Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek

Relevant Background and History 4No appeal was lodged against the court's 2008 decision in the class 4 proceedings. 5The related class 1 proceedings ( Bek v Sydney City Council - 10708 of 2008) were discontinued by consent on 23 October 2008. 6The orders essentially prohibit both respondents to the original proceedings from using, advertising, leasing, or licensing the subject premises for purposes of a carwash, without development consent, and required the removal of advertising signage and other unauthorised building works. 7On 30 October 2008, the Council charged both respondents with contempt of the court's orders, and both, as defendants to those charges, entered pleas of not guilty on 12 November 2008. 8The contempt hearing was appointed to commence on 11 March 2009 . On that date both defendants, through their then solicitor, entered pleas of guilty, and their solicitor raised, in mitigation, some questions as to Mr Bek's mental capacity, he being not only a defendant in his own right, but also the principal and guiding mind of the defendant company. The solicitor sought an adjournment to enable referral of Mr Bek for psychiatric/psychological assessment during April 2009. 9I granted the requested adjournment, on the basis that the operations which were the subject of the orders would totally cease, and that Mr Bek would undergo a pre-sentence assessment by the appropriate authorities. 10The pleas of guilty were formally entered, and the undertaking to cease all operations was noted, but I declined to record a conviction at that stage. 11On 16 March 2009, the court was told that the site continued to operate, but that Mr Bek had sold the business on or about 13 March 2009. 12On 3 April 2009, the defendant company was deregistered and/or dissolved, and since that date the contempt proceedings have continued against Mr Bek alone. 13On 14 May 2009, the Pre-sentence Report (now before me as Exhibit 4 ) was signed, and it was later sent to my chambers. 14Mr Bek failed to appear when the hearing resumed on 18 May 2009, and leave was granted to the Council to proceed in his absence. 15The prosecutor's case was adjourned part-heard at the end of that day, and I ordered the prosecutor to make telephone contact with Mr Bek and deliver a letter to him overnight informing him (1) of the seriousness of his personal position in light of the case presented by the Council, and (2) that the court had declined to issue a warrant for his arrest, pending his being given one last opportunity to appear voluntarily, preferably with legal representation, when the hearing resumed at 9.30am on Tuesday 19 May 2009. 16During brief proceedings on 19 May 2009, Mr Bek appeared in person, but unrepresented, and I adjourned the matter to enable him to secure fresh representation. 17Since 29 July 2009 he has been represented at all relevant times by a senior solicitor, Mr Christopher John Haseldine of Bankstown, pursuant to a grant of legal aid. 18It appears that Dr Stephen Allnutt, retained for the defence, saw Mr Bek on 8 October 2009, and prepared a report dated 13 October 2009. 19The matter was relisted on 21 October 2009, and Dr Allnutt attended voluntarily to canvass with the court the threshold question of Mr Bek's fitness to plead and/or stand trial, not simply his understanding of what the court's orders required of him (see T 21.10.09, pp15-17). 20Dr Allnutt's written report of 13 October 2009 ( Exhibit 1 ) was tendered without objection, and he consulted again with Mr Bek in the precincts of the court on 21 October 2009. 21Dr Allnutt's report and oral evidence on that day caused me serious concern. He urged the court to " proceed cautiously ", and suggested the proceedings be further adjourned, so that he could have Mr Bek undergo neuropsychological testing, the results of which would then be placed before the court before acceptance of the plea of guilty. 22Mr Bek was subsequently referred for psychometric testing by Dr Susan Pulman. 23There was some delay in assembling and considering the medical and psychometric evidence, and the matter had to be further adjourned on several occasions. 24By 14 May 2010 Mr Haseldine had lost contact with Mr Bek and was uncertain as to his whereabouts. The solicitor for the Council was also unable to locate him, but wished to have further psychometric testing done on its own behalf. 25In June 2010, Council sought the court's assistance in having Mr Bek see Professor Stephen Woods for psychometric testing. At Council's urging, the court, rather than making formal orders, issued formal requests for Mr Bek to attend that testing. 26Mr Haseldine withdrew from the case on or about 27 July 2010 when the legal aid grant was withdrawn, but he has returned to the matter since I issued a warrant for Mr Bek's arrest on 17 May 2011.

