Roberts v R

[2023] NSWCCA 187

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Roberts v R [2023] NSWCCA 187

Hearing dates:

13-14 June 2023

Date of orders:

28 July 2023

Decision date:

28 July 2023

Before:

Kirk JA at [1];
Davies J at [145];
Yehia J at [151]

Decision:

(1) Leave to appeal granted.

(2) Uphold the appeal.

(3) Set aside the convictions and sentence with respect to counts 1, 3 and 5 and order a retrial on those counts.

(4) List the matter in the arraignment list in the District Court on 11 August 2023.

(5) Pursuant to s 578A(4)(a) of the Crimes Act 1900 (NSW) the name of the applicant, William Keith Roberts, may be published identifying him as the applicant in this matter.

Catchwords:

CRIME — Appeals — Appeal against conviction — Fitness to be tried — Where fitness to be tried was not raised at the trial and was first raised on appeal — What test to be applied — Significance of Mental Health and Cognitive Impairment Forensic Provision Act 2020 (NSW) — Identity of the primary decision-maker under the Act is a judge rather than jury or administrative tribunal — Whether previous case law distinguishable based on identity of the primary decision-maker — Whether applicant was not or may not have been fit to stand trial — Applicant had dementia at time of trial affecting his manner of presentation and cognitive function — Significance of expert evidence on fitness — Where jury unaware that the applicant was affected by dementia — Where applicant’s “argumentative and obstructive” presentation used to assert that the applicant was lying in his evidence

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Where applicant found guilty on two counts and not guilty on three separate counts — Capable of reconciling differences in the evidence in support of separate counts — Where witness’s reliability is in issue, inconsistencies between accounts will not necessarily lead to a conclusion that the witness is unreliable on all matters

Legislation Cited:

Crimes Act 1900 (NSW), s 578A

Criminal Appeal Act 1912 (NSW), s 12(2)

Evidence Act 1995 (NSW), s 80(a)

Judiciary Act 1903 (Cth), ss 68, 79

Mental Health (Criminal Procedure) Act 1990 (NSW), ss 10(2), 11, 11A

Mental Health (Forensic Provisions) Act 1990 (NSW)

Mental Health and Cognitive Impairment Forensic Provision Act 2020 (NSW), cll 1, 7, 7A; ss 35, 36, 44, 47; Pt 4

Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021 (NSW), reg 32

Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (NSW)

Supreme Court (Criminal Appeal) Rules 2021, rr 4.2-4.12

Cases Cited:

AS v R [2022] NSWCCA 291

Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59

Barney v R [2023] NSWCCA 85

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71

BW v R [2023] NSWCCA 146

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25

Davies and Cody v The King (1937) 57 CLR 170; [1937] HCA 27

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28

Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29

Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28

Feili v R [2015] NSWCCA 43

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26

Ganiji v The Queen [2019] NSWCCA 208

Garcia-Gados v R; MH v R [2023] NSWCCA 145

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76

Hofer v R [2019] NSWCCA 244

Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

JM v R [2017] NSWCCA 138

JN v R [2019] NSWCCA 287

Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41

Kostov v YPOL Pty Ltd [2018] NSWCA 306

Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [87]

Libke v The Queen (2007) 230 CLR 559; [2009] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

McNamara v Consumer Trade and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

MRW v R [2011] NSWCCA 260

Ngatayiv The Queen (1980) 147 CLR 1, [1980] HCA 16

Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

PFC v R [2011] NSWCCA 275

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v Kent (unreported, 25 September 1996)

R v Khallouf [1981] VR 360

R v Presser [1958] VR 45

R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7

R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283

R v Stephen Mifsud (Court of Criminal Appeal (NSW), 8 November 1995, unreported)

R v Subramanian [2002] NSWCCA 372

R v Tier (2001) 121 A Crim R 509; [2001] NSWCCA 53

Robinson v R [2008] NSWCCA 64

SC v R [2023] NSWCCA 60

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40

TK v The Queen (2009) 74 NSWLR 299; [2009] NSWCCA 151

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Tuigamala v R [2006] NSWCCA 380

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

WR v R [2023] NSWCCA 38

Xie v R [2022] NSWCCA 185

Texts Cited:

Hansard, Legislative Assembly, 3 June 2020, 2352-2353

Perry Herzfeld and Thomas Prince, Interpretation (2nd edition, Lawbook, 2020)

Category:

Principal judgment

Parties:

William Keith Roberts (Appellant)
Rex (Respondent)

Representation:

Counsel:
T Game SC and D Barrow (Appellant)
E Balodis and S Lind (Respondent)

Solicitors:
Blair Criminal Lawyers (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/304476

Publication restriction:

See judgment at [141]-[143] and [324]-[325]

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

2-3 December 2021

Before:

Hock DCJ

File Number(s):

2016/304476

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted of three counts of historical sexual abuse of his daughter following a trial by jury in the District Court. The applicant was 84 years old at the time of trial. He gave evidence. The applicant’s manner of presentation, and his denials that he had given earlier evidence in a particular way, were relied upon by the Crown in support of the contention that the applicant was lying in his evidence. He was found guilty on three counts and not guilty on two other counts, and sentenced to an aggregate prison term of five years with a non-parole period of two years.

The applicant sought leave to appeal from his convictions on two grounds:

(1) that a miscarriage of justice occurred by reason of the fact that the appellant was not or may not have been fit to stand trial;

(2) that the guilty verdicts on two counts are unreasonable or cannot be supported having regard to the evidence.

In relation to the first ground, after the jury verdicts and prior to the applicant being sentenced, medical reports were obtained revealing that the applicant suffered from dementia at the time of the trial which affected his fitness to be tried. The issue of the applicant’s fitness to be tried was not raised at the trial and was first raised on appeal. In the hearing of the appeal evidence was given by three experts as to the applicant’s fitness. The applicant’s solicitor and senior counsel at trial also gave evidence. Audio recordings of the applicant giving evidence at trial was also relied upon.

The legal test to be applied when fitness is first raised on appeal was addressed in R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [31] as follows: if there is material “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”. RTI involved a consideration of the provisions under the Mental Health (Criminal Procedure) Act 1990 (NSW) which, prior to amendment on 1 January 2006, provided that the question of a person’s unfitness to be tried for an offence was in general to be determined by jury. The regime was amended on 1 January 2006 to be judge alone. The successor legislation – which the parties accepted applied to this matter – also provided for it to be a judge alone issue: the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act), s 44.

The Court upheld ground 1 of the appeal by majority (per Yehia J, Davies J agreeing, Kirk JA dissenting), but unanimously dismissed ground 2 (per Yehia J, Kirk JA and Davies J agreeing):

As to Ground 1

Per Yehia J:

1. The test in RTI should be applied. While not the primary position, the legislation considered at the time of RTI provided that a person’s unfitness to be tried for an offence could be determined by the judge alone if the person so elected, subject to some conditions: at [163].

2. The question of principle that an appellate court engages in is not based upon the identity of the decision-maker, but on whether a miscarriage of justice has been occasioned: at [160] and [168].

Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29; R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283; R v Subramanian [2002] NSWCCA 372; R v Stephen Mifsud (Court of Criminal Appeal (NSW), 8 November 1995, unrep), considered.

3. The decision in RTI has been applied in a number of subsequent decisions of this Court and in none of these cases was the identity of the decision-maker a relevant consideration as to the appropriate test to be applied: at [170]-[165].

R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7; Robinson, Clifford Mark v R [2008] NSWCCA 64; JM v R [2017] NSWCCA 138; Hofer v R [2019] NSWCCA 244; Kostov v YPOL Pty Ltd [2018] NSWCA 306.

4. The issue of whether the RTI test was the applicable test was not fully argued: at [172]. The question of efficiencies and judicial resources, while important, is not the primary consideration: at [176].

5. The evidence before this Court raises a question about the propriety of the conviction because the applicant may have been unfit to stand trial: at [172]. The opinions expressed by two of the three medical experts are a sufficient basis to conclude that the RTI test is met: at [173].

6. The applicant’s “argumentative and obstructive” presentation, and his denials that he had given earlier evidence in a particular way, were seized upon by the trial Crown in support of the contention that the applicant was lying in his evidence: at [193]. The jury did not know that the applicant had dementia: at [199].

Per Davies J:

7. The identity of the decision-maker was never a relevant consideration for the determination of the correct test in circumstances such as the present: at [145]. RTI has been followed by decisions of this Court a number of times since 1 January 2006. Any departure would require the present Court to conclude that those decisions, and possibly RTI and Rivkin, were plainly wrong, and compelling reasons are required to depart from them: at [146].

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75; Garcia-Gados v R; MH v R [2023] NSWCCA 145, cited.

8. Where the test laid down by RTI and the cases which followed it is derived from what must be regarded as “seriously considered” dicta, it cannot be said that the cases which have relied upon RTI, or RTI itself, are plainly wrong.

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29, considered.

Per Kirk JA, dissenting:

9. Whether there was a miscarriage of justice at the trial concerning the fitness of the applicant fell to be determined by reference to the Act: at [8] and [12].

10. RTI is founded on a line of High Court decisions. No question arises of whether or not High Court authority is plainly wrong; that authority must be followed if applicable. The question is whether the approach adopted in those cases is distinguishable. It is. The cases applied statutory provisions which required that the decision on fitness (if reasonably open) be taken other than by a judge, and that is no longer the case. No decision has considered the issue of whether the change in statute means the RTI approach is no longer applicable, and the issue is thus open: at [39]-[45].

