Roberts v R

1. [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. [2]

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

   1. (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. (2)

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

3. [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. [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. [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. [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. [7]

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

Legal principles

1. [8]

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

2. [9]

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

3. [10]

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

4. [11]

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

5. [12]

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

6. [13]

   Section 36 of the Act provides as follows:

7. [14]

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

8. [15]

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

9. [16]

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

10. [17]

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

    1. (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. (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. (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].

11. [18]

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

12. [19]

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

13. [20]

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

14. [21]

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

15. [22]

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

16. [23]

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

17. [24]

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

18. [25]

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

19. [26]

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

20. [27]

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

21. [28]

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

22. [29]

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

23. [30]

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

24. [31]

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

25. [32]

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

26. [33]

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

27. [34]

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

28. [35]

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

29. [36]

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

30. [37]

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

31. [38]

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

32. [39]

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

33. [40]

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

34. [41]

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

35. [42]

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

36. [43]

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

37. [44]

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

38. [45]

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

39. [46]

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

40. [47]

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

41. [48]

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

42. [49]

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

43. [50]

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

44. [51]

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

45. [52]

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

46. [53]

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

47. [54]

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

48. [55]

    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)).

49. [56]

    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.

50. [57]

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

51. [58]

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

52. [59]

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

53. [60]

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

54. [61]

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

55. [62]

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

56. [63]

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

57. [64]

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

58. [65]

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

Was there a miscarriage of justice here?

1. [66]

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

2. [67]

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

3. [68]

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

4. [69]

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

5. [70]

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

6. [71]

   Mr Walsh gave the following, frank evidence:

7. [72]

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

8. [73]

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

9. [74]

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

10. [75]

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

11. [76]

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

12. [77]

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

13. [78]

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

14. [79]

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

15. [80]

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

16. [81]

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

17. [82]

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

18. [83]

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

19. [84]

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

20. [85]

    He started giving evidence in chief at 10:13am, went well past lunch, and his evidence occupied in excess of 70 pages of transcript. Any witness can find the process of giving evidence over a long period tiring, make some errors, get confused by lawyer’s questions, and forget some of the detail of what they had said in answer to earlier questions. As it happens, for example, the complainant in this case also misunderstood some questions put to her and misremembered evidence she had earlier given. In the rest of the transcript of the applicant’s evidence (ie beyond the portions emphasised by the parties) there were some other instances of memory lapses and possible confusion. Taking all such instances together, they were not of a surprising kind for any witness, let alone someone giving evidence as to events up to 45 years ago, let alone doing so when aged 84. They are not a dominating feature of his evidence.

21. [86]

    He was sometimes argumentative and non-responsive, more than most witnesses are, but not exceptionally or extraordinarily so.

22. [87]

    Taken as a whole, the applicant’s evidence strikes me as relatively unremarkable for a person vociferously denying the very serious allegations made against him about sexual abuse of his daughter, relating to events long ago. It manifests a person able to remember relevant events and engage with the allegations that were put to him, doing so throughout the course of his testimony.

23. [88]

    It is important to note what significance the expert evidence does and does not have. Whether a person was or is fit to be tried is a mixed question of fact and law. The conclusion involves the application of a legal test. Even when relevant criteria are listed, as now done in s 36(1) of the Act, applying them involves a judgment which will almost invariably involve issues of degree. And those issues require reference to the nature of the case, the nature of the impairments, and how those impairments might impact the ability of the accused to receive a fair trial according to law. Experts are capable of throwing light on the nature of the impairments and how those would or may have affected the accused. They may also express a view on the relevant criteria and on the ultimate issue of fitness: Evidence Act 1995 (NSW), s 80(a). But their evidence is more likely to be helpful as regards addressing the nature and effects of the impairments than on the ultimate question of fitness. That is so both because the ultimate question is one on which the court must reach its own conclusion and because the issue involves legal nuance. As Smith J said in Presser itself (at 46).