"Fitness" questions in this court 27This court had never, prior to that time, been confronted with a question of unfitness to plead, or, as the relevant modern health legislation prefers to describe it, lack of " fitness to stand trial ". 28However, soon afterwards, a similar issue arose before Pepper J in Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander (see Her Honour's judgments of 19 November 2010 [2010] NSWLEC 235 (' Alexander No 1' ), and 23 May 2011 [2011] NSWLEC 87 (' Alexander No 2' )). 29Mr Alexander had appeared unrepresented before Her Honour on his own behalf and on behalf of the defendant company, of which he was the principal director and representative, and concerns arose during the hearing about his capacity to deal with the proceedings. 30Her Honour turned to the Mental Health (Forensic Provisions) Act 1990, but concluded, in my respectful view, correctly, that it does not apply to proceedings in this court. (This is a legislative omission or anomaly clearly in need of rectification). 31Her Honour then turned to the common law, and clearly set out in her judgments, and applied, the principles that the law says must be applied when such an issue arises in proceedings before this court. 32I am entirely satisfied as to the correctness of Her Honour's approach, and, in the present matter, as neither Mr Wright for the Council, nor Mr Haseldine for Mr Bek, has urged a different course, I will follow it to the letter. 33The founding principle is that a trial cannot proceed if there may be unfairness or injustice, unless the court is able to make adjustments to the conduct of the proceedings which will truly overcome any unfairness. The issue may not be the possibility of mental disorder or illness, but, simply a question of capacity to comprehend the proceedings. 34Once the issue of " fitness " is raised, or the court itself becomes concerned about it, the trial must be suspended and an " inquiry " conducted, on an inquisitorial rather than an adversarial basis, into the question. As the inquiry process is inquisitorial, rather than adversarial, the responsibility lies on the court to make the assessment after a properly constituted and conducted hearing, observing the usual formalities of the court process, and seeking the assistance of suitably qualified expert witnesses. 35In an unreported decision on 9 September 2010, GD Woods DCJ observed that " fitness " does not require an accused person to be " in peak health or at the top of his mental condition ", but the stressful nature of the trial process and a tendency towards some " loss of memory " of alleged key events are not sufficient grounds for a finding of unfitness (R v Hugh Edward Murray, Sydney District Court, 2009/63315, unreported 09.09.10) 36The guiding principles or criteria to apply are known as the Presser Test ( R v Presser [1958] VR 45). Pepper J, in Alexander No 1 (at [74]) summarised the test as follows: He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any. 37Those criteria have been endorsed by the High Court of Australia in cases such as Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230 , Eastman v R [2000] HCA 29; (2000) 203 CLR 1 , by senior judges of the Supreme Court of New South Wales, e.g. Wood CJ CL in R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 , and Adams J in Mantell v Molyneux [2006] NSWSC 955; (2006) 68 NSWLR 46 , and by the Court of Criminal Appeal of New South Wales in R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1 , and R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 . 38The Presser principles are dealt by Pepper J in Alexander No 1 (at [69]-[79]), and, in par [6] of Alexander No 2 , Her Honour added the following considerations: (a) first, I do not read Presser or any of the authorities that have subsequently endorsed and applied that decision to mean that the check list of issues set out in that decision must all be answered in the negative to find the accused unfit to be tried; (b) second, having said this, it is not sufficient that the accused merely has a reduced capacity to meet the Presser test that falls short of denying to the accused the ability to understand and follow the proceedings in each of the necessary aspects ( R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284); (c) third, the fact that an accused may have done better in a trial had he or she possessed a more attractive personality; a greater level of intelligence or education; improved communication skills; a deeper appreciation of the factual and legal issues; a better appreciation of the trial process; or had suitable medical treatment or medication had been provided, does not necessarily render an accused unfit for trial (Rivkin at [298]-[300]); (d) fourth, a temporary condition can, if present at the time of trial, render an accused unfit to stand trial ( Rivkin at [285] and [296]); (e) fifth, the cause of any unfitness is not limited to mental illness but can include a physical illness, a developmental disability or a combination of all three ( Rivkin at [284] and R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251); and (f) sixth, while the position at common law regarding the onus or burden of proof in any determination of unfitness to stand trial is not entirely clear, in my opinion, given that the issue of fitness in the present case has been raised by Mr Alexander, the accused in these proceedings, the onus lies on him to demonstrate that he is unfit on the balance of probabilities ( R v Podola [1960] 1 QB 325; (1959) 43 Cr App Rep 220 and Rivkin at [301]). Having said this, I acknowledge that there is authority to indicate that where the Crown raises the issue of fitness to stand trial, the onus of proof lies on it to prove unfitness beyond a reasonable doubt ( R v Donovan [1990] WAR 112; (1989) 39 A Crim R 150 at 154-155).