Coleman v Power (2004) 220 CLR 1; McNamara v Consumer Tribunal (2005) 221 CLR 646; [2005] HCA 55; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36, applied

11. Decisions of this Court arguably take divergent approaches in applying the RTI approach which suggests that clarification of the law is required: at [39]. There is a distinct oddity in that the “correctness” standard of appellate review would have applied if a judge had found an accused to be fit for trial: at [41]. Yet simply because the point was not raised below then the RTI approach should be applied which might encourage parties to decide not to take the point at first instance for strategic reasons: at [42]. Moving to a more general focus on whether there is a miscarriage of justice better accommodates the range of complexities that may be raised in connection with a fitness ground: at [51].

Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40; Feili v R [2015] NSWCCA 43; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7; JM v R [2017] NSWCCA 138; PFC v R [2011] NSWCCA 275; Tuigamala v R [2006] NSWCCA 380, considered

12. Where a miscarriage of justice arises from the applicant’s fitness to be tried with factual matters the subject of tested evidence in the appeal court, then miscarriage will only be made out if the Court is satisfied that the applicant was not fit to be tried or sufficiently persuaded that it appears unjust or unsafe to allow the verdict to stand: at [51], [52], [65].

MRW v R [2011] NSWCCA 260; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

13. The applicant suffered from dementia at the time of the trial. How that affected the applicant is a question of degree: at [133(3)]. The applicant was occasionally argumentative and non-responsive. Some of this may have been due to dementia: at [31], [76], [106], [109]. However, there is little in the transcript to differentiate it from many other witnesses who are not suffering from cognitive impairment: at [126(8)]. The applicant’s capacity to give evidence was somewhat affected by his dementia, and reduced in comparison to if he gave evidence without that condition. But that does not suffice to establish that he was not fit to be tried. The legal requirement sets a minimum standard, not a relative one: at [127]. The applicant gave evidence over an extended period which, by and large, was coherent, clear and sometimes detailed. He was able to follow the course of the proceedings. He was able to make a defence or answer to the charge. He provided his version of the facts to the Court at length: at [132]. He was fit to be tried and there was no miscarriage of justice.

R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7, considered.

As to Ground 2

Per Yehia J (Kirk JA and Davies J agreeing):

14. The verdicts on counts 1 and 5 were not unreasonable. Where a witness’s reliability is in issue, his or her inability to recount some events as clearly as others, or inconsistencies evident between accounts, will not necessarily lead to a conclusion that the witness is unreliable on all matters: at [306].

Barney v R [2023] NSWCCA 85; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Mackenzie v The Queen (1996) 190 CLR 348 at 365; [1996] HCA 35 considered.

15. There were differences in the evidence in support of the separate counts, capable of reconciling the different verdicts. It was open to the jury to find that the complainant was misremembering or conflating the two occasions in the separate counts: at [308].

16. The not guilty verdicts in relation to two counts does not lead to a conclusion that the jury ought to have rejected the complainant’s evidence in relation to all counts: at [314].

JUDGMENT

1. KIRK JA: In December 2021 the applicant, Mr William Roberts, was found guilty of three counts of sexual abuse of his daughter, after a trial by jury in the District Court. He was found not guilty of two other counts. The counts related to offences said to have occurred in the late 1970s through to the mid 1980s. He was convicted and sentenced to an aggregate prison term of five years with a non-parole period of two years. At the time of trial the applicant was 84 years old. He has recently turned 86. He had served some 13 months of his sentence when he was released on bail: WR v R [2023] NSWCCA 38.

2. The applicant seeks leave to appeal his convictions on two grounds:

1. that a miscarriage of justice occurred by reason of the fact that the appellant was not or may not have been fit to stand trial;

2. that the guilty verdicts on counts 1 and 5 are unreasonable or cannot be supported having regard to the evidence.

3. The hearing of the application took place over two days – the first day involved hearing evidence going to the first ground and the second day involved submissions. Neither side objected to any part of the other’s evidence. The applicant called expert evidence from a psychiatrist, Dr Olav Nielssen, and a geriatrician, Dr Tuly Rosenfeld. In response, the Crown called evidence from a psychiatrist, Dr James Baée. The three experts gave oral evidence concurrently. The Court had the benefit of seven expert reports from the three doctors, along with a memorandum which they jointly prepared recording their areas of agreement and disagreement. The applicant also called evidence from the applicant’s legal representatives at his trial, his solicitor Mr Greg Walsh and counsel Mr Matthew Johnston SC. Both are very experienced criminal law practitioners.

4. The issue of fitness to be tried was not raised at the trial despite the fact that both Mr Walsh and Mr Johnston gave consideration to the issue. This Court addressed the legal test to be applied when fitness is first raised on appeal twenty years ago in R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [31]. The test there stated has been applied – or at least has been said to have been applied – in a number of cases subsequently. However, the statutory context has changed since that case, and the cases on which it was founded, were decided. Given that change the RTI test is not binding in this matter. The test been inconsistently applied and there are other reasons it should no longer be followed.

5. The question in a case such as this is whether a miscarriage of justice has been established, at the least in the sense that it appears unjust or unsafe to allow the verdict to stand. Applying that approach, ground 1 is not made out. The applicant was fit to be tried at the time of his trial.

6. As for ground 2, having reviewed all of the evidence, in my view it was open to the jury to be persuaded of the applicant’s guilt on counts 1 and 5 beyond reasonable doubt. I agree with the reasons of Yehia J in that regard.

7. In what follows I will first discuss the relevant legal principles then consider whether a miscarriage of justice has been made out in this case on ground 1. At the end of the judgment I address the orders that should be made, including as to non-publication orders. Annexure 1 to the judgment is a table setting out portions of transcript of the trial which were given some emphasis by the parties, with my observations on those portions.

Legal principles

What legislation applies?

8. The applicant’s trial before a jury in the District Court commenced on 15 November 2021. The verdicts were given on 2 and 3 December 2021. He had first been arraigned in the District Court some years earlier. Both sides accepted that the issues concerning the fitness of the applicant fell to be determined by reference to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). They were correct to do so.

8. That Act commenced operation on 27 March 2021, prior to the jury trial commencing but after the applicant had first been arraigned. Part 4 of the Act is headed “Fitness to stand trial”. That issue had previously been regulated by Part 2 of the predecessor legislation, the Mental Health (Forensic Provisions) Act 1990 (NSW) (the 1990 Act), which had earlier been known as the Mental Health (Criminal Procedure) Act 1990.

9. The first section of Part 4 of the Act, s 35, provides that it applies to criminal proceedings in the District Court and Supreme Court. Schedule 2 of the Act contains savings and transitional provisions. Within Sch 2, cl 1(1) provides that the regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Act, but the Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021 (NSW) makes no such provision relating to the operation of the Act (reg 32 has such a provision relating to the previous regulation). The issue of the operation of Part 4 of the Act is addressed by cll 7 and 7A of Sch 2 of the Act, each of which was in place from the commencement of operation of the Act:

7 Application of new Act to existing proceedings where unfitness to be tried raised

(1) This Act extends to proceedings for offences commenced and not completed before the commencement of Part 4 of this Act if the question of the defendant’s unfitness to be tried was raised before that commencement.

(2) Without limiting subclause (1), an inquiry or a special hearing commenced under the former Act and not completed before that commencement is to be continued in accordance with this Act.

7A Application of Part 2 of former Act to particular persons

(1) Part 2 of the former Act is to continue to apply to existing proceedings as if the former Act had not been repealed.

(2) In this clause—

existing proceedings means criminal proceedings—

(a) in which the court has, before the commencement of this Act, nominated a limiting term in respect of a person, and

(b) in which the court has not made an order under section 27 of the former Act in relation to the person.

11. Neither of these clauses, nor anything else in the Act, expressly addresses the question of the application of the Act to proceedings which have already commenced where the issue of fitness had not been raised. However, both clauses imply that the Act does generally apply to proceedings the hearing of which began prior to its commencement. The provision in cl 7(1) that the Act extends to proceedings for offences commenced and not completed before the commencement of Part 4 if the question of fitness to be tried was raised before that commencement implies that if the question is raised after the commencement then Part 4 also applies. And the provision in cl 7A that Part 2 of the predecessor Act is to continue to apply to existing proceedings as if the former Act had not been repealed is limited in its operation to proceedings where the relevant court has advanced a substantial way down the path of dealing with the issue under that Act. Again, that implies that otherwise the new Part 4 is to apply.

12. Thus in general, subject to the limited exception addressed in cl 7A, the new Act is to apply whenever a question as to fitness is raised in Supreme Court or District Court proceedings. Here, if the question had been raised in the applicant’s trial it is the Act which would have governed its resolution, and thus the Act must be applied in considering whether there was a miscarriage of justice at the trial related to the applicant’s fitness to be tried.

The concept of fitness to be tried

13. Section 36 of the Act provides as follows:

36 Fitness test

(1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following—

(a)   understand the offence the subject of the proceedings,

(b)   plead to the charge,

(c)   exercise the right to challenge jurors,

(d)   understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,

(e)   follow the course of the proceedings so as to understand what is going on in a general sense,

(f)   understand the substantial effect of any evidence given against the person,

(g)   make a defence or answer to the charge,

(h)   instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,

(i)   decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.

(2) This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence.

14. The terms “mental health impairment” and “cognitive impairment” are defined in ss 4 and 5 of the Act respectively.

15. When the Act was introduced the then Attorney-General, Mark Speakman MP, said in his second reading speech that the Act implemented a recommendation of the NSW Law Reform Commission that the “Presser test” be legislated: Hansard, Legislative Assembly, 3 June 2020, at 2352-2353. The considerations listed in s 36(1) are reflective of the common law’s approach to fitness to plead and to be tried: see eg R v Presser [1958] VR 45 at 48; Kesavarajah v The Queen (1994) 181 CLR 230 at 245; [1994] HCA 41; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [115] (Eastman HCA 2003). Section 36(1) crystallises grounds on which lack of fitness to be tried may be made out, although no doubt those grounds should be understood in the context of the common law (using the term “common law” here to encompass judge-made law founded on various statutory provisions). Section 36(2) makes clear that this does not exhaust the available grounds such that the common law may continue to supply content to the concept of fitness.

