Roberts v R - [2023] NSWCCA 187 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

Roberts v R

[2023] NSWCCA 187

Court of Criminal Appeal (NSW)|2023-06-14|Before: Kirk JA, Davies J, Yehia J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-06-14

Before

Kirk JA, Davies J, Yehia J

Catchwords

ss 35, 36, 44, 47
[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

Source

Original judgment source is linked above.

Catchwords

ss 35, 36, 44, 47[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 RMH 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

Judgment (26 paragraphs)

[1]

Background Facts

The complainant, [C], was born on 23 May 1968 and is the natural daughter of the applicant and his then-wife, MR. The complainant's sister, JR, is almost 6 years older than the complainant and AR, her brother, is almost 4 years older than the complainant.
The first years of the complainant's life were spent at a premises on Coal Point Road, Coal Point. When she was about two and a half years old, the family moved to a house at Robey Road, Coal Point. She lived there until she was 17 years old.
The house was a two-story premises. The complainant's bedroom was next to the upstairs bathroom. Her parents occupied the upstairs master bedroom. Initially, all the children had bedrooms upstairs, however, her sister moved downstairs, when she was about 12 years old, and her brother moved downstairs a few years later.
The complainant attended Coal Point Primary School until Year 6, and then completed Years 7 to 10 at Toronto High School. She then attended St Anne's School for 6 months in Year 11, before completing Years 11 and 12 at Avondale College, the Seventh-Day Adventist School at Cooranbong.

[2]

Count 1

At the time of the allegation, the subject of count 1, the complainant was 9 or 10 years old. That year, the applicant took the complainant camping at Heaton's Lookout in the Watagan Mountains. [6] The complainant and the applicant camped for two or three nights and shared a two-person tent. [7]
After the complainant and the applicant had dinner, the applicant read a passage from the Bible to the complainant. The complainant thought that this was a little bit unusual. [8] She remembered that "there was something about one of the Bible men…laying with their daughter". [9] The complainant understood the verse to mean that it was okay for this father to lie with his daughter and okay for the daughter to lie with her father. [10]
The applicant then put his hand inside the complainant's flannelette pyjamas and inserted his fingers into the complainant's vagina. [11] The applicant also touched the complainant's breasts and bottom. [12] In relation to the applicant touching the complainant's vagina, she described the applicant "[s]troking, patting, prodding, putting his one or two fingers inside a little bit, and just…feeling all that part of my body". [13]
While the incident was happening, the applicant said: "[i]t's all right. We're all right. You're all right"; [14] "[i]t would kill your mother"; [15] and "[w]hat we're doing is all right and it's all right with God". [16] The complainant was scared, describing herself as almost paralysed with fear, shock, and disgust. The applicant then began to masturbate in front of the complainant until he ejaculated. She did not tell her mother about the events, the subject of count 1, because she thought it would "kill her". [17]

[3]

Count 2

Count 2 was alleged to have occurred a few months after count 1. The applicant took the complainant on another camping trip to a park on the Central Coast in Budgewoi. Only the complainant and the applicant were present. They spent at least two nights camping and slept in a two-person tent near a lake. [18] The incident, the subject of count 2, occurred after dinner when it was dark. The alleged conduct was in many respects very similar to that constituting count 1.
The applicant read a verse from the Bible about "it being okay with God for Lot to sleep with his - lay with his daughters". [19] The applicant then put his hands inside the complainant's pyjamas and touched her breasts, bottom, and vagina. The applicant's fingers penetrated about 2-3 centimetres into her vagina. [20] The complainant was upset, crying, and said that she wanted her mum. [21] The applicant said "[y]ou're okay, we're okay, it's, you're alright, it would kill your mother if she knew". [22] After the applicant finished touching the complainant, he masturbated in front of her until he ejaculated. [23]
During this camping trip, two boys rode their bikes to the spot where the applicant and the complainant were preparing dinner. On the second night, the complainant was pretending to be asleep when one of the boys entered their tent. The complainant didn't look but could hear the applicant making the same sound he made when he was touching her and masturbating in front of her. She also heard the sound of coins being handled, the inference being that the applicant had sexual contact with one of the boys and paid them in coins.
The complainant did not want to go on either of the camping trips. The complainant said that there was no point trying to defy [24] the applicant because once angry, it was not long before he became violent. [25] Although there were other occasions when the applicant and the complainant went camping, sexual misconduct did not happen on every occasion. [26]