24. [89]

    Turning to the evidence here, Dr Tuly Rosenfeld, called by the applicant, is a geriatrician of long experience. He is highly familiar with reviewing patients with dementia. He has regularly done medico-legal reports with respect to issues of capacity. He met with the applicant on 20 January 2022, some two months after the trial. It is not apparent how long this meeting took. In his first report, prepared shortly thereafter, he opined that the applicant “suffers from brain disease, cognitive impairment and a dementia that would in my opinion more likely than not have and continues to compromise his ability to recall, reflect, consider and judge complex decision making tasks”.

25. [90]

    This first report was obtained by Mr Walsh for the purposes of sentencing. It is unfortunate that in his letter of instruction seeking such a report Mr Walsh expressed his own view that “[i]n retrospect, it is probable that Mr Roberts was probably not fit for trial”, and giving reasons for that view. If an opinion is sought from an expert the instructor should not express their own opinion on that issue when requesting the report, as it may undermine the independence of the opinion on fitness subsequently expressed. That being said, Mr Walsh was not at the time strictly seeking an opinion on fitness to be tried.

26. [91]

    Dr Rosenfeld subsequently prepared a second report, dated 7 September 2022, in which he stated that the applicant’s condition had “prominently affected frontal lobe executive function”. It appears he had not interviewed the applicant again at this stage, but he had been asked to express a view on fitness. He explained:

27. [92]

    A limitation of this evidence is that how dementia affects a person is a matter of degree. It is commonly a degenerative condition. A person may be diagnosed as suffering from dementia whilst still being high functioning. Moreover, this report did not grapple with how the conditions diagnosed would or may have affected the applicant in the particular conditions of his trial. Additionally, in none of his reports did Dr Rosenfeld refer in terms to the criteria set out in s 36(1) of the Act, although he said that in oral evidence that he had had that in mind when preparing his reports.

28. [93]

    Dr Olav Nielssen, also called by the applicant, is a very experienced psychiatrist who has regularly prepared medico-legal reports, including with respect to fitness to plead. He first interviewed the applicant on 24 January 2022, about two months after the trial, and prepared his first report on 2 February 2022. He interviewed the applicant “by audio-visual link” whilst the applicant was sitting in the passenger seat of his car, with the applicant’s wife in the driver’s seat. I infer that this was not an extended interview. He had been provided with Dr Rosenfeld’s first report and concurred with his diagnosis.

29. [94]

    Dr Nielssen conducted a further audio-visual interview with the applicant in April 2022, and prepared a second report dated 4 September 2022. He noted that the applicant’s “performance was better during the recent interview when compared to the interview conducted three months earlier”. He addressed in terms the s 36(1) criteria:

30. [95]

    He concluded that the applicant “was probably not fit for trial during the period in which the trial took place”. This conclusion must have been based upon criteria (e), (g) and (h), as his comments did not suggest a difficulty arose on the other criteria. As to his comment on (e), that the applicant “would be unable to follow the detail of any proceedings” is not a necessary feature of being able to “understand what is going on in a general sense”. As to (g), it is notable that Dr Nielssen considers that the applicant was able to make his version of the events known. His concern seems more to be about the manner in which he gave, and was able to give, his evidence. That understanding is reinforced by the comment in the report on (h), which is to similar effect to the comment on (g). Dr Nielssen does not elucidate in his report how giving instructions would be adversely affected, and there seems to be some inconsistency in that regard with the conclusion on (f), which accepted that the applicant could understand the substantial effect of evidence given against him in court with the assistance of his legal advisers and wife. In oral evidence he clarified that the impairment he was addressing related to his ability to give evidence to the Court. The comment on (h) is also rather qualified, saying that the impairment in communication might affect the reliability of instructions and his evidence.

31. [96]

    In oral evidence Dr Nielssen said that all of (e), (g) and (h) were “in issue for the same reasons I think”. It is apparent that Dr Nielssen’s concern relates in substance to how the applicant gave, and was able to give, his evidence, including as regards how the applicant presented to the jury.