16. Some legal authorities have sought to maintain a distinction between the notions of fitness to plead and fitness to be tried: see eg Kesavarajah at 234 (fn 15). Others have not been so strict about that distinction: eg Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 (Eastman HCA 2000) at [21]; Eastman HCA 2003 at [114]-[115]. Part 4 of the Act does not seek to distinguish them. It treats fitness to plead as an aspect of fitness to be tried: one of the grounds on which unfitness to be tried may be made out relates to the accused’s ability to “plead to the charge” (s 36(1)(b)). In what follows I will refer only to fitness to be tried.

17. The tests for having sufficient fitness to be tried “may not be very difficult to meet”: Eastman HCA 2000 at [298] per Hayne J. Part of the reason for that is a concern for the interests of accused persons themselves, as it is not necessarily in their interests to be found to be unfit: noted in Ngatayiv The Queen (1980) 147 CLR 1 at 8-9, [1980] HCA 16; Kesavarajah at 249; Eastman HCA 2000 at [24]. Thus:

1. An accused need not have the mental capacity to make an able defence or to act wisely in their own best interest, although they must have sufficient capacity to be able to decide what defence they will rely upon and to make their defence: Presser at 48; Ngatayi at 8.

2. Complete understanding of the proceedings is not required, nor does the accused necessarily need to be able to understand the applicable law, and a person cannot escape trial simply by establishing that they have low intelligence: Ngatayi at 8-9. Whether or not the accused is legally represented may also be relevant to assessing their ability sufficiently to understand the proceedings: ibid at 9.

3. It is not unusual for the criminal justice system to have to deal with people with mental disorders, abnormalities or delusions, which may be severe, and such conditions do not of themselves prevent an accused from being brought to trial. That a mental disorder may cause the accused to conduct a defence in a manner which the court considers to be contrary to their best interests does not of itself mean they are unfit; nor does the fact that a mental disorder may produce behaviour which will disrupt the orderly flow of a trial; nor the fact that the disorder prevents the accused from having an amicable, trusting relationship with their legal representatives: Eastman HCA 2000 at [24]-[27] per Gleeson CJ; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [298]-[302].

Case law addressing when fitness is raised only on appeal

18. Whether an accused was fit to stand trial may be raised in various ways on appeal. There may for example be a challenge to a ruling made by the trial judge on the issue. Here, no ruling was made as the issue was not raised by either side in the Court below. And it has not been suggested that her Honour erred by not raising the issue herself. Rather, the claimed miscarriage is that, at least with the benefit of hindsight, the applicant “was not or may not have been fit to stand trial”. Such cases arise from time to time.

19. One such case was RTI, in which the legal representatives of the accused felt disquiet about his fitness for trial and obtained a psychologist’s report shortly after he had been found guilty of various charges at two consecutive trials, and shortly before a further trial was due to be held. The accused was subsequently found unfit for that further trial. On the appeal from the convictions in the first two trials, the Crown conceded that the accused had not been fit for trial based upon evidence that included its own expert report. Justice Howie, with whom Tobias JA and Shaw J agreed, held that the convictions should be quashed and a new trial ordered. His Honour noted at [26]-[28] that in R v Kent (unreported, 25 September 1996) this Court had considered a fitness issue raised in similar circumstances. The Court there remitted the matter to the District Court under s 12(2) of the Criminal Appeal Act 1912 (NSW) in order for there to be a fitness hearing. That Court found the person to be unfit but did not refer the accused to the Mental Health Tribunal (being the usual next step in the applicable statutory process), rather referring the matter back to this Court, which then itself referred him to the Tribunal.

20. The Court in RTI accepted the Crown’s submission that the Kent procedure should not be adopted, agreeing that under the then applicable 1990 Act, “there is no jurisdiction for a court to hold a fitness hearing after conviction” (at [28]). The procedure set out in the 1990 Act was said to be “clearly not apposite to a situation where the accused has already been convicted of the offence” (at [29]). After quoting extracts from the judgments of Gaudron and Hayne JJ in Eastman HCA 2000, and a passage from Eastman HCA 2003, Howie J said:

[31] In light of the passages quoted above from Eastman v The Queen and Eastman v DPP (ACT) it seems to me that the procedure adopted in R v Kent is no longer appropriate. 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.

21. Reflecting that approach, Howie J had earlier said at [21] that it was unnecessary for the Court to determine whether the accused had in fact been unfit for trial.

22. The applicant submitted that the “position in NSW with respect to a ground of appeal raising the possibility of unfitness at trial was definitively stated in R v RTI”. Both parties in this matter submitted that this Court should apply this approach, although the Crown suggested a willingness to depart from it when queries were raised from the bench.

23. In fact RTI was not establishing new law, and it is something of a misnomer to refer to the “RTI test”, although I will follow the parties in attaching that label to it. The Court in RTI was simply giving effect to what had been established by prior High Court authority. The passages quoted by Howie J from Eastman HCA 2003, being [114]-[115], do not appear to throw a great deal of light on the situation. Those quoted from Eastman HCA 2000 are more relevant. Those passages in turn refer to the earlier High Court decision in Kesavarajah, decided in 1994, which itself invoked the earlier High Court decision in Ngatayi.

24. In Kesavarajah the accused was convicted of a federal offence. On three occasions either the prosecutor or counsel for the accused had raised a concern about the accused’s fitness, but the trial judge rejected these – on the first occasion because his Honour considered there was no serious question to be tried, on the second because he saw no reason to reconsider his ruling, and on the third because the judge considered it did not matter as he was then summing-up.

25. The relevant federal statutory provisions addressed fitness to be tried, which was said to be an issue for the “court”, but did not indicate how that was to be determined. The High Court held that the references to “court” were capable of being read as references to a jury, thus allowing the State statutory provisions to be picked up by ss 68 and 79 of the Judiciary Act 1903 (Cth). That was the “preferable approach” because “[h]istorically, fitness to plead and to be tried has been a question determined by a jury” (Kesavarajah at 243, citation omitted).

26. The High Court noted at 239 that the Victorian Court of Criminal Appeal had “pointed out that it is important to keep two matters separate, namely, a finding as to whether a real and substantial question as to fitness exists (which is for the judge to make) and a finding as to whether the accused is or is not unfit (which is for a jury to make)” (the Victorian Court had earlier made the same point in R v Khallouf [1981] VR 360 at 364). Quoting its own earlier decision in Ngatayi, the High Court said that under the relevant statutory provisions “[o]nce a real question as to incapacity is raised, the judge must follow the procedure laid down in the section” (at 245). It indicated that when such a question is raised, “the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried” (ibid). The High Court held that the trial judge erred in his rulings, the conviction was quashed and a new trial ordered.

27. In Eastman HCA 2000 the issue, relevantly, was whether the Full Court of the Federal Court should itself have raised a question as to Mr Eastman’s fitness to have stood trial when hearing his conviction appeal, even though no such ground had been raised before it. The High Court held, by majority, that the Full Court had not erred in not doing so. Justices Gaudron, Hayne and Callinan constituted the minority. Importantly, the issue was governed by Australian Capital Territory legislation which provided that if the trial court was “satisfied that there is a question as to the person's fitness to plead to the charge” then the court was required to refer the matter to the Territory’s Mental Health Tribunal to determine whether or not the person was fit to plead. The reference to being “satisfied that there is a question” echoed other statutory provisions dealing with the issue. As just noted, in Ngatayi and Kesavarajah the High Court had indicated that once “a real question as to incapacity is raised” then it was a matter for the jury. Justices Hayne and Callinan in this case also referred approvingly to earlier authority speaking in terms of there being a “real and substantial question to be considered” (at [296] and [400] respectively, citation omitted).

28. In RTI Howie J quoted Gaudron J stating at [87] in Eastman HCA 2000 that “if there is material suggesting that the appellant was not fit to plead, an appellate court must inquire whether, at the time of the trial, the appropriate tribunal could not reasonably have found the appellant not fit to plead”. Her Honour was there reiterating what she had earlier said at [66], which she expressly based upon what had been decided in Kesavarajah. Howie J also quoted Hayne J at length. Most pertinently, Hayne J said the following at [319] (citations omitted):

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 and in intermediate appellate courts 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.

29. The remarks Howie J quoted from Eastman HCA 2000 in substance reflect the approach adopted by the High Court earlier in Ngatayi and Kesavarajah. What Gaudron and Hayne JJ explained was not new law. The approach Howie J set out at [31] of RTI reflects that established approach. However, it is important to note that under the applicable legal regimes considered in the three High Court decisions the only issue for the trial judge was whether a real/substantial question was raised as to fitness. If it was, then decision-making responsibility on the fitness issue was allocated to another decision-maker: to the jury in Ngatayi and Kesavarajah (reflecting the historical position) and to an administrative tribunal in Eastman HCA 2000. That point was not referred to in RTI.

30. Under the 1990 Act as it stood in 2003, when RTI was decided, the court was precluded from conducting an inquiry into a person’s fitness “unless it appears to the Court that the question has been raised in good faith” (s 10(2)). If an inquiry did proceed then the question of unfitness was to be determined by a jury (s 11(1)), except that if the accused and prosecutor agreed then the issue could be determined by “the Judge alone”, so long as the judge was satisfied that the accused had received legal advice on the issue (s 11A).