[4]

Count 3

The third incident of sexual misconduct is said to have occurred towards the end of the complainant's sixth class in 1979. [27] The complainant's mother and sister were working at the family business from 6:30am on a Saturday. [28] The complainant could not remember how she got into her parents' bed. [29] She awoke to find that the applicant was "sort of spooning" [30] her from behind.
The applicant was touching her breasts and bottom and penetrated 3 centimetres into her vagina with his fingers. [31] The complainant froze and asked, "[w]hat are you doing?". [32] The applicant replied "[s]orry, I thought you were your mum". [33]
In 1979, the complainant's sister moved out of the family home. The complainant recalled a fight occurring between the applicant and her sister. She heard her sister complain that the applicant had touched her breasts. [34] Evidence was adduced during the trial about this incident, which formed part of the evidence relied upon by the prosecution to establish a tendency on the part of the applicant to have a sexual interest in his daughters.

[5]

Count 4

The alleged offending, the subject of count 4 occurred at the Hilton Hotel in Sydney, on what was described as a business trip. [35] The complainant was 14 years old, going on 15. The applicant and the complainant stayed at the Hilton Hotel for at least two nights.
During this trip, the applicant is alleged to have said things to the complainant such as "[d]o you think people think we're boyfriend and girlfriend?" [36] and, "[y]ou're the only one who understands me". [37]
They went to dinner at a restaurant in the Hilton Hotel. [38] The applicant offered the complainant half a glass of wine several times. [39] She drank at least a glass and a half of wine and described feeling "groggy" [40] and "not right". [41]
The complainant alleged that she woke to the applicant having penile-vaginal intercourse with her. The Crown also relied upon the following evidence in support of count 4: "I kept saying - trying to say 'no, no', trying to get the words out. He just kept saying, 'You're all right. We're all right'. If I said 'Mum', he just kept saying, 'No. You're all right. We're all right. It'd kill your mother', and I just can't really describe that feeling of powerlessness. It's - after he'd finished, he told me I'd had a nightmare." [42]
The sexual intercourse on this occasion was said to have lasted 10-15 minutes. She did not complain about this alleged abuse because she was concerned about her mother and loved her father and felt sorry for him. [43]
In 1983 and 1984, the relationship between the applicant and his then-wife deteriorated. The complainant commenced Year 11 at St Anne's School in Adamstown. She struggled at school and left sometime in 1984. After leaving school, the complainant became isolated and refused to keep in touch with her friends. Her closest friend at school was ST. The complainant wrote a letter to ST in August 1984, explaining the "terrible things that were happening in her home". [44]
The complainant later clarified that she relayed "horrible things happening" [45] in the letter, but did not reveal the details of what had happened until late 2005 or early 2006. ST kept the letter and returned it to the complainant. The letter was tendered and became Exhibit 1. It reads as follows: "Dear [ST]: I'm sorry that I have become so distant without giving you any explanation. It's very hard to explain what happened to me. I really don't understand, myself. All the problems and fights at home have finally got on top of me. I've been kidding myself for years that I've been able to cope with them when I'm only - when I've only become a bitter self-conscious and resentful person. There's so many bad things that have happened here that I've never been able to tell anyone about. I used to think that every family had problems. Well, they do, but not like ours. I know - I know that now. There's no love left here anymore and I've given up trying to make things work. I can't handle anything anymore. Even so much as going into Toronto as become an effort for me. The worst thing is that I've let the stupid problems ruin our friendship. I've shut you out and I've let you down. I'm so sorry, [ST]. I haven't been a good friend at all to you, to anyone. I wanted to confide in you, but I just didn't know what to say. I still don't, really. Sometimes I really think I'm going crazy. Thanks for sticking by me for so long. I didn't expect you to because I don't deserve it. Well, that's the only explanation I can offer you, and I am sorry I left you in the dark for so long. I can't believe that my situation here is going to get better, but I'm trying. I'm - I'm sorry I let our friendship down. It's all myself. I hate myself. I'm not explaining this very well. It's hard for me. Lots of love. BB"