32. [97]

    In response, the Crown called evidence from a psychiatrist, Dr James Baée. Dr Baée has substantially less experience than the other two doctors, having only finished his medical degree in 2016, and become a fellow of the College of Psychiatrists in February of this year. He worked for Justice Health for five years up to that time, and is now a visiting medical officer and in private practice. He indicated that in the last two years or so he had been “working in the forensic system”, where he had regularly had to consider issues of fitness to be tried, albeit generally on an informal basis (which I took to mean that he had not produced formal reports on the issue). Despite his relative juniority, his report of 5 May 2023 was clearly expressed and his conclusion on fitness better supported by reasoning than the written reports of the other two experts referred to above. In the concurrent session his evidence was given carefully, giving reasons for his (respectful) disagreement with his more senior colleagues. The applicant sought to undermine his evidence as this was the first medicolegal opinion that he had given as a qualified psychiatrist. I prefer to judge his evidence on its merits.

33. [98]

    Dr Baée prepared a report dated 5 May 2023. He had interviewed the applicant in person for some 2.5 hours on 21 April 2023, reviewed the prior reports and medical history, reviewed the transcript of the trial, and spoken to the applicant’s wife by phone for some 30 minutes. He also conducted two cognitive tests which are discussed further below. He accepted that the applicant suffers from dementia, probably of vascular origin, of “mild severity”. He classified this as a “cognitive impairment” for the purposes of the Act. Dr Baée addressed each of the criteria set out in s 36(1) of the Act. Significant parts of the report included the following:

34. [99]

    Drs Rosenfeld and Nielssen were asked to do further reports. Dr Rosenfeld saw the applicant in the former’s rooms in Sydney on 27 April 2023, the applicant attending by himself (his wife having suffered some health complications). Dr Rosenfeld conducted some cognitive testing. By that stage some 17 months had passed since the trial. He said:

35. [100]

    Dr Rosenfeld’s conclusion about being “unfairly compromised in his ability” is a normative one. That ultimately is a matter for the Court (which is not meant as a criticism of Dr Rosenfeld for having expressed that view).

36. [101]

    Dr Nielssen also held a further interview with the applicant, seemingly in the week or so prior to his further report of 9 May 2023. He noted that “Mr Roberts attended the appointment on his own, and reported that he travelled to Sydney by train, and was able to navigate from the Newcastle platform to the Eastern Suburbs line”. The applicant said that he had read some 40 books in his 13 months in custody, although he did not remember the names of any of the books. Dr Nielssen said in his report:

37. [102]

    Turning to cognitive testing, in 2016, seemingly in the course of general health testing, the applicant scored 23/30 on the Montreal Cognitive Assessment tool, where a result of 24 or less is said to indicate increased likelihood of cognitive impairment. Dr Baée had the applicant perform two “brief” cognitive assessments tests. The first was the Addenbrookes Cognitive Examination-III (ACE). On the first he scored 80/100 where 83-88 indicated mild cognitive impairment, and less than 83 indicates dementia. However, on the component parts of this test the main problem revealed was with memory, for which the score was 15/26 (accounting thus for 11 of the 20 points below 100 on the applicant’s total score). Dr Baée indicated that the other four component parts tested related more to executive function which is located typically in the frontal lobe, thus, in his view, undercutting the concern expressed by Dr Rosenfeld about the applicant’s frontal lobe executive function. The second test was a Frontal Assessment Battery (FAB) on which he scored 15/18, which Dr Baée said “indicated no significant impairment in executive function”. Dr Baée said in oral evidence that this test was “designed to specifically look for executive dysfunction and any score below 13 is considered significant executive impairment and he scored 15 out of 18”.

38. [103]

    When Dr Nielssen interviewed the applicant for his reply report he also administered the ACE test, and this time he scored 84/100. The score breakdown was not noted in the report, but Dr Nielssen said that “most points [were] lost in tests of memory and language function”, whilst also noting that the fact the applicant had recently done the test with Dr Baée might have improved his score. Dr Nielssen described the two tests at issue as “fairly crude measures of abstract thinking and decision-making ability”. On the other hand, in oral evidence the test results were the first thing Dr Nielssen mentioned when explaining his conclusions near the beginning of the oral evidence, thus indicating he did attribute significance to those results despite their limitations. Dr Baée accepted that the tests were by no means definitive but still regarded them as useful.