31. In R v Tier (2001) 121 A Crim R 509; [2001] NSWCCA 53 Sheller JA equated “good faith” as raised by s 10(2) with the notion of there being a “real” question (at [4]), and Kirby J held that the motive of raising the question will be relevant but “where there is a real and substantial question, good faith will be presumed” (at [71]). Justice Grove agreed with both judgments (at [8]). In that case this Court overturned a conviction where the trial judge had declined to refer the issue of the accused’s fitness to the jury. Justice Kirby said the following, consistently with the approach set out in the earlier High Court (and Victorian) decisions:

[84] First, it was important that his Honour maintain the distinction between his role, and that of the jury. He appears, with respect, not to have done so. Although his Honour saw himself as addressing the issue of good faith raised by s 10(2) of the Act, his investigation and determination went beyond anything required by that subsection. In his first judgment explicitly, and his second judgement implicitly, he addressed the question whether Mr Tier was, as a matter of probability, unfit to be tried. He found that he was not. That, however, was a question for the jury. His Honour recognised the possibility that Mr Tier may be unfit. That should have been enough to persuade him that the question had been raised, that it was a real and substantial question, and that good faith may be presumed.

32. The decision in RTI has been applied in a number of subsequent decisions of this Court. Notably, in Rivkin a bench comprised of Mason P, Wood CJ at CL and Sully J quoted [31] of RTI and said that it was “a correct statement of the law” (at [294]). At the very least, however, that decision illustrates that different benches have taken somewhat varying views as to how the issue is to be approached, in particular with respect to the degree to which the appeal court may make its own assessment. The accused in that case was found, post-conviction, to have had a brain tumour at the time of his trial. In unchallenged evidence two doctors “observed a distinct change in the performance of the appellant post surgery”, in particular in providing “the kind of responses that had earlier been regarded as facile, and as having been suggestive of the presence of hypomania or of the kind of disinhibition which is typical of frontal lobe derangement” (at [278]). Nevertheless, the Court held that this merely established that he had suffered from a reduction in capacity to meet the Presser requirements without meaning that he failed to meet those requirements (at [297]-[303]). The Court did not address the issue in terms of whether a real question had arisen about fitness sufficient to go to the jury.

33. JM v R [2017] NSWCCA 138 was an appeal from a case where the accused had represented himself and no issue of fitness had been raised at trial. A clinical psychologist opined in a report prepared for sentencing that the accused was “exhibiting a Mild Neurocognitive Disorder particularly affecting verbal memory and verbal executive functions” (quoted at [114]). There was also evidence from a psychiatrist prepared for the purposes of the appeal, who concluded that the accused “was by virtue of his education, intellect and knowledge lacking in the ability to understand the substantial effect of the evidence that was given and that he would not have had the capacity to have an awareness of the implications of the prosecution evidence” (quoted at [126]). However, this Court took a robust approach to the evidence and concluded at [176] that “there was no material at trial or before this Court which raised a question as to the applicant’s fitness to be tried”, it being considered “clear that the minimum standards in the Presser criteria were satisfied”.

34. Some contrast may be drawn between the approach taken in Rivkin and JM on the one hand and on the other, such as the decision in Tuigamala v R [2006] NSWCCA 380. The Court there had been presented with conflicting opinions as to the fitness of the accused at trial. McClellan CJ at CL, with the agreement of James and Hislop JJ, said resolving the differences between these views would require a hearing with “an opportunity for cross-examination” to reveal the nature of the disagreement, which was “not a task which this Court should undertake” (at [30]). Faced with a number of opinions, “some of which express in clear terms that the appellant was unfit to be tried”, “this Court must conclude that there is a real difference of opinion between the experts to which I have referred leading to the conclusion that there is a possibility that the appellant’s trial miscarried by reason of his unfitness” (at [31]-[32]). That meant “this Court has no alternative but to uphold the appeal” (at [33]). In that case, thus, the Court made clear it only needed to be satisfied that a real question arose as to the accused’s fitness at trial in order for a miscarriage to be found.

35. To take another example, in Robinson v R [2008] NSWCCA 64 Latham J, with whom Spigelman CJ agreed, concluded as follows at [79] in quashing a conviction where fitness to be tried was raised only on appeal: “I am far from persuaded that the appellant was unfit for trial in late 2006, but that is not the test. There remains the possibility that a tribunal, acting reasonably, could have taken a different view.”

36. RTI has not always been applied in subsequent decisions. In PFC v R [2011] NSWCCA 275 the accused represented himself on appeal, claiming that he had been “‘mentally ill’ due to the effects of medication that he was taking prior to and during the trial” (at [274]), and that he had felt “grandiose, irrational and hypo manic” during the trial (at [275]). A psychiatrist, applying Presser, concluded that he had been fit to stand trial (at [281]-[297]), a conclusion that the Court accepted. The Court concluded that “we do not accept that the appellant’s mental state was such that there was any miscarriage of justice” (at [280]), thus expressing the issue directly in terms of miscarriage, rather than in terms of whether a question had arisen. RTI was not cited.

37. In the hearing of this matter the Crown referred to the statement in RTI that an appeal need not be upheld if it considers that had the issue of fitness been raised in the court below “the court acting reasonably must have found that the accused was fit to stand trial”. The Crown submitted that that “simply is a delineation of this Court doing its job properly and for ‘reasonably’ one might use the word properly must have found that the accused was fit to stand trial”. In effect the suggestion is that the Court would reach its own view about the matter. That submission is not consistent with the line of case law addressed above. The notion of reasonableness can mean different things in different contexts. In some instances it produces one legal answer, such as whether or not a duty of care has been breached by the failure to exercise reasonable care: note Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9. In other situations it is used in the sense of recognising that people may reasonably reach different conclusions on an issue.

38. At least in the context in which it was used in Kesavarajah and subsequent cases it is clear that it is employed in the latter sense. The foundation of this line of authority is that decision-making authority is vested in someone other than a judge, be it the jury or a tribunal. The cases recognise that if a real question arises then it is for that body to determine. The issue of there being only one reasonable answer recognises an outer limitation on the decision-making ability of that other decision-maker. If only one conclusion could reasonably be reached, then it would be pointless in requiring the matter to go to the decision-maker because it would be bound to reach that result. The issue of fitness to be tried involves assessing facts and then testing those against a legal standard. Both aspects may involve evaluative judgments. Within the outer limit of reasonableness these were matters for the allocated, non-judicial decision-maker. That is the significance of the point made in the Victorian appeal decisions, echoed in this Court in Tier, that there is a distinction between whether a real and substantial question as to fitness exists, which is for the judge to make, and a finding as to whether the accused is or is not unfit, which was for the allocated decision-maker (historically being the jury).

Is the RTI approach distinguishable?

39. Under the now applicable Act, the “question of a defendant’s unfitness to be tried for an offence is to be determined by the judge alone”: s 44(1). It is no longer a jury question, let alone a matter for an administrative tribunal. As explained, RTI is founded on a line of decisions where the relevant primary decision-maker was a body other than a judge. RTI and the cases on which it is founded are distinguishable, and the test there adopted is not binding in this case.

40. The other members of the bench consider that it is not open or appropriate to consider whether the RTI approach should be departed from here: Davies J at [145]-[148] and Yehia J at [160]-[176]. I respectfully disagree.

41. Whilst it is true that at the time RTI was decided there was the possibility of a mutual election to be made for a question of fitness to be determined by a judge alone, that was not the primary position. In any case, as noted above, RTI is just a reflection of High Court authority and in those decisions there was no such possibility of election. Moreover, the Court in RTI did not consider the issue of whether the possibility of the issue being determined by a judge alone was a basis for taking a different approach. A “case can have no wider ratio decidendi that what was in issue in the case”, and “[c]ases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue”: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79] per McHugh J; see further eg CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]-[14]. As Leeming JA put it in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [87], “[t]he precedential authority of a decision depends upon the issues raised before the court”.

42. Such authorities also answer the suggestion that the fact that RTI has been applied regularly since it was decided means that it must be followed here. No authority has been identified where it was suggested or considered that it should not be followed because of the change in the identity of the decision-maker. Subsequent authority seems simply to have assumed that the RTI approach remained applicable. A “proposition of law assumed by a court to be correct without argument – ie a proposition ‘not in issue’ – does not bind lower courts”: Perry Herzfeld and Thomas Prince, Interpretation (2nd edition, Lawbook, 2020), [33.80]. Nor, of course, does it bind the Court itself.

43. No possible question arises about whether either RTI, or the cases which follow it, should be regarded as plainly wrong. The RTI approach is founded on High Court decisions, which must be followed if those decisions cannot be distinguished. The question is whether the approach accepted in those cases is distinguishable from the matter now before this Court. It is. It should be recalled that in Ngatayi the High Court said that “[o]nce a real question as to incapacity is raised, the judge must follow the procedure laid down in the section” (at 9, emphasis added). That procedure involved having the issue determined by a jury. As the Court went on to say, “[t]he judge should then leave the issue to the jury unless on the facts as stated no reasonable jury, properly instructed, could find that the accused was not capable of understanding the proceedings so as to be able to make a proper defence” (ibid). The need to take this approach was reiterated by the Court in Kesavarajah at 245, then echoed by Gaudron and Hayne JJ in Eastman HCA 2000.

44. The approach at issue is thus clearly founded on particular statutory provisions which required that the issue be determined by a decision-maker other than the trial judge, subject to the High Court’s recognition that that was only required if a real question arose as to incapacity. That approach cannot be determinative where the current statutory scheme is different and does not allocate primary decision-making responsibility to someone other than the judge. As the High Court said in McNamara v Consumer Trade and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55 at [40], “[i]t would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions”.