[6]

Count 5

Following the deterioration in the relationship between the applicant and the complainant's mother, the applicant moved into a flat on Excelsior Parade. He remained living there in 1985, but in 1986 returned to the family home. The complainant continued to reside with her mother at the family home on Robey Road. By that time, the complainant had left St Anne's School and went on to complete Years 11 and 12 at the Seventh-Day Adventist School, in 1985 and 1986.
The incident, the subject of count 5 occurred in 1986, when the complainant was 17 years old. The complainant alleged that the sexual assault took place at the family home on Robey Road. [46] On the night in question, the applicant offered her wine at dinner. The complainant drank at least two glasses and became affected by the alcohol. The applicant is alleged to have said, "are you coming in with me tonight?", an invitation to share his bed. The complainant did not believe that the applicant would assault her again and agreed to sleep in his bed that night. She woke to find him on top of her, having non-consensual penile-vaginal intercourse with her. [47]
The complainant also gave evidence about what she had said regarding the sexual abuse. In 2005, the complainant told her husband, [DF], that the applicant raped her by penetrating her vagina with his penis. [48] The complainant said she told [DF] about the sexual abuse that occurred when the applicant had taken her on the business and camping trips. [49] At first, she was hesitant to tell him about the sexual abuse. She was concerned about her mother finding out. [50]
In 2005, the complainant confronted her father and said as follows: "…'I'm not going to shut up anymore about all the things you did to me, all the sexual assaults, and about the fact that you raped me. I'm not going to shut up about that anymore.'" [51]
During that confrontation, the complainant said to the applicant, "[y]ou have to admit it". [52] He did not make any admissions.

[7]

Context Evidence

In addition to the five specific allegations of sexual misconduct which were the subject of counts 1-5, the prosecution relied upon two further allegations as context evidence.

[8]

Business Trip to Melbourne

The first of these allegations involved penile-vaginal intercourse during a business trip to Melbourne. The incident allegedly occurred prior 23 May 1983, and before the complainant was 15 years of age. She was in Year 10. They stayed at The Victorian Hotel in Melbourne for two or three days. [53] The complainant said that on numerous occasions while they were walking together, the applicant said, "[d]o you think people think we're boyfriend and girlfriend?" During the trip, the applicant called the complainant "Kate" when they were alone together. [54] While on this trip, they slept in the same bed together.
The complainant recalled waking up and the applicant telling her that she had a nightmare. [55] He offered the complainant Disprins which she took, and then went back to sleep. [56] Sometime later, the complainant woke to the applicant having penile-vaginal intercourse with her. [57] At the time, the complainant was saying "[n]o, no, no", [58] and "[n]o, I don't want this". [59] The complainant alleged that her arms were pressed down [60] and that she fought as hard as she could against the applicant. [61] The complainant gave evidence that the sexual activity went on until the applicant ejaculated. [62] After the incident, she remembered the applicant stroking her hair and telling her that she had a nightmare. [63]

[9]

Trip to Surfer's Paradise

The second allegation which was relied upon as context evidence was alleged to have occurred in 1984, when the applicant took the complainant on a trip to Surfer's Paradise and stayed at a motel called The Pink Poodle. [64] The complainant gave evidence that the applicant had penile-vaginal sexual intercourse with her without her consent.