39. [104]

    The three experts met in a brief conclave immediately before the hearing, but the resulting joint report did not really advance matters. By that stage all three had listened to relevant parts of the recording of the applicant giving evidence. The joint report does record Dr Baée agreeing that “a significant question does arise” as to the applicant’s fitness. However, he clarified in oral evidence that he meant a significant question had arisen which, to his mind, had now been answered:

40. [105]

    In oral evidence Dr Rosenfeld sought to emphasise that brain scans showed shrinkage in the applicant’s brain, including in his frontal lobes. However, it emerged that this was a conclusion based on his experience on having viewed many such scans rather than a comparison with past scans of the applicant, in circumstances where people’s brain sizes can vary. This conclusion is thus of limited weight. In any event, Dr Rosenfeld said that he considered “the most important clinical information one has is the history”, being “an objective outline of what occurred to someone”, in particular from the applicant himself along with his wife.

41. [106]

    Dr Rosenfeld responded to Dr Baée’s comments about the frontal lobe by saying that “you can’t separate out the brain into all these very neat little” compartments. He said that “working memory” is a function of the frontal lobes, and that impairment of that working memory impaired engagement with longer term memory:

42. [107]

    There is no reason to doubt the correctness of this analysis of the relationship between working and long term memory, nor to doubt that there was likely to have been some impairment of the applicant’s working memory and executive functioning. But these statements are of their nature rather abstract. The best evidence of whether any such difficulties arose is in the trial transcript. When asked when in the trial such a difficulty occurred, Dr Rosenfeld said: “it occurs when Mr Roberts has to cast his mind to things he may have said and then think about, well, what did I say? Is that consistent with what I’ve just said?” There were two notable examples of that: with respect to the applicant’s failure to remember the “I assumed” evidence he had given earlier in relation to the accusation of having touched his elder daughter’s breasts (as referred to above at [81]), and in forgetting that he had said he lived at Excelsior Parade for two years.

43. [108]

    More generally, Dr Baée made the following observations about the applicant’s testimony, in terms which I regard as fair and accurate:

44. [109]

    Counsel for the Crown took Dr Rosenfeld and Dr Nielssen through various parts of the transcript of the applicant’s evidence. Some of their responses are noted in the table at Annexure 1. They accepted that various parts of the transcript manifest the applicant being able to engage with and respond to the questions asked of him. In the context of one such part of the transcript, this exchange occurred:

45. [110]

    That exchange illustrates that the concerns raised are ones of degree.

46. [111]

    Dr Baée summarised his view of the applicant’s ability to give evidence and follow the questions:

47. [112]

    Again, that view accords with my own.

48. [113]

    There was some discussion of various instances in the transcript where the trial judge directed the applicant about answering questions – for example, the need to wait for completion of a question, respond to it, and not ask questions of the cross-examiner. Dr Rosenfeld said that the applicant “had to be repeatedly told by the judge [to stop interrupting questions] until he finally did, so that’s just absolute, typical and characteristic of a frontal lobe disinhibition”. On the other hand, Dr Baée pointed to an instance where the applicant said – in a context where he thought, wrongly, that the questioner had not finished – “No, I won’t [ie continue], I’ll just wait for you”. Dr Baée said that this manifested politeness, learning from his mistakes, and having some degree of inhibition. From my review of the transcript, whilst the trial judge did pull the applicant up a number of times about answering questions, this was not a dominant feature of the questioning, nor substantially out of common experience with witnesses dealing with serious allegations against them.

49. [114]

    Furthermore, unlike the expert witnesses I have read the transcript of all of the evidence. It is notable that in many instances during the lengthy course of the complainant’s evidence the trial judge intervened similarly to the manner she had employed with the applicant, seeking that the complainant wait for and focus on answering the questions asked. Trial judges take a range of approaches to how much they should seek to keep a witness focused, only, on being responsive to asking questions. The trial judge in this case was somewhat more on the interventionist side of the spectrum (that is not a criticism of her Honour). That fact tends to undermine the significance attached to these interventions by the experts.