The Evidence put before this Inquiry 39In this case, relevant expert evidence was available from the witnesses mentioned above, Professor Woods, Dr Allnutt, and Dr Pulman, all three of whom gave concurrent evidence on 25 August 2011. When the hearing resumed on 8 November 2011, Woods and Allnutt gave further concurrent evidence, and the court had the benefit of their written material, tendered by Mr Wright and Mr Haseldine. 40Attention was paid also to Dr Pulman's assessment report dated 13 November 2009 ( Exhibit 3 ), to the Probation and Parole Service ('PPS') report dated 14 May 2009 ( Exhibit 4 ), and to an affidavit sworn in the proceedings by Gregory John Totten on 3 November 2010. 41I turn now to review the evidence before the inquiry. 42On 14 May 2009, the Probation & Parole Service, which had experience of Mr Bek dating back to August 2000, expressed the following conclusion ( Exhibit 4 , p2): On the surface Mr Bek could be summarised as having limited capacity to comprehend the complexities of municipal requirements or judicial orders. Consequently he has demonstrated an inability and failure to act in accordance with them. It is further noted that his difficulties appear to be compounded by significant domestic demands, financial pressures, cognitive deficits and as yet unresolved mental health problems. 43In her 13 November 2009 report to Mr Haseldine, Dr Pulman, who is a clinical neuropsychologist and forensic psychologist, concluded ( Exhibit 3 , pp6-7 of 8): Mr Bek is a twenty-nine year old man with a history of learning difficulties, poor reading skills and a mild intellectual disability. He is currently functioning below 99.8% of the normal population. Although Mr Bek reported attending school until Year 10 he demonstrates significant reading and comprehension difficulties. During assessment it was necessary to repeat and rephrase questions in order to assist Mr Bek provide a response. Based on current assessment it is unlikely that he would have the capacity to read and comprehend legal correspondence. He has a very rudimentary understanding of court proceedings and it is my professional opinion that Mr Bek is not fit to plead. He is unlikely to have been able to follow previous court proceedings and is at risk of misinterpreting any direction or order. The reading of an order is unlikely to ensure that Mr Bek understands the intentions or specific instructions contained in such an order. Mr Bek demonstrated considerable difficulty following basic instructions during assessment and without information being explained to him in simple terms he was unable to respond appropriately. Although his depressive illness is likely to be impacting upon his cognition to a certain extent, his overall level of intellectual functioning is still likely to remain in the extremely low range following recovery from the illness. 44Dr Pulman gave oral evidence along the same lines on 25 August 2011 (see T 25.8.11, p6, L34-p7, L7; p9, L43-p10, L15; p17, LL29-37). 45Mr Totten is the General Manger of Omikron Australia Pty Ltd, a company that manufactures and distributes cleaning and detailing products for the automotive and marine industries. Omikron used to supply Mr Bek with cleaning products at, Totten says, three carwash businesses. 46Mr Totten dealt with him directly on a number of occasions up to October 2010, and deposes (pars 3-6) that Mr Bek conducted, without any support person, " all negotiations himself " regarding " prices ", and " a better deal ... on a cash basis ", and " had no problems identifying the products that he required to conduct his businesses ". They also negotiated regarding payment of accounts, and Mr Bek made, again without any support person, decisions and settlement offers. 47Dr Allnutt's seven-page report of 13 October 2009 ( Exhibit 1 ) includes the following opinions (first, third and fourth pars on p6): Based on the information provided to me by your client, there would be reasonable grounds to conclude that he manifests a depression that is impacting on his cognitive functioning causing attentional problems and concentration difficulties; based on his symptom profile he would be regarded as suffering a "mental illness" as defined under chapter 1 of the New South Wales Mental Health Act. ... The information provided to me by your client was somewhat limited by difficulties with engaging. apparent memory problems and his mother's limited English; however the information provided to me led me to conclude that he has for a while now, including at the time of his presentation in Court in September 2008, been suffering from a depressive disorder; having regard to his presentation to me at the time that I assessed him, I am of the view that he would have been at significant risk of being unable to follow the proceedings of the hearing adequately and at risk of misunderstanding the order in the first place; thus at the material time he would be regarded as suffering a "mental illness" for which treatment was available in a mental facility. With the information provided to me at this stage he does not manifest a developmental disability. 