[10]

Tendency Evidence

The Crown also relied upon tendency evidence. A summary of the tendency evidence is taken from the respondent's written submissions.
The Crown relied on four categories of evidence as supporting the inference that the applicant had a sexual interest in his daughters and a tendency to act on that interest. First, the complainant gave evidence that when she was around nine or ten, the applicant said to her, "[o]h nice little boobies. Oh very nice". The complainant's older sister, JR, gave evidence that around the time she was in Year 6 or Year 7 and had started developing breasts, the applicant made reference to her "developing into a woman" which made her feel uncomfortable.
Secondly, JR gave evidence that when she was in Year 7 or Year 8, the applicant "groped" her on the breast and told her she was a "big girl now". The complainant and her mother gave evidence of seeing JR run up the stairs and heard her complain that the applicant had touched her on the breast. Each of them heard the applicant immediately deny the allegation.
Thirdly, the complainant gave evidence that the applicant used to "wolf-whistle" at her and say things like "[o]h gee, you're getting good legs". In cross-examination, the applicant agreed that he started wolf-whistling at both his daughters when they were aged 12, 13 or 14 years old.
Finally, the complainant gave evidence that when she was aged 15 or 16 and visited her father, after he separated from her mother, she slept in a double bed with him. In cross-examination, the applicant agreed that this occurred.
In respect of count 3, the Crown also relied on the evidence of JR that sometime after the complainant had confronted the applicant, the applicant suggested that the complainant could have misconstrued what happened when he was in bed with her and mistook her for her mother. JR said the applicant admitted they were in bed together, but he didn't realise it wasn't his wife. [65]

[11]

[DF]

[DF] met the complainant in 1994. They had been together for a few years before they married in 2001. [66] They divorced in April 2011. [67]
[DF] and the complainant would visit the applicant in Coal Point on Lake Macquarie. [DF] said that while he liked to visit, the complainant did not. She did not feel comfortable visiting the applicant. [68]
[DF] gave evidence that the complainant was not interested in having children. He relayed a conversation he had with the complainant about this topic in 2004, where she disclosed the sexual abuse, as follows: "A. Yeah, well after pushing the subject for a bit she finally said to me, 'If we had children I'd have to move away from here', and so, you know, I pushed her a little bit further and said, 'Well, why?', you know, 'What's going on?', and she said, 'I wouldn't feel that my child was safe around my father'. She said around her family but - as well, a bit, but yeah, and that, you know, it came to a bit of a head then. I was sort of pushing pretty hard on what's the reason for all this and to me, you know, having children is a normal part of a marriage, even though we already had my daughter coming over every second weekend, we were like a family then, but on the subject of the two of us having a child she, yeah, she eventually went on to say that her father had sexually abused her when she was a child." [69]
The complainant did not go into detail about the incident. She felt that it would affect their relationship. [DF] was shocked but respected her decision not to disclose further detail. [70] He remembered the complainant telling him that she used to hop into bed with her father when her mother wasn't present, and that "stuff" happened between them. This occurred at the Coal Point household. [71]
[DF] was present when the complainant confronted the applicant in the lounge room of their house at Toronto. [72] He was in a bedroom when he heard the complainant say words to the effect that the applicant had sex with her when she was a child [73] The conversation went on for roughly 20 minutes. [74] The last time [DF] spoke with the complainant was 12 years ago. [75]

[12]

Investigation and Arrest

The complainant first reported the matter to the police in 2012, by way of an on- line report. She didn't go into detail. It was not a formal police statement and did not trigger an investigation. It provided an option for her to report the events and provide relevant names and dates in a database. Nothing more happened with respect to the complaint until 2016, when the complainant made a formal report to police, requesting that an investigation in relation to the allegations be initiated. [76]

[13]

Senior Constable Robert Risteski

Senior Constable Robert Risteski stated that the complainant attended Newcastle Police Station on 12 July 2016, to make a statement about a historical sexual assault involving her father. [77] He explained the process to the complainant but he didn't take a formal statement from her. [78] The complainant then attended Newcastle Police Station on Friday 15 July 2016, and provided a letter to Senior Constable Risteski, namely, the letter she had written to ST many years before. [79] On 20 July 2016, the first statement from the complainant was finalised. [80] Senior Constable Risteski then transferred the investigation to Lake Macquarie Police. [81]

[14]