50. [115]

    The point about his manner of answering questions links to a particular concern raised a number of times by Dr Nielssen relating to how the evidence of the applicant would appear to the jury. For example, he said the following when asked about the applicant’s response to a particular set of questions:

51. [116]

    It may be accepted that the applicant’s dementia may have had some effect on his presentation, including because of a degree of disinhibition.

52. [117]

    Dr Nielssen said that criterion in s 36(1)(g) was not met – relating to making a defence or answer to the charge – that “in terms of being able to retain what was said to respond to each individual allegation, to provide a coherent testimony in his examination and cross-examination, he wasn’t able to. Therefore, he was unfit according to that criterion”. I disagree with that characterisation which, in my view, is not consistent with a fair review of the evidence.

53. [118]

    Dr Nielssen also said that various parts of the evidence showed “a lack of inhibition and it definitely shows a lack of ability to concentrate and, and, and a lack of self-awareness in the kind of answers that he’d give, given his situation”, and that these points were not minor but “quite disabling”. Again, that is not consistent with what I regard as a fair review of the whole of the transcript. The applicant gave evidence over a lengthy period which, for the most part, manifest concentration and a clear ability to understand and respond to the questions asked of him, sometimes in significant detail.

54. [119]

    Dr Nielssen said, in further support of his conclusion on (g), that the applicant’s evidence “wasn’t satisfactory”. He explained in that regard that “[i]t’s whether he was able to give coherent and reliable evidence and whether he was able to give evidence fairly in the sense that what, what was we know to be the effect of dementia on, appeared to others to be that he was unconvincing”. Asked who the “others” were that he was referring to he identified the prosecutor, who accused the applicant of being argumentative, the jury, and generally “people who are listening to his evidence”. When asked how he knew it appeared to others that the applicant was unconvincing, he said “[t]hat’s what I’m assuming that it must have looked like just based on listening to the, the transcript of the evidence”. In the end, thus, his reference to how it appeared to others was speculative. That the prosecutor suggested in closing that the applicant was argumentative represented him making submissions on how the applicant presented, not reaching a conclusion as to whether the applicant was convincing. As for the jury, it is evident from the verdicts that the jury did not find the applicant’s denial of counts 1, 3 and 5 convincing. It is fallacious to suggest that that, of itself, indicates that the applicant was at some disadvantage in seeking to convince them.

55. [120]

    Dr Rosenfeld’s evidence on criterion (g) included the following:

56. [121]

    This evidence suggests that Dr Rosenfeld was applying something of a standard of perfection in considering the issue of fitness: relevantly, could the applicant follow all the evidence, understand all the issues and recollect all the important aspects that he needed to recollect. That is not what is required by Presser or s 36.

57. [122]

    The applicant argued that certain things said by the Crown in its closing address to the jury also constituted or contributed to there being a miscarriage of justice when account was taken of the issue as to fitness. The Crown submitted that such an argument did not fall within the ground of appeal. Yet ground 1 refers to a miscarriage having occurred “by reason of the fact that the appellant was not or may not have been fit to stand trial”. That expression is sufficiently broad to encompass prejudice to the applicant arising because advantage was sought by the Crown below from evidence that, in retrospect, is argued to have been affected by fitness issues. Counsel for the Crown ably dealt with the issues in oral address. The applicant should be permitted to rely on this argument.

58. [123]

    Part of the prosecutor’s address that was complained about was the following, in relation to the applicant’s claim that he had only taken the complainant on one camping trip:

59. [124]

    The cross-examination relied upon is relatively unremarkable. As noted in Annexure 1, one may or may not consider the answer – “[b]ecause there was no need to” – to be odd, but the applicant’s answer to the next question explained it, namely that he did not want to take another trip. The Crown’s submission that that answer does not make sense if the trips were enjoyable does not appear unfair even with the benefit of hindsight.

