Application by Robert Roberti pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW)

In the application made by Robert Roberti under section 78 of the Crimes (Appeal and Review) Act 2001 (NSW), the applicant sought an inquiry into his conviction. The dispute centred around allegations that the trial judge had fallen asleep during parts of the trial, which the applicant claimed affected the fairness of the proceedings. The matter was heard in the relevant court, which was tasked with determining whether the alleged behaviour of the trial judge warranted a review of the conviction.

The legal issues before the court involved assessing whether the alleged conduct of the trial judge during the trial amounted to a departure from the proper conduct of the trial that could undermine the fairness of the proceedings. Specifically, the court had to determine if the applicant's grounds for review were relevant and if they led to a sense of unease or disquiet that would warrant an inquiry into the conviction.

The court found that the alleged conduct of the trial judge did not constitute a relevant departure from the proper conduct of the trial. The court concluded that the grounds presented did not indicate that the trial judge failed to adequately supervise and control the trial, nor did they suggest that the jury was significantly distracted. There was no evidence to suggest that the judge's conduct led to any unfairness in the trial process. As such, the court did not find any basis for allowing the conviction to stand with a sense of unease or disquiet. The application was therefore refused.

The court made an order that the application for an inquiry into the conviction be dismissed. The court held that the alleged conduct of the trial judge did not amount to a departure from the proper conduct of the trial and did not warrant a review of the conviction. The decision underscored the importance of ensuring that any review of a conviction is grounded in substantial and relevant grounds that could affect the fairness of the trial process.