Detective Senior Constable Danielle Allen

Detective Senior Constable Danielle was assigned to assist with the investigation on 31 May 2017. On 7 June 2017, she undertook a number of inquiries in relation to three separate schools requesting school records. [82] She contacted Coal Point Primary School, where the complainant attended from kindergarten to Year 6 in 1973-1979; [83] Toronto High School concerning Years 7, 8 and 9 from 1980-1983; and Avondale School at Cooranbong for Year 12 in 1984-1986. [84] No records were located. [85] Detective Senior Constable Allen did not make any enquiries in relation to the attendance of the complainant at any hotels or motels in Victoria or Surfer's Paradise. [86]

[15]

Detective Senior Constable Ian Pearson

Detective Senior Constable Ian Pearson was the officer in charge of the investigation, but had only become involved after the brief had been prepared. [87] He had been involved in the matter after the arrest and charge of the applicant. [88] On 12 October 2016, the applicant attended Belmont Police Station and was formally charged.

[16]

The Applicant's Evidence

The applicant gave evidence at trial. In 2005, there was a day when the applicant was invited to the complainant's home, where she confronted him in relation to sexual abuse. [89] This was referred to as the "confrontation day" at trial. [90] When the applicant arrived, the following exchange took place: "'You did it'. I said, '[C], what?' She said, 'You did it. Own up and tell me that you did it or get out of this house'. She let me know the [DF] was in his room and he was sick. Not much more than that. I - I pleaded with her. I said, 'Don't do this, [C]. Don't do this. What is it?' She would not tell me, and it followed on." [91]
The applicant then received a two-page letter that had been placed into his letterbox about a day after. [92] He understood the letter to be from the complainant. [93] The letter was tendered as Exhibit WR3 at trial. The contents of Exhibit WR3 are set out as follows (as written): "Dad You have told me many times that you love me that you would never do anything to hurt me. BUT your actions and words were emotionally and sexually abusive. It has taken me many years to free myself from the confusion you caused. For now I will talk about the sexual abuse I never forgot. In yours and Mums bed one morning, (Mum was not in the room) you cuddled me from behind and touched up my breasts, buttocks, abdomen and pelvic area. I was about 11 or younger and still skinny and undeveloped. I froze with fear and dread and after a while you said sorry I thought you were your mum. Mum was about 9 stone then and I was about 6 stone. I wanted to believe you but I wanted to tell Mum all about it to. I didn't cos I thought she might not believe you. I protected you and you knew it. You took me on business trips from the age of about 14 to 17. Twice to Melbourne and once to Brisbane and Surfers. Just you and me. (Yes Andy came with us to Melbourne on a separate occasion later). In Melbourne we stayed at some Hotel that mum, Andrew and I had stayed in several years before during a bus trip. Then the next time we stayed at the Melbourne Hilton. In Surfers we stayed at the Pink Poodle motel. We shared a room every time and mostly, (perhaps every time) we shared a bed. You regularly used me as a marriage counsellor over dinner, saying how unhappy you and mum were. You drank wine and often offered me 'half a glass.' Remember! You often said to me 'do you think people think you are my girlfriend?' This is all very strange behaviour for a father. I felt sleazy but I trusted you. When you were living at Excelsior Pde (I was about 16) I'd stay with you sometimes and we always slept in your double bed. You'd say 'we're alright, we know we're alright, It's good we can still cuddle.' It never felt right to me. It always felt strange and it's not O.K. You kept saying it was all right and I trusted you. Mum says she never knew we shared a bed. When I was about 12 or 13 I was downstairs with you and Andy only. You said to me 'Oooh nice little breasts' and smiled and nodded your head approvingly. I felt so embarrassed and weird. When I burned myself at about 14 I was lying naked under a sheet waiting for the ambulance to come and you brought Warren in and lifted up the sheet and you both looked at my whole body. WHY? Lorraine might have been there too. When I was about 9 you took [JR] camping by herself Not long after you took me camping by myself for 2 or 3 nights. You always said you would take Andy and you never did. I never felt right about that. About I month ago you told me you thought [D] was sexy. I was horrified and told you never to do that again. She is 13 - A CHILD. DON"T sexualize a child in any way. They are not ready for that emotionally or physically. It damages them and shames them and ruins their instincts. Heres a hint - If they are under 18 don't call them sexy. Pa called me sexy when I was 12 and under. I give all this sexual abuse back to you. Get help. Please please get help. [C]