45. It is true that the applicability of RTI was raised by the Court not the parties. But they were provided with the opportunity to be heard on the issue. It is not the case that the applicant might have sought to lead further evidence if the issue of fitness arose more directly than merely asking if a real question arose. The evidence he led went, in terms, to the applicant’s fitness to be tried. Further, the appeal ground in question states that “[a] miscarriage of justice occurred by reason of the fact that the appellant was not or may not have been fit to stand trial”. The applicant’s case was not founded only on whether a real question having arisen as to fitness; it was that in any event he was not fit to stand trial. Thus, when the possibility of applying a different approach to RTI was raised in the course of the hearing, senior counsel for the applicant summarised his client’s position by saying that “we say that we can readily establish that he was unfit but we are contending that there's a lesser standard”.

Matters for and against applying the RTI approach

46. Having concluded that it is open to consider whether the RTI approach should be applied, the question then is whether it should be. There are matters suggesting the application of that test should be reconsidered in light of the new statutory regime. To begin with, the fact that decisions of this Court arguably take divergent approaches in practice – Rivkin and JM as against say Tuigamala – suggests that clarification of the law is required.

47. More fundamentally, the premise of the RTI line of authority is that the primary decision-maker on fitness is a body other than a judge, and the independent decision-making role of that body must be respected. That premise no longer applies.

48. Senior counsel for the applicant agreed that if a judge had found an accused to be fit for trial and that decision was the subject of complaint then the “correctness” standard of appellate review would apply, that is, the appeal court would determine for itself whether that decision was correct whilst making due allowances for the natural advantages of the trier of fact. An analogy may be drawn in that regard with the approach taken to appellate review of whether tendency evidence is of significant probative value, being a question “to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ”: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]. (I note that in Feili v R [2015] NSWCCA 43 at [54] review of a trial judge’s determination of fitness was approached as one involving House v The King principles, but that was prior to Bauer and the issue was little addressed). On an appeal from such a determination of fitness, thus, the appeal court would consider the question of fitness for itself in light of the evidence below. There would be no deference shown to the decision-making authority allocated to a non-judicial decision-maker. Yet showing such deference is fundamental to the line of authority addressed above.

49. If the issue of fitness in this matter had been raised in the course of the trial below it would have been determined by the trial judge and any appeal to this Court would have involved the correctness standard of review. Yet, because it was not raised, all that the applicant would need to show on the RTI approach is that a real and substantial question is raised as to whether the applicant had been fit to be tried, which would suffice to uphold the appeal unless the facts are so clear that no reasonable judge could have concluded that he was not fit. There is a distinct oddity in it being easier to make out a ground of appeal because the point was not raised below than it would have been if the point had been raised. That oddity might encourage parties to decide not to take the point at first instance for strategic reasons (no suggestion is made that that occurred here). That oddity was not addressed in RTI or the related cases. If the point had been raised no doubt the answer would have been that it was a consequence of respecting the unfulfilled role of the primary decision-maker on the issue, being the jury or tribunal. That answer no longer applies.

50. Moreover, whilst in Tuigamala this Court did not have the benefit of cross-examination, this matter was listed at the parties’ request for two days, the first of which was mainly taken up with examination and cross-examination in concurrent session of the three experts, each of whom had provided written reports. The question they were all addressing was whether the applicant was fit to be tried at the time of his trial. This Court is in as good a position as any court to reach a conclusion on the issue. To repeat the exercise before the District Court would be wasteful of the resources of the parties and the courts. Moreover, the District Court would be addressing a different issue, being fitness at that future time, as opposed to fitness at the time of the trial (see further below at [55]). For a condition such as dementia a person’s fitness may deteriorate over time.

51. The RTI approach might also be regarded as overly prescriptive. It is focused just on the one issue of fitness to be tried. At least in some cases the issue may have additional dimensions. Indeed, as shall be seen, this case is an example of one where the claimed miscarriage raises issues beyond fitness per se, in that a concern was raised about a submission made by the prosecutor in light of the subsequent evidence about fitness. Moreover, issues of fitness are not always all-or-nothing. So much is recognised in the case law referred to above at [17], acknowledging that it may be relevant whether or not the person was legally represented. That reflects the fact that difficulties may be capable of being ameliorated or overcome. A person with significant hearing difficulties may not be fit to be tried because they cannot follow what is occurring in court unless special measures are taken to overcome their difficulty. Moving from the RTI approach to a more general focus on whether a miscarriage of justice is made out better accommodates such additional dimensions and complexities.

52. On the other side of the ledger, it might be argued that to apply a more intensive level of review in this Court than RTI envisages would be to involve this Court in having to resolve to finality significant factual questions involving expert evidence, where it might be more efficient to have that determined by one judge rather than three. There is some force in that point; Tuigamala, for example, was readily decided in an ex tempore judgment without cross-examination. The judicial resources utilised in this case results from the approach taken by the parties, acceded to by the Court in agreeing to a request to list the matter for two days. That being said, this type of case is not common, so the usage of judicial resources must be seen in that light. Further, under s 12(1)(d) of the Criminal Appeal Act the Court may refer “any question arising on the appeal [which] involves prolonged examination of documents or accounts, or any scientific or local investigation” for inquiry and report to a commissioner appointed by the Court (and see further Supreme Court (Criminal Appeal) Rules 2021, rules 4.2 to 4.12). The commissioner then reports back to the Court, which may act upon the report as it sees fit. The process is similar to obtaining a referee’s report in the civil sphere. Issues relating to fitness could be referred to a medical expert or to a retired judge.

53. Another possible argument against reconsidering the RTI approach is that it was suggested in that case at [28] that a difficulty arose because the then legislative scheme provided no jurisdiction for a court to hold a fitness hearing after conviction. The same is true under the present Act. But the point is unpersuasive. The issue on appeal is whether there has been a miscarriage of justice, where that issue turns (one way or another) on the accused’s fitness. The hearing held in this Court is held pursuant to jurisdiction and powers granted by the Criminal Appeal Act.

54. Relatedly, Howie J said in RTI at [29] that if an accused was found to be unfit under the then Act then certain statutory procedures followed, including being referred to the Mental Health Tribunal where, in certain circumstances, a “special hearing” would be held. His Honour said that such provisions could not sensibly be applied after the person had been convicted. The current provisions under the Act are similar. However, this point has limited force. If there was found to be no miscarriage then the appeal would be dismissed. If a miscarriage was made out by reference to issues of fitness then the relevant remedy of this Court is that which was applied in Kesavarajah and RTI, namely to quash the conviction and order a retrial in the court below, on the understanding that the issue of fitness would then be considered by the court below (assuming that the prosecution were maintained). Because this Court is not engaged in an appeal by way of rehearing (see below at [58]) it is not its role to complete a process that should have occurred below. That remains the case even if a more intensive level of review were applied in this Court than indicated in RTI.

46. If this Court found that the accused in fact had not been fit for trial its order is directed to the conviction. The case would thus appropriately return to the trial court on an order for retrial. That court would then have to redetermine the issue for fitness itself. That court would not be bound by the determination of this Court, because the temporal focus is different. This Court is concerned with whether the accused was fit to be tried at the time of his past trial – a backwards looking inquiry. The trial court, on a retrial, is concerned with the present, namely whether the accused is now fit for trial. Only if the trial court found that the accused was not then fit would the further statutory questions and procedures arise, such as considering whether the accused may become fit to be tried within 12 months (s 47(1)).

47. Taking a more intensive approach to review than was indicated in RTI thus does carry with it the potential for some overlapping use of resources at appellate and trial level. But there is also overlap on the RTI approach, if this Court merely determines whether there is a reasonable possibility that the accused was not fit and then sends it back for a retrial.

Assessing miscarriage of justice in a case such as this

57. If RTI were not followed, how would or should the issue be approached? The issue is what level of persuasion is required as to whether or not the applicant was unfit to be tried at the time of his trial.

58. The task for this Court when hearing an appeal from a criminal conviction pursuant to ss 5-6 of the Criminal Appeal Act is not to engage in an appeal by way of rehearing; rather, it is to consider whether any relevant error or ground is made out which falls within any one or more of the three limbs of s 6(1), and then potentially to consider the proviso: see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [4], [6]-[15], [48] and [81]-[89]; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [37]-[39].

59. Here it is the third limb of s 6 which is invoked, that is, that “on any other ground whatsoever there was a miscarriage of justice”. It “is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula”: Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [6] per Gleeson CJ; see also Gallagher v The Queen (1986) 160 CLR 392 at 395; [1986] HCA 26. In Nudd at [4] Gleeson CJ quoted Davies and Cody v The King (1937) 57 CLR 170 at 180; [1937] HCA 27, in which the High Court said that an appeal court:

will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.

60. A central aspect of the notion of miscarriage is a departure from the requirements of a fair trial according to law, being a departure which had the capacity to have caused prejudice or practical injustice to the accused: Nudd at [6]-[7] and [24]; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18]; Filippou at [13]-[14]; Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [41], [111]-[115], [125], [130]; Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74]. A miscarriage of justice may be made out even if no error is established in any decision of the court below based on the material before that court: note Nudd at [7]; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [30]; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [54]. Thus, for example, a miscarriage may be made out by reference to fresh evidence not available at the trial.

61. In this case no error is alleged in what was decided below. No issue of fitness was raised with the trial judge and it is not argued that her Honour erred in not raising the issue herself. The miscarriage alleged is that “there has been a trial where there should not have been”: Eastman HCA 2000 at [317] per Hayne J. In that way, it is said, there has been a departure from the requirements of a trial according to law, in that the trial should not have taken place if the law had properly been applied. As Gaudron J put it in Eastman HCA 2000 at [64], one aspect of the requirement of a fair trial according to law is that the trial cannot proceed unless the accused is fit. If the person was not fit to stand trial then the trial is a nullity, and “that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law”: ibid at [63]. For that reason the proviso cannot be applied, as “a person who is unfit to be tried should not be subjected to trial resulting in the risk of his or her conviction. The proviso is not directed to such a situation”: Kesavarajah at 248; see also Eastman HCA 2003 at [115].

