Roberts v R

JUDGMENT

1. KIRK JA: In December 2021 the applicant, Mr William Roberts, was found guilty of three counts of sexual abuse of his daughter, after a trial by jury in the District Court. He was found not guilty of two other counts. The counts related to offences said to have occurred in the late 1970s through to the mid 1980s. He was convicted and sentenced to an aggregate prison term of five years with a non-parole period of two years. At the time of trial the applicant was 84 years old. He has recently turned 86. He had served some 13 months of his sentence when he was released on bail: WR v R [2023] NSWCCA 38.
2. The applicant seeks leave to appeal his convictions on two grounds: 1. that a miscarriage of justice occurred by reason of the fact that the appellant was not or may not have been fit to stand trial; 2. that the guilty verdicts on counts 1 and 5 are unreasonable or cannot be supported having regard to the evidence.
3. The hearing of the application took place over two days - the first day involved hearing evidence going to the first ground and the second day involved submissions. Neither side objected to any part of the other's evidence. The applicant called expert evidence from a psychiatrist, Dr Olav Nielssen, and a geriatrician, Dr Tuly Rosenfeld. In response, the Crown called evidence from a psychiatrist, Dr James Baée. The three experts gave oral evidence concurrently. The Court had the benefit of seven expert reports from the three doctors, along with a memorandum which they jointly prepared recording their areas of agreement and disagreement. The applicant also called evidence from the applicant's legal representatives at his trial, his solicitor Mr Greg Walsh and counsel Mr Matthew Johnston SC. Both are very experienced criminal law practitioners.
4. The issue of fitness to be tried was not raised at the trial despite the fact that both Mr Walsh and Mr Johnston gave consideration to the issue. This Court addressed the legal test to be applied when fitness is first raised on appeal twenty years ago in R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [31]. The test there stated has been applied - or at least has been said to have been applied - in a number of cases subsequently. However, the statutory context has changed since that case, and the cases on which it was founded, were decided. Given that change the RTI test is not binding in this matter. The test been inconsistently applied and there are other reasons it should no longer be followed.
5. The question in a case such as this is whether a miscarriage of justice has been established, at the least in the sense that it appears unjust or unsafe to allow the verdict to stand. Applying that approach, ground 1 is not made out. The applicant was fit to be tried at the time of his trial.
6. As for ground 2, having reviewed all of the evidence, in my view it was open to the jury to be persuaded of the applicant's guilt on counts 1 and 5 beyond reasonable doubt. I agree with the reasons of Yehia J in that regard.
7. In what follows I will first discuss the relevant legal principles then consider whether a miscarriage of justice has been made out in this case on ground 1. At the end of the judgment I address the orders that should be made, including as to non-publication orders. Annexure 1 to the judgment is a table setting out portions of transcript of the trial which were given some emphasis by the parties, with my observations on those portions.

The concept of fitness to be tried

1. 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.
2. The terms "mental health impairment" and "cognitive impairment" are defined in ss 4 and 5 of the Act respectively.
3. 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.
4. 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.
5. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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).
9. 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.
10. 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).
11. 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.
12. 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.
13. 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).
14. 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.
15. 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.
16. 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".
17. 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.
18. 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."
19. 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.
20. 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.
21. 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?

1. 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.
2. 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.
3. 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".
4. 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.
5. 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.
6. 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".
7. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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)).
11. 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

1. 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.
2. 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].
3. 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.
4. 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.
5. 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].
6. 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.
7. 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.
8. 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.
9. 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

1. 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".
2. 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.
3. 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.
4. 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.
5. 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.
6. 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].
7. 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.
8. 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.
9. 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.
10. I agree with the orders proposed by Yehia J. YEHIA J:

[2005] HCA 55

[2002] HCA 53

[2016] HCA 35

(2012) 246 CLR 469

(1993) 179 CLR 44

(2004) 220 CLR 1

(2005) 226 CLR 1

(2022) 96 ALJR 728

(1937) 57 CLR 170

(2003) 214 CLR 318

(2000) 203 CLR 1

(2021) 273 CLR 585

(2015) 256 CLR 47

(1986) 160 CLR 392

(2009) 109 NSWLR 1

(2021) 95 ALJR 937

(2016) 257 CLR 300

(1994) 181 CLR 230

(2017) 94 NSWLR 36

(2007) 230 CLR 559

(1994) 181 CLR 487

(1996) 190 CLR 348

(2005) 221 CLR 646

(2002) 213 CLR 606

(1980) 147 CLR 1

(2006) 80 ALJR 614

(2020) 268 CLR 123

(2016) 258 CLR 308

(2004) 59 NSWLR 284

(2003) 58 NSWLR 438

(2011) 243 CLR 400

(2018) 266 CLR 56

(2009) 74 NSWLR 299

(2002) 212 CLR 124

(2022) 108 NSWLR 17

(1979) 142 CLR 531

(2005) 224 CLR 300

(2007) 230 CLR 89

[2023] NSWCCA 85

[1993] HCA 71

[2023] NSWCCA 146

[2005] HCA 64

[2016] HCA 14

[2019] NSWCCA 287

[2018] NSWCA 306

[1994] HCA 63

[2011] NSWCCA 260

[1980] HCA 16

[2020] HCA 12

[2011] NSWCCA 275

[2002] NSWCCA 372

[2008] NSWCCA 64

[2023] NSWCCA 60

[2011] HCA 13

[2009] NSWCCA 151

[1979] HCA 9

[2005] HCA 81

[2007] HCA 22

[1980] HCA 18

[2022] NSWCCA 291

[2012] HCA 59

[2022] HCA 25

[1937] HCA 27

[2003] HCA 28

[2000] HCA 29

[2015] NSWCCA 43

[1986] HCA 26

[2019] NSWCCA 208

[2023] NSWCCA 145

[2019] NSWCCA 244

[2021] HCA 36

[2017] NSWCCA 138

[1994] HCA 41

[2017] NSWCA 37

[2009] HCA 30

[1996] HCA 35

[2006] HCA 9

[2004] NSWCCA 7

[2001] NSWCCA 53

[2002] HCA 46

[2022] NSWCCA 75

[2006] NSWCCA 380

[2022] NSWCCA 185