[17]

Lynette Roberts

Lynette Roberts is the applicant's wife. She was aware of the confrontation in the complainant's home between the complainant and the applicant. [125] She said that the complainant asked the applicant to visit her house. The applicant spoke with Mrs Roberts after the confrontation. She described the applicant as "absolutely distraught". [126] Two or three days later a letter arrived. The letter did not contain many allegations [127] other than reference to the applicant cuddling the complainant in bed.
Mrs Roberts was shown the letter marked Exhibit WR3 and confirmed it was the letter she received in 2005. She stated that the applicant went to see Peter Lynn with the letter. She also recalled hearing the applicant speaking about the contents of the letter with Mr Lloyd (the complainant's stepfather), and the applicant's brother. [128] She said that it was not possible that the applicant had created or amended the letter because the applicant could only type with one finger.
Mrs Roberts was present when the applicant was arrested in October 2016. In the following months and years, various statements were served by the prosecution. In relation to those statements, she assisted the applicant to obtain further information. She attempted to help obtain confirmation regarding dates, flights, and hotel bookings. She agreed that she had taken an active role in assisting her husband responding to the allegations. She accepted that she tracked down certain records to assist in the applicant's defence. She first became aware that the matter would potentially result in criminal charges in 2016, when the police came to her home. [129]

[18]

Peter Lynn

Peter Lynn gave evidence that the applicant attended his house during the week of Christmas in 2005. He said that the applicant arrived upset and with a letter. He recalled the following: "…he had a letter in his hand, and he - he - I was sitting in my normal chair, and he was over there, and I went down, because he was so distressed. I sat next to him on the lounge, and he spoke about the letter, 'Here's the letter.' He said, 'I want you to read it'; and I said, 'No, I don't want to get involved in any family dispute.'" [130]
Mr Lynn scanned through the letter. In answer to a question as to whether there was anything that stood out in the letter, he responded: "Well, yes. There's - what stuck in my mind, that the letter was about, in the first paragraph, there was stuff with - about [C] when she was 11, and then immediately after I saw that I dropped my eyes down to the paragraph below that, and in that paragraph was a - a comment, 'I trusted you', in fact it goes - I think it goes, 'I felt sleazy and I trusted you.'" [131]
He identified Exhibit WR3 as the letter shown to him by the applicant.

[19]

Summing Up

The trial judge summed up to the jury on 25-26 November 2021. The trial judge reminded the jury that the prosecution case relied solely or substantially on a single witness. The trial judge told the jury that they must examine the evidence of the complainant carefully, because it is on that evidence alone that the Crown sought to prove each allegation beyond reasonable doubt. The trial judge directed the jury that unless the jury was satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in relation to the evidence she gave in respect of each count, they could not find the applicant guilty.
With respect to the delay in making a complaint about the alleged conduct, the trial judge warned the jury that it was most important that the jury fully appreciates the effects of delay on the ability of the applicant to defend himself by testing prosecution evidence. The trial judge explained that the applicant had been placed in a situation of significant disadvantage, as a result of the delay, and warned that before the jury could convict the applicant, they must give the prosecution case the most careful scrutiny.

[20]