62. Where a miscarriage is said to have occurred in light of fresh evidence provided to the appeal court, the relevant question asked is whether there is a significant possibility that the jury acting reasonably would have acquitted the appellant: MRW v R [2011] NSWCCA 260 at [46]-[54], and authority there cited. In Eastman HCA 2000 at [323], Hayne J referred to that test but distinguished it. His Honour seemed to regard that test as somewhat more difficult to establish than the formulation of whether the decision-maker, acting reasonably, could have found the accused fit to stand trial. Any such difference is subtle. In any event, the significant possibility test relating to fresh evidence again is founded on recognition of the fact that the ultimate decision-maker (relevantly of guilt or innocence) is not in general a judge but the jury. The ultimate significance of any such fresh evidence is a jury question. That test, like the approach his Honour favoured for fitness (and adopted in RTI), is inapposite under the new statutory regime in this State where fitness questions are to be determined by judges.

63. Senior counsel for the applicant not only sought to draw an analogy with fresh evidence cases but also to instances of a judicial discretion having miscarried in the trial court. Again, however, such cases involve recognising that the decision-maker had room to make their own evaluative or discretionary decision, where an appeal court engages in a limited form of review on appeal. As already noted, the applicant’s senior counsel accepted that the correctness standard of review would apply to a judicial decision by a trial court on the issue of fitness.

64. Senior counsel then submitted that in a case such as this the trial “miscarried because of an undetermined question that should have been determined”, namely fitness. That may be so, but how that question should have been determined is an issue capable of being addressed by this Court (given appropriate evidence) in circumstances where the point would have been determined by a judge had it been raised, and could have been the subject of full appellate review in this Court if that determination had then been appealed.

65. The ultimate legal question in a case such as the present is the statutory one: has a miscarriage of justice been made out? In circumstances where the issue is whether or not the applicant was fit to be tried, and where the factual matters involved in that issue are the subject of tested evidence in the appeal court as in this case, then miscarriage will only be made out if the appeal court is satisfied that the applicant was not fit to be tried or, at least, is sufficiently persuaded of that conclusion that “it appears unjust or unsafe to allow the verdict to stand” (to quote Davies and Cody). That, in my view, is the correct approach to apply in this case. The RTI test is not apposite given the changed legal context in which the issue now has to be considered. Where the issue has been tested in the manner that occurred in this case there is no reason for the Court not to determine the issue of fitness itself. Indeed, given the statutory context that now exists, it would be contrary to the interests of the administration of justice merely to determine whether a real question was raised as to fitness, then to send the matter back to the District Court, which will then determine fitness at a different point in time where the applicant’s fitness may well have diminished. That may mean that a person who was in fact properly tried and convicted has his conviction quashed and with no retrial (but rather the potential application of other measures under the Act).

Was there a miscarriage of justice here?

66. The trial of the applicant commenced before the jury on Monday 15 November 2021. The jury first retired to consider its verdict just before lunch on Friday 26 November. The jury delivered unanimous verdicts of not guilty on count 2, and guilty on count 3, on Thursday 2 December 2021. The next day it delivered majority verdicts of guilty on count 1, not guilty on count 4 and guilty on count 5.

67. The applicant was aged 84 at the time of the trial. It is now evident that he has, and then had, some degree of dementia. The Crown did not dispute that as at the time of trial he had a “cognitive impairment” within the meaning of s 5 of the Act. The focus of the parties’ submissions, by reference to s 36(1) of the Act, was whether the applicant could not do one or more of the following at the time of trial:

(e)   follow the course of the proceedings so as to understand what is going on in a general sense, …

(g)   make a defence or answer to the charge,

(h)   instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary

68. Both parties accepted that these criteria should be understood in the context of the general case law relating to fitness.

69. The applicant relied on three main sources of evidence: evidence from the solicitor and senior counsel who represented him at the trial; evidence from the hearing below; and evidence from the experts. He also relied on certain closing submissions to the jury made by the Crown. The focus of the applicant’s evidence and argument was not on his ability to give instructions, identify his defence, or to follow the course of the proceedings generally; rather, it was on his ability to give evidence.

Evidence from the legal representatives

70. The applicant was first charged in 2016. Mr Walsh acted for him from then until shortly before the hearing of this appeal. The trial was much delayed, seemingly for a range of reasons. The applicant suffered a stroke in September 2018. Mr Walsh gave evidence that after the stroke he found the applicant to be somewhat slower in his responses, and that he would tend to ruminate about the issues, but he did not consider that the question of his fitness to stand trial arose at that time. However, Mr Walsh had written a letter to Mr Johnston in September 2020 saying that the applicant had been manifesting symptoms of confusion and agitation over several days, and saying he had suggested that an urgent neurological referral be obtained. It appears that did not occur.

71. Mr Walsh gave the following, frank evidence:

Your Honours, as I think I've indicated in my affidavits, and I suppose in retrospect, I didn't adequately apply myself to these issues. I found the case and the issues that arose in the course of the case at times to be very difficult, even though I'm a very experienced lawyer, and my state of mind is such that I think I should have done more to properly investigate these issues.

72. After the trial commenced in November 2021 Mr Walsh became concerned about the applicant’s cognitive functioning. He raised this concern with Mr Johnston, who indicated that he considered it was not sufficient to impact upon the applicant’s fitness to be tried. However, as the trial progressed, Mr Walsh became increasingly concerned about the issue. He arranged for a CT brain scan to be conducted on 17 November 2021, two days after the jury trial had commenced. The report on the scan was that “findings are stable and compared to September 2020, there is no acute intercranial pathology”. Mr Walsh indicated that in the context of the trial having already commenced it was practically impossible to arrange a neuropsychological assessment of the applicant. In light of the results of the scan Mr Walsh and Mr Johnston agreed that there was insufficient evidence that the applicant was not fit for trial.

73. As the applicant gave his evidence on 23 November 2021, Mr Walsh’s concerns about the applicant’s fitness returned. After the jury verdicts and prior to the applicant being sentenced, Mr Walsh obtained reports from Dr Rosenfeld and Dr Nielssen in late January and early February 2022. Mr Walsh said that it then became apparent to him that the applicant suffers from dementia and that there had been a serious issue as to his fitness to be tried. By that point he considered it too late to raise the issue with the trial judge.

74. Mr Walsh offered various observations on the manner in which the applicant gave his evidence, but those issues are best addressed by direct reference to the evidence of the applicant. What is worth noting is that Mr Walsh’s concerns about the applicant’s fitness related in particular to the way he would interact with others, rather than with respect to his ability to understand the issues raised by the proceedings, decide how to address the proceedings and give instructions accordingly. He considered that the applicant had a tendency to “orally ruminate and digress about topics”, made some inappropriate comments from the dock, and in giving evidence gave some answers and sometimes manifest a demeanour which Mr Walsh considered inappropriate.

75. Mr Walsh accepted in cross-examination that he had had a number of discussions with the applicant and with Mr Johnston about whether the applicant should give evidence, addressing the pros and cons of doing so. The negatives included the applicant’s occasional confusion, his tendency to ruminate in the sense of going on at length and not addressing the topic, and that he would comment inappropriately on issues. Even allowing for the negatives, the joint advice of the two lawyers was that it was important for the applicant to give evidence.

76. Mr Johnston had had less extensive contact with the applicant than Mr Walsh, first meeting him in September 2020. His evidence as to the course of events was consistent with that of Mr Walsh. He said that the applicant gave answers when in conference that were sometimes unresponsive and tangential, and the applicant was sometimes confused. However, he does not suggest that this was sufficient to undermine the applicant’s ability to understand the issues raised by the proceedings, decide how to address the proceedings and give instructions accordingly. He stated that had the reports of Dr Rosenfeld and Dr Nielssen been available to him at the time of the CT scan, he would have sought further expert advice on the question of the applicant’s fitness to stand trial.

77. All this evidence should be accepted. It reveals that Mr Walsh, in particular, had a real concern about fitness during the course of the trial but, beyond obtaining the brain scan, did not otherwise seek to address the issue. It was implicit in Mr Walsh’s statement that it was impossible to arrange a neuropsychological assessment that merely obtaining a CT scan was not the best means of testing the issue. In any event, there is no suggestion that either the applicant or his lawyers chose not to raise the issue of fitness for strategic reasons. As explained, the main concern the two lawyers raise relates to the ability of the applicant to give evidence and the manner in which he presented to the jury.

Evidence from the trial

78. A significant focus of the applicant’s submissions was directed to aspects of how he gave his evidence. The Crown tendered a USB stick containing an audio recording of the applicant’s evidence in the Court below, and asked members of this Court to listen to relevant portions of it to consider the strength of the points raised by the applicant. In the hearing this Court pointed out that the High Court has indicated that in general appellate courts should not review a video-recording of a person giving evidence, in particular lest it usurp the role of the jury as fact-finder: Pell at [36]-[39]. The High Court indicated that such recordings should not be reviewed when considering unreasonable verdict grounds. However, it also accepted that there could be exceptional circumstances in which some distinct forensic purpose could justify such a course. Here, the applicant agreed that it was appropriate that the Court listen to the audio-recording for the purpose, only, of considering ground 1 of the appeal, whilst then setting aside any impressions formed when considering ground 2 (being the unreasonable verdict ground). Given that agreement, I have listened to portions of the recording covering, and in the vicinity of, the parts of the transcript on which either side relied for the purposes of ground 1 (and only for the purposes of that ground).