48On 21 October 2009, as already noted ([19]), Dr Allnutt came to court voluntarily, consulted with Mr Bek, and gave sworn evidence (T 21.10.09, pp15-17), during which he said of Mr Bek (T 21.10.09, p15, L47-p16, L14): ...he continued to manifest symptoms of a depression with some perceptual disturbances which could be mild psychotic symptoms in that he hears noises outside the house, he keeps thinking that people might be out there. He also presented, as he did last time, with some cognitive impairments in particular short term memory which would be of some concern. I canvassed with him his choice of plea of guilty and I am concerned about that plea at this stage and I think the court needs to proceed cautiously in accepting that plea. I detected a strong sense of ambivalence about his choice of plea. There were some difficulties in me obtaining a clear rationale for him choosing that plea. The impression I got was that he might have made that plea spontaneously without giving it much thought and he would be vulnerable to that if he was depressed because he would have concentration difficulties, he's got concentration difficulties, his motivation is not that great, and many people with depression also get a sense of indifference about things, they are indifferent about court matters. He manifests some cognitive problems that I think are probably because of his depression. People with depression can develop cognitive problems in the area of concentration as well as short term memory and I think that that's the consequent (sic) of depression. 49Dr Allnutt recommended (T 21.10.09, p16, LL15-31) further testing, " just to rule out a brain condition ", and concluded his evidence with the comment (T 21.10.09, p17, LL31-35): ... the other area that he might be unfit is in the area of following proceedings which is Kesevarajah because if he's got short term memory difficulties he won't be able to engage on a day to day basis. So that's the other area that you may have unfitness down the line. 50Mr Haseldine sent Dr Pulman's report to Dr Allnutt, and Dr Allnutt replied on 18 January 2010 ( Exhibit 2 , par 2): ... this hass (sic) confirmed the initial concerns that I had as elicited in cognitive testing; you will note that in my report dated 13 October 2009 I recommended that you pursue neuropsychological testing in order to clarify the nature and severity and presence of a cognitive difficulty; I note that the psychological testing has confirmed that he has a mild intellectual disability; with the information provided to me by your client at the time of my interview he described the presence of a number of depressive symptoms; having regard to Dr Pullman's report the depressive symptoms would have compounded any intellectual difficulties that he might have been experienced at that time of his presentation in Court in September 2008 thus compounding the risk of being unable to follow proceedings of the hearing adequately and risk of misunderstanding. 51In his oral evidence on 25 August 2011, Dr Allnutt said (T 25.08.11, p10, L27-p11, L5, and LL15-16): ... there are two conditions active. I think he has a depression and he's got cognitive difficulties. I think if you look at functioning purely, everyone's got to consider functioning while depressed and functioning while not depressed; the one can compound the other. When I saw him in 2009 I thought he had a depression, and depressive symptoms can manifest with concentration problems and attentional problems, anxiety which can be distracting, and I thought he was experiencing those symptoms; and those would compound any cognitive difficulties that he might have. So when I saw him in 2009 I thought that on balance, as a consequence, he would have been unfit under Presser, based on the capacity to follow proceedings. When I assessed him in 2009 around his understanding of not guilty and guilty, there seemed to be ambivalence and unsureness, but I didn't think that wasn't my conclusion as to why I thought he might have had the unfitness. I think that, you know, with some assistance and with some explanation and some time he probably would have been able to choose between choosing guilty or not guilty. That's what I thought then. Today he continues to present with the same cognitive problems, they're static, and today he continues to present to me with depression. In fact, and the depression I think's quite significant, there are some auditory phenomena that he experiences as well. They're not true I don't think they're to the extent that I say he's got a psychotic depression, but it suggests there's a degree of severity. He also has panic attacks, which also suggests the degree of severity. Today I think he's able to determine between guilty and not guilty and make opinion, but today I have a bit of concern about what it was what happened exactly with his lawyers around the time when he put a plea in and then withdrew a plea and why change the plea and what exactly that was all about. So it causes me a degree of concern. ... if you consider his mental state today and project it back to then you might say that on balance he probably had capacity to enter a plea. 52Professor Woods was engaged by the Council in November 2010 and was provided with extensive materials, including the PPS report, and the Allnutt and Pulman reports (May, October and November 2009 respectively), and Totten's affidavit. 53Mr Bek failed to attend for assessment by Professor Woods, as requested by the court, so the initial Woods (16 page) report of 11 November 2010 ( Exhibit A ) was based on his review of the materials supplied (listed in the report), and on his " professional expertise in the area of forensic psychology and profiling ". He noted (at p4) that neither Pulman nor Allnutt " had the benefit of highly relevant collateral information" (school records, criminal history, hospital records, driving history, etc), and (at p10) that they " had difficulty obtaining a complete history" . 54It is clear (from par 2.5 on p13) that Professor Woods also referred to a " Surveillance Report " from Robert Lancaster (who gave evidence in the unfinished contempt hearing, on 18 May 2009). 55He noted (at pp15-16) that Dr Pulman's assessment of Mr Bek's " level of cognitive functioning was very significantly lower " than that done in his school days (IQ 56 c.f. 72), when (at p6) " In the absence of some form of brain injury and probability that Mr Bek's language skills would have further developed as he aged and interacted with the broader English language speaking community, it is reasonable to expect that his scores on the Wechsler test would have improved ...". He concluded (p16): In the absence of any evidence that would account for a significant deteriorating in his level of cognitive functioning, one must consider the question (indeed probability) of malingering. The test used by Dr. Pulman to assess Mr. Bek's level of motivation (and thus be [sic] extension the possibility of malingering) is not sensitive to malingering and therefore of little forensic value. ... his history suggests his level of cognition functioning to be in at least the normal or average range. The contents of affidavit of Mr. Gregory John Totten reveals Mr. Bek to be deceitful and manipulative. This type of anti-social behaviour is also a feature of his criminal conviction history. Review and analysis of the various documents listed on pages 1 and 2 of this report strongly support the view that Mr. Bek was, in all probability, engaging in malingering behaviour and provided misleading and false information when he attended for assessment with Dr's Allnutt and Pulman. A similar level of deceit appears to have occurred when interviewed by Ms Griffiths, Probation and Parole Officer. The most probable reason for this behaviour being to deceive the Court in order to avoid prosecution. 56Professor Woods then saw Mr Bek on 7 and 13 July 2011 and prepared a second report dated 3 August 2011 ( Exhibit B ). Mr Bek (p2) " did not exhibit signs of Major Depression or severely impaired cognitive functioning ", and he told Professor Woods that " his psychological health and general functioning has greatly improved over time ", but (p6) that he remained " deeply concerned " about the subject matter of these court proceedings, which accounted for his " previously suffered ... symptoms of acutely depressed mood ". He had a painful injury to both wrists which (p7) made it difficult to concentrate during testing, he is known (p8) to have serious sight impairment, and his primary language is Arabic (which Professor Woods notes (p4) can cause its speakers to confuse English words with similar consonantal structures). These factors led Professor Woods to opine that (p9) there was a " high probability " that some test results were " artificially depressed ". 57Professor Woods opined (p10) that Mr Bek satisfies the minimum requirements/standards of the Presser Test, and (p11) that, " on the balance of probability, Mr. Bek would have been capable of understanding the original proceedings and original orders ". 58In court on 25 August 2011, Professor Woods testified (T 25.08.11, p6, LL19-30): I'm of the opinion that he is fit to enter a plea and stand trial today. I would put qualifications to it in that I believe that Mr Bek has got concrete and limited English language skills and so any language that was put to him would need to, I believe, not be of a double barrel nature; simple, concrete in its presentation. As far as the standing of trial is concerned, to some extent that would be determined by the complexity of the matter and the duration. A five day matter, I think that he would struggle with that, that he would need a great deal of assistance from his legal representative, that may well need to have regular breaks. I think that if those factors were put in, on balance I think that with all that assistance, yes he would be. On a shorter matter, less complex, one day for example, the level of assistance would decrease that he would need. and (T 25.08.11, p9, LL15-32): Based on the testing, yes, there is a cognitive difficulty that Mr Bek exhibited when I saw him. Based on his school records, there were cognitive difficulties going back. If, however, we look at cognitive functioning in terms of adaptive behaviour, a person's ability to function within the community, to function effectively without requiring a carer, function to a level where they do not require to go on a disability pension, I think that Mr Bek does demonstrate a good level of functioning. The collateral history that I have been shown, if we assume that it is all correct and I have no reason to doubt it, I believe that he is fit