60. [125]

    More significantly, the applicant drew attention to the following further part of the Crown’s closing (emphasis added):

61. [126]

    The submissions of the Crown just quoted were not entirely unanswered. Senior counsel for the applicant said the following to the jury in his closing, emphasising the difficulty of recalling events after a significant delay, along with his client’s age:

62. [127]

    In her summing-up the judge directed the jury about the prejudicial effects of the substantial delay in the prosecution being brought in relation to the applicant’s ability to defend himself, including that delay “has an impact on the memory of witnesses and potential witnesses”.

63. [128]

    Senior counsel for the applicant put the following to this Court, referring to the portion of the closing address in question:

64. [129]

    As the Crown noted, a similar type of argument was put in Rivkin, separately to the claim about fitness per se. The core argument was that “the jury may have considered the appellant's behaviour during the trial, including his responses to questioning, as having reflected adversely upon his credibility, without being aware that he had an undiagnosed brain tumour, which may have influenced his behaviour and his responses” (at [306]). This Court rejected the argument, concluding as follows:

65. [130]

    The relevant argument in the present case was focused particularly on the submissions of the Crown about the manner and content of the applicant’s evidence. Put simply, the applicant’s argument on this point was that answers and conduct which may well have been a product of a demented mind were used to suggest the applicant was a liar. It is possible that the answers in question – in particular his misremembering his evidence about Excelsior Parade and his denial of the “I assumed” statement – were affected by his dementia. But whether affected by dementia or not, the fact that it was a failure of memory was obvious. Such a failure is not especially surprising for a person of the age and in the position of the applicant. Senior counsel for the applicant addressed the memory issue in his closing submissions.

66. [131]

    As for being argumentative and obstructive, from my review of the evidence that was a slightly exaggerated submission by the prosecutor. In any event many witnesses are like that. The applicant had run an apparently various small businesses, including a successful bakery business with a number of employees. Parts of the evidence, aside from the transcript, suggest he was not a man who suffered fools gladly.

67. [132]

    I am not persuaded that the impugned portions of the prosecutor’s closing addressed, whether considered by itself or together with the other matters addressed above, was such as to constitute a miscarriage of justice.

68. [133]

    In summary:

    1. (1)

       Two out of three experts considered that the applicant was not fit to stand trial. However, the issue is a mixed question of fact and law; it is not resolved simply by expert say-so.

    2. (2)

       Dr Rosenfeld and Dr Nielssen, at least in part, applied too high a standard as to what is required for fitness to plead. For Dr Rosenfeld, that is illustrated by the exchange quoted at [120] above. For Dr Nielssen, it is illustrated by the facts that in his second report he said with respect to criterion (e) that the applicant “would be unable to follow the detail of any proceedings”, where that is not required by criterion, and as regards criterion (h) that his impairment in communication might affect the evidence the applicant was able to give (see [95] above).

    3. (3)

       The focus of the applicant’s evidence and argument was not on his ability to give instructions, identify his defence, or to follow the course of the proceedings generally; rather, it was about his ability to give evidence and on his manner of presentation to the jury.

    4. (4)

       The applicant suffered from dementia at the time of the trial. How that affects a person – and how it affected the applicant in particular – is a question of degree. Cognitive testing suggested that the main effect it had on him was with respect to memory. However, it would likely also have had some effect on his executive functioning and working memory, which could affect his ability to grasp certain questions, to recall earlier evidence and may have affected his self-awareness as to his presentation.

    5. (5)

       There were some points in the applicant’s evidence where he was confused either as to the meaning of the questions or in his memory. But those points of confusion or gaps or errors in memory were obvious, and not of a surprising kind given his age and the long passage of time since the events in question.

    6. (6)

       He had some memory lapses and instances of confusion. However, the half dozen or so examples identified by the applicant are but a small portion of the whole of his evidence.

    7. (7)

       The two most significant memory lapses related to the period of time he had resided at the house on Excelsior Parade, and his denial of having made a statement in earlier evidence connected with the allegation of having touched his elder daughter’s breasts. The first of those was not very consequential, as it related to a matter on which he had no apparent incentive to lie at the time the question was put, and the inconsistency of his evidence was obvious and itself indicated he had some issues with his memory. The latter was more significant, as it became a basis for a credit attack by the prosecutor in cross-examination and in closing submissions. That being said, the fact that it was a failure of memory was obvious, such a failure is not surprising in the circumstances, and senior counsel for the applicant addressed the memory issue in his closing submissions.

    8. (8)

       The applicant was occasionally argumentative and non-responsive. It can be accepted that some of this may have been due to a degree of disinhibition connected to frontal lobe damage. But his manner was not altogether out of the ordinary, as many witnesses manifest in such a way. As Mr Walsh accepted (see above at [82]), there is little in the transcript to differentiate it from what one might see with many other witnesses who are not suffering from cognitive impairment.

69. [134]

    It has been established that the applicant’s capacity to give evidence was somewhat affected by his dementia, and reduced in comparison to how he may have been able to give evidence if he had not had 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 involving comparison of what the position of the accused would have been in other circumstances. So much was explained in Rivkin at [298]-[300].

70. [135]

    As referred to above, Mr Rivkin, who had had problems with depression and bipolar disorder, was at the time of his trial also suffering from the effects of an as yet undiagnosed brain tumour. The solicitor of the accused gave evidence that “[d]uring the course of the trial I had concerns about Mr Rivkin's mental condition and had thought that he was behaving boldly and perhaps self-destructively”, which concerns were shared by counsel (at [251]). There was medical evidence that the tumour likely caused frontal lobe dysfunction. After the tumour had been diagnosed and removed a “distinct change in the performance of the appellant” was observed, in particular “the disappearance of 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 appeal was dismissed on the basis that there was no evidence Mr Rivkin was unable to give instructions or follow the course of proceedings; the transcript indicated he had had a clear understanding of what was involved in the offence charged and was able to make an answer; and that a mere reduction in his capacity and his ability to present an answer did not suffice to establish a lack of fitness (at [298]-[303]).

71. [136]

    The Court said the following, relevant to the accused’s presentation:

72. [137]

    In Feili this Court rejected an appeal from the fitness determination of a trial judge where the accused had a depressive disorder, in connection with that disorder was the accused not getting proper night-time sleep during the course of the trial, and as a result was regularly falling asleep during the course of the trial itself. The trial judge held he was fit nonetheless because ameliorative measures could be taken to deal with the situation, the accused was capable of understanding the proceedings so as to be able to make a proper defence, and because – applying Rivkin – reduced capacity did not establish unfitness (see at [29] and [52]). This Court upheld that judgment not only because no House v The King error was established but because it agreed with the trial judge’s conclusion of fitness (at [54]).

73. [138]

    The analysis in Rivkin is apposite here. I accept that the applicant may have been somewhat less argumentative when giving evidence, and better at responding to questions and remembering his earlier evidence, without the degree of dementia that he suffered. But that does not suffice to establish he was unfit to be tried. As discussed above at [17], the minimum standard for fitness to be tried is not a high one. As various judges have explained, were it otherwise many accused people would not be fit to stand trial, with the consequences that can then follow.

74. [139]

    The applicant gave evidence over an extended period which, by and large, was coherent, clear and sometimes detailed. His manner of presentation was not especially unusual in a context where serious allegations were made against him which he strenuously denied. It is clear that he was able to “follow the course of the proceedings so as to understand what is going on in a general sense”, to quote criterion (e). It is clear that he was able to “make a defence or answer to the charge”, to quote criterion (g), even if he was not able to make quite as good a defence or answer as he would have been able to do without his dementia. As for criterion (h), the applicant’s case was not that he was unable to instruct his legal representative so as to mount a defence. Rather, it was that he was unable to “provide [his] version of the facts … to the court if necessary”. Yet he did provide his version of the facts to the Court at length; not perfectly, but perfection is not required; not as well as he may previously have been able to do, but that is not the issue.

75. [140]

    Taking account of all the evidence I am comfortably satisfied that the applicant was fit to be tried when his trial occurred. No miscarriage of justice has been established. It does not appear unjust or unsafe to allow the verdict to stand. Ground 1 of the appeal should be dismissed.