79. In the table set out as Annexure 1 to this judgment I set out extracts of the transcript (in column 1) which were the subject of particular attention in submissions. In column 2 I set out the transcript reference, a summary of relevant submissions by either side, and my observations (in column 1) having read the transcript in context and listened to the recording covering that transcript. In some instances I have also included comments by the experts on the testimony in question.

80. As set out in the table, in a half dozen of the identified occasions the applicant manifested some difficulties of memory and/or some degree of confusion as to the questioning, and in a couple of instances his answers were somewhat unresponsive to the question asked. On the other hand, as the Crown pointed out, in a number of other instances he gave reasonably detailed answers to historical questions, and on at least one occasion corrected a mistake made by the questioner.

81. The most significant failure of memory was that the applicant made a statement in his examination in chief relating to the incident where he allegedly touched his elder daughter’s breasts, that statement being “I assumed she was thinking that I had touched her on the breast, and I said, ‘I did not’”. He was asked about this in cross-examination and denied having said that, adding that it “would be a silly thing for me to say”. After a short break the court recording was played back to him, he said “now we know”. Overall he seemed somewhat confused on this issue. As discussed below, the Crown gave some emphasis to this exchange in closing address.

82. As indicated above, Mr Walsh offered various observations of his own on how the applicant had given evidence, but the better evidence is the transcript and recording themselves. That being said, his response to a question asked by Davies J is noteworthy:

Q. You've probably read far more transcripts than I have and seen far more witnesses, but in terms of lack of inhibition, there's very little in this transcript generally compared with what you might see from plenty of other witnesses who are not suffering from cognitive impairment.

A. I think that's a fair observation and comment your Honour. I think I answered it to the best I can to say that the way he answered a number of the questions [was] disinhibited. …

83. For my part, I do not consider that the transcript or recordings manifest signs of substantial disinhibition.

84. My overall impression from the portions of the recording I listened to, and having reviewed the entire transcript, is as follows. The applicant was sometimes slow in his manner of giving evidence, although this did not involve long pauses. He did not come across as incoherent or rambling, nor did he seem excessively to ruminate on any particular issue, with the notable exception of the exchange in cross-examination in relation to the “I assumed” comment. There were some points where he was confused either as to the meaning of the questions or in his memory. But those points of confusion, lack of memory, or errors of memory, were obvious. To a significant extent they related to issues of dates and timing of events, rather than to whether events did or did not occur. The instances identified did not go to central issues in the case.

The Applicant’s Submissions on Ground 2

281. The applicant does not assert that the jury verdict on count 3 was unreasonable or cannot be supported on the evidence. The challenge to the guilty verdicts is limited to counts 1 and 5. The applicant’s submissions placed considerable emphasis on the complainant’s 2005 letter, addressed to the applicant, which omitted to mention the allegations underpinning counts 1, 2, 4 and 5, or the uncharged acts of sexual intercourse, which were alleged to have taken place in Melbourne and Surfers Paradise.

282. Although the complainant did not accept that she had written the letter which was tendered in an edited form in the trial (Exhibit WR3), the applicant submitted that there was a persuasive body of evidence that supported the conclusion that in 2005, almost 20 years after the last alleged incident, and approximately 11 years before making a formal complaint to police, the complainant had written the letter to the applicant, purporting to detail her complaints about his behaviour towards her. [139]

     139. Tcpt, 23 November 2021, p 350; Tcpt, 24 November 2021, p 425; Tcpt, 24 November 2021, pp 431-433.

283. Paragraph two of the letter contained a reference to one incident only that was consistent with the allegation constituting count 3. While the complainant referred to going camping with the applicant on one occasion, and going with him on business trips to Melbourne, Brisbane and Surfers Paradise, there was no mention of sexual abuse on any of those occasions.

284. The applicant relied on what is asserted to be a “striking feature” of the 2005 letter, namely, that although 37 years old at the time of writing it, the complainant failed to make reference to sexual misconduct as alleged in counts 1, 2, 4 and 5. Given the purpose of the letter, which is asserted to have been an opportunity to put in writing all the grievances about the applicant’s conduct, the absence of complaint in relation to a number of the allegations, is said to be fatal to the complainant’s credibility.

285. The asserted unreliability of the complainant’s evidence was said to be demonstrated by aspects of the evidence generally, the delay in complaint and the proximity of that complaint to the period in which the complainant engaged in counselling, in addition to the absence of complaint about a number of the allegations in the 2005 letter.

286. The applicant also relied upon the not guilty verdicts in support of the contention that the jury had a reasonable doubt about the complainant’s evidence in respect of counts 2 and 4 (and impliedly about the uncharged acts in Melbourne and Surfers Paradise), which should have resulted in an acquittal in relation to counts 1 and 5. The applicant submitted that there was no rational basis for acquitting the applicant on counts 2 and 4, whilst finding him guilty on counts 1 and 5.

The Crown’s Submissions on Ground 2

287. The Crown referred to the advantage enjoyed by the jury in its assessment of the witnesses who gave evidence, including but not limited to the complainant. With respect to the 2005 letter, the Crown submitted that the complainant’s evidence denying that she wrote it was both cogent and persuasive. However, even if it was accepted that the complainant authored the letter, such a conclusion would not necessarily raise a reasonable doubt as to the applicant’s guilt on counts 1 and 5.

288. In support of that contention, the Crown submitted that the 2005 letter was authored only a short time after the complainant had made the first disclosure of sexual offending by the applicant and after 28 years of silence. She had never disclosed the details of the alleged offending. She had provided reasons why she did not make a complaint earlier. In this context, it was submitted that it was reasonable to infer that the complainant was unlikely to write a detailed letter setting out the specifics of each allegation. Rather, it was open to regard the fear the complainant was experiencing as an explanation for why she was prepared to disclose only those acts which were sufficient to demonstrate that she was no longer prepared to remain silent.

289. The purpose of the letter was not to set out in detail each complaint. The letter is not inconsistent with the complainant’s allegation as to the places where the sexual offending occurred. The Crown points to the fact that after making a general allegation that the applicant was “sexually abusive”, the complainant specifically mentioned that the applicant had taken her camping and on business trips from the ages of 14–17.

290. The complainant gave an explanation for why she did not complain about the applicant’s sexual misconduct earlier. Having regard to that explanation, the Crown submitted that neither the delay in complaint, nor the criticisms of the complainant’s evidence, are sufficient to establish this ground.

291. The Crown addressed the applicant’s reliance upon the verdicts of not guilty with respect to counts 2 and 4, submitting that the ultimate question concerns the reasonableness of the jury’s decision and whether the verdicts may be reconciled. The Crown submitted that there was a clear difference between the evidence in support of counts 1 and 5 on the one hand and counts 2 and 4 on the other. In respect of count 1, the applicant agreed that he took the complainant camping to Heaton Lookout but denied taking her camping to Budgewoi (count 2).

292. In respect of Count 5, the applicant’s evidence that the complainant slept in the marital bed at the family home provides what is asserted to be “compelling context, in support of the complainant’s evidence”. By contrast, in respect of count 4, the applicant denied that he ever took the complainant on the business trip staying overnight at the Sydney Hilton Hotel. None of the witnesses gave evidence that the complainant had mentioned that specific location when nominating where the sexual assaults took place.

293. The Crown submitted that the jury verdicts were explicable by reference to the absence of supporting evidence for counts 2 and 4, which was reinforced by the directions given by the trial judge. The verdicts of not guilty did not necessarily involve reservations about the complainant’s reliability.

Applicable Principles

294. In considering whether a verdict of guilty is unreasonable or cannot be supported having regard to the evidence, this Court must make its own independent assessment of the evidence. The test to be applied by an appellate court addressing a ground of appeal that a verdict of guilty is unreasonable or cannot be supported having regard to the evidence was laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The relevant passages in the judgment at 493–495 of Mason CJ, Deane, Dawson and Toohey JJ provide significant guidance:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

…

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contained discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (footnotes omitted)

295. The test has been repeatedly reaffirmed in numerous cases: see SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay); Dansie v The Queen [2022] HCA 25 (Dansie); (2022) 96 ALJR 728; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

296. The significant emphasis on the constitutional role of the jury in determining questions of guilt was repeated in Baden-Clay at [65]:

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.” (footnotes omitted)

297. If, after giving full primacy to the jury, this Court is left with a reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving that doubt, that the Court can conclude there was no miscarriage of justice: see Xie v R [2022] NSWCCA 185, noting what was said in Libke v The Queen (2007) 230 CLR 559; [2009] HCA 30 at [113].

298. While the constitutional importance of the jury as the arbiter of fact must be borne in mind in determining a complaint about an asserted unreasonable verdict, that does not absolve this Court from undertaking its own assessment of the credibility and reliability of all the complainant’s evidence in the case to determine whether it was open to the jury to convict the applicant on the charges on which the jury returned a guilty verdict: see JN v R [2019] NSWCCA 287 at [39]; AS v R [2022] NSWCCA 291 at [148]; SC v R [2023] NSWCCA 60 at [162].

299. The applicant relies, in part, upon the not guilty verdicts in support of the contention that this Court, undertaking its own assessment of the credibility and reliability of the evidence, would conclude that it was not open to the jury to find the applicant guilty with respect to counts 1 and 5. Where inconsistency is said to invalidate a verdict or verdicts of guilty, the enquiry is as to the logic and reasonableness of those verdicts: see Mackenzie v The Queen (1996) 190 CLR 348 at 365; [1996] HCA 35 (Mackenzie); BW v R [2023] NSWCCA 146 at [84].