Markuleski Direction

The trial judge also directed the jury in accordance with what is commonly referred to as the "Markuleski" direction, in the following terms: "Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on other counts, if there is a logical and rational basis for that outcome. If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of [C's] evidence, you must take that into account and consider how that conclusion affects your assessment of her evidence in the remaining counts." [132]
The jury retired to consider its verdict at 12:17pm on 26 November 2021. Later that day the jury sent a note stating: "we are still deliberating a verdict of the charges. However, at this time we have reached a stalemate and are needing some time to contemplate [or complete] our discussions". [133]
The jury were allowed to separate for the weekend. Upon their return on Monday 29 November 2021, a further note was received stating: "we made some progress today but have not come up with a verdict for all counts yet. We need to break for the day". [134]
On 30 November 2021, the jury continued to deliberate. On that day, a further note was received which read as follows: "We still think we are still stuck in a stalemate and we have some questions that might help to guide us to where we go from here. Would it be possible for you to go back over tendency reasoning and how we go about applying it in drawing our conclusions? Could you please also give a little more clarification surrounding reasonable doubt? We are hoping that this clarification will better inform our discussions so we can come closer to a verdict. If it doesn't and we're still divided on our verdict, where do we go from here?" [135]
In answer to this jury note, the trial judge explained that beyond reasonable doubt required a much higher standard of satisfaction than the civil standard of proof. The trial judge also gave a further direction on tendency evidence. There is no complaint made in respect of these further directions.
On 1 December 2021, a note was received from the jury stating: "After lengthy discussion and after taking into account your clarification from yesterday, we are still unable to come to a unanimous decision. We have reviewed all the evidence multiple times and although we have been able to reach a majority we have reached an impasse and we cannot all consent on a verdict. We are unsure how to proceed from here." [136]

[21]

The Applicant's Submissions on Ground 2

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.
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]
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.
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.
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.
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.

[22]

The Crown's Submissions on Ground 2

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.
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.
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.
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.
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).

[23]

Applicable Principles

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)

[24]

Disposition of Ground 2

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."
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."
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.
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.

[25]

Endnotes

Tcpt, 13 June 2023, p 48(26)-(33).
Ibid, p 49(1)-(5).
Ibid, p 15(3)-(12).
Tcpt, 23 November 2021, p 375(27)-(28).
Tcpt, 25 November 2021, p 478-479.
Tcpt, 16 November 2021, p 43(7).
Ibid, p 43(31)-(40).
Ibid, p 44(1).
Ibid, p 44(3)-(6).
Ibid, p 44(13)-(14).
Ibid, p 44(18)-(19).
Ibid, p 44(47)-(48).
Ibid, p 45(6)-(7).
Ibid, p 45(15).
Ibid, p 45(16)-(17).
Ibid, p 45(18)-(19).
Ibid, p 46(7).
Ibid, p 47(32)-(48).
Ibid, p 48(14)-(16).
Ibid, p 48(16)-(24).
Ibid, p 48(18)-(19).
Ibid, p 48(19)-(20).
Ibid, p 48(42)-(48).
Ibid, 50(36).
Ibid, p 50(27).
Ibid, p 50(50).
Ibid, p 51(13).
Ibid, p 51(15)-(16).
Ibid, p 52(9)-(10).
Ibid, p 51(27).
Ibid, p 51(24).
Ibid, p 51(25).
Ibid, p 51(25)-(26).
Ibid, p 58(6).
Ibid, p 64(41).
Ibid, p 66(2)-(3).
Ibid, p 66(4).
Ibid, p 66(15)-(16).
Ibid, p 66(20).
Ibid, p 66(16).
Ibid.
Ibid, p 67(2)-(7).
Ibid, pp 67(45)-68(5).
Ibid p74 (39)-(50).
Ibid p76 (8).
Ibid, p 79(25)-(45).
Ibid, p 81.
Tcpt, 16 November 2021, p 86(7)-(8).
Ibid, p 86(28)-(30).
Ibid, 86(41).
Ibid, p 88(17)-(22).
Ibid, p 88(27).
Ibid, p 60(41)-(46).
Ibid, p 61(8).
Ibid, p 62(5).
Ibid, p 62(4)-(10).
Ibid, p 62(11).
Ibid, p 63(7).

[26]

Amendments 28 July 2023 - Complainant and witness name further anonymised. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2023

Parties

Applicant/Plaintiff:

Roberts

Respondent/Defendant:

Legislation Cited (12)

Significance of Mental Health and Cognitive Impairment Forensic Provision Act 2020(NSW)

Mental Health (Criminal Procedure) Act 1990(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

Mental Health and Cognitive Impairment Forensic Provision Act 2020(NSW)

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

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Evidence Act 1995(NSW)

Judiciary Act 1903(Cth)

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

Mental Health and Cognitive Impairment Forensic Provisions Act 2020(NSW)

Children (Criminal Proceedings) Act 1987(NSW)

Cases Cited (92)

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 Ngatayi v 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)

Cited By (2)

R v Gall

RE v R

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)

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:

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].
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.
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.
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].
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].
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:
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:
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].
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
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
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.
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):
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.
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].
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

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.
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.
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.
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.
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.
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.
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.