and was at the time. ... So, based on adaptive type behaviour and functioning within the community, I think he was functioning quite well. So, ... I would think on the balance of probability, yes, he was fit. and later (T 25.08.11, p12, LL48-p13, L21): ... when I asked Mr Bek why he continued, he told me that he believed that was part of the lease. So that to me implied a defence, but also in the context of the answer it was clear well I thought it was clear that he understood that he was being told to stop, but thinking that that order to stop was wrong. So when I put that together with what I understand to have been the functioning in the community at that stage, I think there is a fitness to understand or a capacity to understand an order of stop. ... On the other operations at the garage Mr Bek told me that he stopped doing the car repairs because it was not profitable... That to me implied some decision making, some rational decision making. 59At the conclusion of the concurrent evidence on 25 August 2011 , it was clear that the three experts should all be provided with the same information, including access to Mr Bek's evidence to the original hearing of the substantive proceedings, and given the opportunity to review their evidence. Professor Woods had already seen a large amount of " collateral material " (the school records etc), and placed a lot of weight on that material, whereas Drs Allnutt and Pulman were particularly interested to hear the audio of Mr Bek's sworn evidence (see now T 08.11.11, p8, LL1-3, and p9, LL6-12). To facilitate further individual and joint consideration of their expert evidence, the hearing of the fitness inquiry was adjourned to 8 November 2011 . 60After hearing the tapes and studying the transcript of Mr Bek's 2008 evidence, Professor Woods prepared a further brief report ( Exhibit C ), dated 1 November 2011. He noted (p2) that, in the courtroom on 25 August 2011, Mr Bek " presented in a manner that would suggest he was acutely depressed and ... was suffering significant degree of cognitive impairment ", whereas later, outside the courtroom, his " oral skills and overall presentation ... [were] not consistent " with that. 61However, Professor Woods expressed the opinion that " Mr Bek was entirely fit to enter a plea, provide instruction to his legal representatives, and follow court proceedings at the time of giving evidence ". When Professor Woods gave further oral evidence on 8 November 2011, he adhered to that opinion, and agreed " that would still be the position today " (T 08.11.11, p5, L45). "... I thought he was more than capable of passing all the necessary criteria of Presser and of functioning very well in the community " (T 08.11.11, p7, LL32-33). 62After 25 August, Dr Allnutt was given access to the tapes, PPS report, and Professor Woods's report of 1 November 2011. He conferred further with Professor Woods, and also spoke with Mr Bek again at court on 8 November 2011. He expressed his agreement with Professor Woods's final opinion, saying (T 08.11.11, p6, L16): "... I would agree. I think he's fit to stand trial, and was fit at the time that those tapes were made ", and (T 08.11.11, p8, L50) " it became clear that he was quite competent ". 63Dr Pulman played no further role in the court's inquiry after giving her oral evidence on 25 August 2011.

Submissions 64Mr Wright, counsel for the prosecutor, submitted that, on all the evidence put to the court during its inquiry into fitness, the court " would conclude that Mr Bek was fit when he entered his plea and remains fit " (T 08.11.11, p13, LL26-27). 65On Mr Bek's behalf, Mr Haseldine made no objections to any of the prosecutor's documentary evidence, and saw no need to cross-examine the witnesses Allnutt and Woods, saying (T 08.11.11, p13, L34) that he was " very much alive " to their evidence. 66I later had the following exchange with him (T 08.11.11, p14, LL18-22): HIS HONOUR: So, Mr Haseldine, you're not submitting to the Court that I should make a finding of unfitness? HASELDINE: No, your Honour, I don't think I can usefully do that in view of the evidence just given here today.

Conclusion 67The court finds that all the experts' evidence presented at the conclusion of their investigations of Mr Bek is unanimous and firm in its effect. 68Accordingly, the court finds that Mr Bek was, at the time of changing his plea to guilty on 11 March 2009, fit to do so, and that he remains fit for the sentencing hearing, part-heard from 19 May 2009, to continue. 69Mr Haseldine was not in the case at the time of the presentation of the prosecutor's evidence on 18 May 2009, and I direct the parties to agree upon, and submit to me, directions for the future conduct of the sentencing hearing, and to approach the Registrar to obtain a hearing date(s). 70As the PPS report dates from that 2009 hearing period, I agree with the prosecutor that a new one should be prepared. At the end of the inquiry hearing on 8 November 2011, Mr Haseldine agreed (T 08.11.11, p17, L14) with that as " an appropriate course ", and I will direct him and his client to make the necessary arrangements forthwith. 71All the inquiry exhibits may be returned, and the question of costs is reserved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2011