citations in original).

[12] See Rich v The Queen [2014] VSCA 126; (2014) 43 VR 558, 570-1 [49]-[50] (Nettle, Neave and Osborn JJA); Bowden (a pseudonym) v The Queen [2017] VSCA 46 [37] (Priest JA).

[13] Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59] (Priest JA) ('Jopar').

[15] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).

[17] Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).

[21] The applicant was associated with a fruit and vegetable business, 'Mondo Fruit', in Coburg, and was apparently known by the nickname 'Fruit'.

[22] See Madafferi v Minister for Immigration and Multicultural Affairs [2000] AATA 450 (Blow DP); Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 581 (Marshall J); Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 (French, O'Loughlin and Whitlam JJ); and Madafferi v Minister for Immigration and Multicultural Affairs [2003] HCATrans 803 and Re Duncan & Anor; ex parte Madafferi [2003] HCATrans 804.

[23] See reports of Mr Guy Coffey, dated 26 August 2003, 23 December 2003, 28 June 2004 and 13 December 2004; Professor Patrick McGorry, dated 17 September 2003; Dr Lester Walton, dated 15 September 2003; Dr Paul Katz, dated 1 December 2003 and 22 March 2004; Dr Dean Stevenson, dated 19 January 2004; and Dr Pradeepa Dasanayake, dated 20 June 2005.

[24] See report of Dr Dean Stevenson, dated 19 January 2004.

[25] See footnote 23 above.

[27] It seems that the applicant exercised his right to challenge during the empanelment of two juries, the first jury being discharged without verdict on 10 July 2014.

[28] The first jury was discharged after a juror provided a note to the judge to the effect that she thought it common knowledge that the Barbaros were drug traffickers, but that none of the other jurors seemed to be aware of that fact. When asked for a submission as a result of the juror's disclosure, senior counsel for the applicant told the judge: '... At the very least, I want to speak to my client.' After both counsel for the prosecution and defence had sought instructions, the prosecutor asked for a discharge of the jury. When the judge sought a response from the defence, senior counsel for the applicant submitted: 'Our position is almost identical, Your Honour. I have instructions to apply for a discharge, Your Honour.'.

[29] Different senior and junior counsel appeared on the applicant's trial and in this Court.

[30] Section 9(2) of the CMI Act provides:

At any time during a trial, if it appears to the trial judge that there is a real and substantial question as to the fitness of the accused to stand trial, the judge must adjourn or discontinue the trial and proceed with an investigation under this Part.

(Mental Impairment and Unfitness to be Tried) Act 1997

Code Regulations 2002

Health (Treatment and Care) Act 1994

At a glance

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Legislation Cited (5)

Cases Cited (9)