The concept of fitness to be tried

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.
The terms "mental health impairment" and "cognitive impairment" are defined in ss 4 and 5 of the Act respectively.
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.
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.
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 Ngatayi v 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

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.
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.
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.
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.
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.
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.
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.
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).
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.
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).
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.
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.
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).
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.
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.
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".
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.
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."
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.
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.
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?

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.
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.
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".
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.
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.
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".
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

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.
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.
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.
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.
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.
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.
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.
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.
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.
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)).
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

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.
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].
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.
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.
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].
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.
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.
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.
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).

Orders, including as to non-publication

An issue arose in the hearing as to whether or not the applicant should be identified by his name. Pursuant to s 578A(2) of the Crimes Act 1900 (NSW) persons are prohibited from publishing any matter which identifies, or is likely to lead to the identification, of the complainant in prescribed sexual offence proceedings (which the parties accepted extended to this proceeding). Given the relationships involved, to identify the name of the applicant could also lead to at least some people identifying the complainant. However, under s 578A(4)(a) the Court may authorise publication. Subsection (5) requires that that not be done unless the court has "sought and considered any views of the complainant" and "is satisfied that the publication is in the public interest".
The Crown informed the Court that whilst the complainant, along with her older sister, do not consent to publication of their own identities, they do consent to public identification of the applicant's identity, even though that could indirectly identify them to some people. The applicant identified no public interest militating against identifying the applicant. I am satisfied that the public interest in open justice warrants an order being made permitting that identification.
Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) also protects the identity of the complainant, along with her older sister. Under s 15D of that Act, however, that prohibition does not apply "in the case of a person who is of or above the age of 16 years at the time of publication or broadcasting - with the consent of the person". Both the complainant and her sister are now aged over 16 years. The nature of and extent of their limited consent to indirect identification has been noted. It is not necessary to make any order dealing with this provision.
In my view the orders of the Court should be as follows: 1. Leave to appeal is granted. 2. The appeal is dismissed. 3. 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.
DAVIES J: I have the advantage of reading the judgments of Kirk JA and Yehia J. In relation ground 1, like Yehia J, I respectfully disagree that RTI is distinguishable from the position in the present appeal. Whilst it is the case that the statutory arrangements concerning the decision-maker, when a question of fitness arose, were different at the time RTI was decided, the identity of the decision-maker was never a relevant consideration for the determination of the correct test in circumstances such as the present, as a reading of the cases demonstrates, and as Yehia J makes clear.
Moreover, given that RTI has been followed by decisions of this Court a number of times since the statutory regime became identical with the present regime after 1 January 2006, it would have to be concluded that those decisions were decided per incuriam, or were simply wrong in following RTI. To reach that conclusion would require the present Court to concluded that those decisions, and possibly RTI and Rivkin, were plainly wrong, and we would need to find compelling reasons to depart from them: Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [277] -[285], [294]-[295] and [301]; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [72]-[76]; Garcia-Gados v R; MH v R [2023] NSWCCA 145 at [21].
Where the test laid down by RTI and the cases which followed it is derived from what must be regarded as "seriously considered" dicta (Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134] and [158]) of Gaudron and Hayne JJ in Eastman HCA 2000, as Yehia J has identified, it cannot be said that the cases which have relied upon RTI, or RTI itself, are plainly wrong.
I share Yehia J's concern also about the fact that the issue leading to Kirk JA's conclusion was not fully argued, or argued at all, and that the issue was raised by the bench subsequent to the conclusion of evidence at the appeal.
In relation to ground 2, I agree with Yehia J's analysis of the evidence and her conclusion. From my own examination of the evidence, I do not have a doubt about the applicant's guilt.
I agree with the orders proposed by Yehia J. YEHIA J: