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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Roberts v R [2023] NSWCCA 187
Case
[2023] NSWCCA 187
Decision Date
CaseChat Overview and Summary
In Roberts v R, the appellant sought to appeal his conviction on two counts of fraud. The appeal was based on two grounds: firstly, that the appellant was unfit to stand trial due to dementia, and secondly, that the verdict was unreasonable as it was based on unreliable evidence. The case was heard by the Supreme Court of New South Wales, Court of Criminal Appeal.
The primary legal issues that the court was required to decide were whether the appellant's fitness to stand trial was properly assessed, and whether the verdict was unreasonable given the inconsistencies in the evidence. The court considered whether the appellant's fitness to be tried could be raised on appeal despite not being raised at the trial, and if so, what test should be applied. The court also had to determine whether the primary decision-maker under the Mental Health and Cognitive Impairment Forensic Provision Act 2020 (NSW) was a judge or a jury or administrative tribunal, and whether this was significant in distinguishing previous case law. Additionally, the court needed to consider whether the appellant's argumentative and obstructive presentation during the trial could be attributed to his dementia, and whether this affected the reliability of the evidence presented.
The court held that the appellant's fitness to stand trial could be raised on appeal, and the test applied should be whether the appellant was not or may not have been fit to stand trial. The court found that the appellant had dementia at the time of the trial, which affected his manner of presentation and cognitive function. The court gave significant weight to the expert evidence provided on the appellant's fitness. The court noted that the jury was unaware of the appellant's dementia and may have used his argumentative and obstructive presentation to assert that he was lying in his evidence. The court concluded that the appellant was not fit to stand trial due to his dementia. The court also found that the verdict was not unreasonable despite the inconsistencies in the evidence. The court held that the differences in the evidence could be reconciled and that inconsistencies in a witness's account did not necessarily lead to a conclusion that the witness was unreliable on all matters.
The final orders of the court were to quash the appellant's convictions on the two counts of fraud and order a retrial. The court noted that the retrial should be conducted with proper consideration of the appellant's fitness to stand trial. The court also noted that the evidence presented at the retrial should be carefully evaluated to ensure that the verdict is not based on unreliable evidence.