300. Juries are routinely directed that they must consider each count on the indictment separately, with attention to the evidence that supports that count. The significance of verdicts of not guilty on some counts must be considered in light of the circumstances of the particular case. A number of features of that context, as emphasised in Mackenzie, were set out in the passage from the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34]–[35]:

“Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.” (footnotes omitted)

301. In a case such as this, where proof of each count relied primarily on the evidence of the complainant, conviction on one charge and acquittal on another, does not of itself demonstrate that the jury must have rejected the complainant as an honest and reliable witness. In TK v The Queen (2009) 74 NSWLR 299; [2009] NSWCCA 151 (TK) at [128], Simpson J (as her Honour then was) (with whom McClellan CJ at CL and Latham J agreed) said:

“In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis.”

302. In Ganiji v The Queen [2019] NSWCCA 208 (Ganiji), Basten JA (with whom Button and Lonergan JJ agreed), said at [13]:

“The correct approach depends on discarding the term ‘inconsistent’ with respect to the verdicts, as it assumes unreasonableness, or some unspecified error, on the part of the jury. Absent further analysis, a conviction on one or more counts on an indictment, accompanied by acquittal on one or more other counts, does not necessarily demonstrate ‘inconsistency’ or any other error on the part of the jury. The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects.”

303. In BW v R [2023] NSWCCA 146 at [202] (Garling J), after referring to both TK and Ganiji, observed that what is of importance is the identification of any explanation, leaving aside the credibility of the complainant, for the verdicts which were returned.

Disposition of Ground 2

304. In determining whether the verdicts of guilty with respect to counts 1 and 5 are unreasonable, it is necessary to consider the question of whether they can be reconciled with the not guilty verdicts in respect of counts 2 and 4. An assessment of a witness’s evidence, depends upon two separate but sometimes overlapping concepts, namely, a witness’s credibility and their reliability. The difference between the two concepts was explained by Nettle and Gordon JJ in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [114]:

“The credibility of a witness was commonly understood [at common law] as meaning the ‘truthfulness’ of the witness - whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness's ability to observe and remember facts. For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time.”

305. Credibility is often understood as referring to the honesty or truthfulness of a witness whereas reliability usually refers to a witness’s ability to recall events accurately. Where a witness is found to be untruthful, it is more likely that the entirety of that witness’s evidence will be tainted. On the other hand, as was observed by Kirk JA in Barney v R [2023] NSWCCA 85 at [20]:

“With respect to reliability, it is commonplace for a witness to be reliable in relation to some matters but less reliable in respect of others. That reflects the variability and inherent fallibility of memory.”

306. Where a witness’s reliability, in the broader sense, is in issue, his or her inability to recount some events as clearly as others, or inconsistencies evident between accounts, will not necessarily lead to a conclusion that the witness is unreliable on all matters. There is no hard and fast rule. Each case will depend upon the particular facts and circumstances: see Mackenzie at 368.

306. The trial judge instructed the jury to consider each count separately and to examine the evidence supporting that count to decide whether they were satisfied beyond reasonable doubt in relation to that count. The trial judge also instructed the jury that if they had a reasonable doubt about a particular count then, in addition to finding the applicant not guilty of that count, they should consider how that finding affected their assessment of the other counts on the indictment. Those directions provide important context for the consideration of this ground.

307. In the present case there were differences in the evidence in support of counts 1 and 5 and the evidence in support of counts 2 and 4, capable of reconciling the different verdicts. In respect of count 2, the complainant gave an account that was, if not identical, very similar to the allegation that she had made in relation to count 1. It was open to the jury to find that she was misremembering or conflating the two occasions. Importantly, in respect of count 2, the applicant denied ever taking the complainant on a second camping trip to Budgewoi and none of the other witnesses gave evidence of the complainant specifically mentioning a camping trip at that location.

308. [DF] was asked whether the complainant nominated any places where she was sexually assaulted. He stated: “she did mention that they went camping, just the two of them, Watagans.” [140] Furthermore, JR agreed that she remembered the applicant taking the complainant on a camping trip. Although she was uncertain as to where they went, her evidence suggested a singular camping trip.

     140. Tcpt, 25 November 2021, p 292(7)–(11).

309. In respect of count 4, the police did not make enquiries in relation to the attendance by the applicant at any hotels in Sydney. The applicant denied taking the complainant on a business trip where they stayed overnight at the Sydney Hilton Hotel. None of the witnesses gave evidence that the complainant had mentioned specific locations when nominating where the sexual assaults occurred.

310. The jury were entitled to have regard to the absence of records relating to an overnight stay at the Sydney Hilton Hotel in the relevant period and the applicant’s denials that he had taken the complainant to the Sydney Hilton Hotel, in giving him the benefit of the doubt in relation to count 4.

311. By contrast, in respect of count 5, the complainant alleged that the sexual assault took place at the family home in the applicant’s bed. The applicant agreed in his evidence that before he moved back to the family home, the complainant slept with him in the same bed, each time she stayed overnight at his rental property in Excelsior Parade. It was open for the jury to use the applicant’s admission of previously sharing a bed with the complainant as support for her account in respect of count 5.

312. The ultimate question concerns the reasonableness of the jury’s decision. The significance of the verdict of not guilty must be considered in light of all of the facts and circumstances and in the context of the jury having had the benefit of observing the complainant and listening to her evidence.

313. I am not persuaded that the not guilty verdicts in relation to counts 2 and 4 lead to a conclusion that the jury ought to have rejected the complainant’s evidence in relation to all counts. An analysis of the evidence reveals a logical and reasonable basis for the jury to have returned a verdict of not guilty in relation to counts 2 and 4, and verdicts of guilty in respect of counts 1 and 5.

314. The applicant’s case on this ground is not, however, limited to the argument that the doubts the jury had about the complainant’s evidence in support of counts 2 and 4, should also have resulted in acquittals regarding counts 1–5. This is only one argument in support of the contention that the verdicts regarding counts 1 and 5 on the indictment are unreasonable or cannot be supported having regard to the evidence.

315. The applicant also relied heavily on the letter said to have been written by the complainant and sent to the applicant (Exhibit WR3), and in particular the absence of complaint in relation to the allegations that constitute counts 1, 2, 4 and 5.The complainant agreed that she told Detective Pearson on 11 February 2020, that she had typed a letter and sent it to the applicant about six weeks after she had confronted him in 2005. She denied, however, that Exhibit WR3 was the letter she authored.

316. The Crown, at trial, relied on the absence of a date and signature on the letter, together with the fact that it was typed, in submitting that the jury would not accept the complainant authored the letter. In closing address, the Crown submitted that the applicant had every reason to modify any letter he did receive. There was no evidence capable of establishing that the letter had been modified by the applicant. There was a body of persuasive evidence that supported the conclusion that it was the complainant who authored the letter in 2005. The applicant and Lynette Roberts gave evidence of receiving the letter. Peter Lynn gave evidence of the applicant attending his home with the letter.

317. Further, if the applicant had authored or modified the letter, it is highly unlikely that he would have included the account of cuddling the complainant from behind and touching her breasts, buttocks, abdomen, and pelvic area. The jury likely accepted that it was the complainant who authored the letter.

318. However, the absence of detail in the letter about specific allegations constituting counts 1, 2, 4 and 5, does not, either alone or in combination with other matters relied upon, establish that the complainant was wholly lacking in credibility or reliability. There was nothing in the letter inconsistent with the allegations. The letter contained a detailed description of the events, consistent with the allegation constituting count 3.

319. The complainant started the letter by stating “your actions and words were emotionally and sexually abusive”. Although the complainant did not detail all of the allegations of sexual abuse, she referred to going on business trips with the applicant and occasions when they slept in the same bed. It was entirely open for the jury to accept that in writing the letter, the complainant intended to raise the complaint of sexual abuse in a general way but not go into the specific details of each allegation.

320. The applicant also relied upon delayed complaint, evidence that the complainant engaged in counselling sessions prior to making complaint and an assertion that the complainant gave “unsatisfactory evidence”. The criticisms made of the complainant’s evidence were put forcefully by Mr Johnson SC in his closing address on behalf of the applicant. The jury were directed that they had to consider the complainant’s evidence carefully and be satisfied of it beyond reasonable doubt before they could find the applicant guilty. The jury were also directed about the forensic disadvantage faced by the applicant as a result of the delayed complaint. These directions are not the subject of challenge.

321. For the reasons given above, the verdicts of not guilty in relation to counts 2 and 4 are not indicative of a want of confidence in the complainant, or a rejection of her evidence overall. They are consistent with the jury having accepted the complainant’s evidence as truthful, but having recognised that there was a qualitative difference in her evidence in relation to the incidents the subject of counts 1 and 5.

322. Having conducted an independent assessment of the whole of the evidence, I am not persuaded that the verdicts on counts 1 and 5 are unreasonable or cannot be supported by the evidence. Ground 2 has not been made out.

323. Finally, as regards the issue of the non-publication restrictions, I agree with what Kirk JA has said at [141]-[143].

324. Having determined that ground 1 should be upheld, I would propose the following orders:

1. Leave to appeal granted.

2. Uphold the appeal.

3. Set aside the convictions and sentence with respect to counts 1, 3 and 5 and order a retrial on those counts.

4. List the matter in the arraignment list in the District Court on 11 August 2023.

5. Pursuant to s 578A(4)(a) of the Crimes Act 1900 (NSW) the name of the applicant, William Keith Roberts, may be published identifying him as the applicant in this matter.

Annexure 1

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Endnotes

Amendments

28 July 2023 - Complainant and witness name further anonymised.

Decision last updated: 28 July 2023