Orders, including as to non-publication

1. [141]

   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. [142]

   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. [143]

   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. [144]

   In my view the orders of the Court should be as follows:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

   3. (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. [145]

   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. [146]

   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. [147]

   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. [148]

   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. [149]

   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. [150]

    I agree with the orders proposed by Yehia J.

Ground 1 – A miscarriage of justice occurred by reason of the fact that the applicant was not or may not have been fit to stand trial.

1. [151]

   I have had the significant benefit of reading the judgment of Kirk JA with respect to ground 1. I am grateful to his Honour for the comprehensive analysis of the relevant cases and his Honour’s thorough summary of the evidence relating to this ground. In determining whether a miscarriage of justice occurred by reason of the fact that the applicant was not or may not have been fit to stand trial, Kirk JA has concluded that the test in R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 (RTI) does not apply because the statutory context has changed since that case was decided. Instead, his Honour applies a more intensive approach to review than was indicated in RTI.

2. [152]

   I am unable to agree that RTI and the cases on which it is founded, are distinguishable and the test adopted is not binding in this case. In setting out my reasons, I will endeavour to avoid repetition of the cases and extracts referred to in the judgment of Kirk JA, although some reference to them is necessary.

3. [153]

   RTI was decided at a time when the relevant legislative regime was that set out in the Mental Health (Criminal Procedure) Act 1990 (NSW) (MHCPA). The issue there was whether a miscarriage of justice occurred due to the absence of psychiatric and psychological evidence at the accused’s two trials which related to his fitness to stand trial at the relevant time.

4. [154]

   Howie J quoted from the dissenting judgments of Gaudron and Hayne JJ in Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 (Eastman HCA 2000) at some length. His Honour also relied upon the earlier High Court decisions in Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18 (Ngatayi), and Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 (Kesavarajah).

5. [155]

   In Eastman HCA 2000, Gaudron J stated at [87]:

6. [156]

   Hayne J, in the same case, stated at [319]:

7. [157]

   Following the approach taken in the earlier High Court cases, Howie J stated what has been referred to as the RTI test, in the following terms at [31]:

8. [158]

   It was unnecessary for the court to determine whether the accused had in fact been unfit for trial. The characterisation of the RTI test as a “lower” test than a more intensive review of whether an applicant was in fact unfit to stand trial, is not a matter that militates towards rejection of the test. The RTI test requires an applicant to establish that a real and substantial question is raised, as to whether the applicant was unfit to be tried before a conviction is set aside. It also requires a consideration by this Court of whether, had the question been raised before or during the trial which led to the conviction, the court acting reasonably, must have found the accused was fit to stand trial. While this is a lower test than the more intensive review of whether an applicant was in fact unfit to stand trial, it does not set a low bar. An applicant must show that the material gives rise to a real and substantial question about fitness. I do not agree that the differences in approach between the RTI test and a more intensive review gives rise to an oddity that might encourage parties to decide not to take the point at first instance for strategic reasons.

9. [159]

   In my experience, where the conduct or presentation of an accused gives rise to a concern about fitness, his or her legal representative understands their obligation to raise the matter with the court in a timely fashion. There may be occasions, as existed here, where a concern was raised, but by reason of a busy practice or the momentum of a trial that has already commenced, a solicitor fails to obtain the necessary expert material to raise fitness. However, that failure is not motivated by strategic reasons.

10. [160]

    In concluding that the RTI applies in this case, I rely upon the following reasons. Firstly, the primary justification for moving away from the RTI test is that the premise of the RTI line of authority is that the primary decision-maker on the question of fitness, is a body other than a judge, and the independent decision-making role of that body must be respected. That premise is said to no longer apply in light of the new Act, namely, the Mental Health and Cognitive Impairment Forensic Provision Act 2020 (NSW) (the Act) s 44. The identity of the decision maker as to the question of fitness, is not, in my view, determinative of the appropriate test to be applied by this Court when considering a ground of miscarriage of justice in this case.

11. [161]

    The Act commenced operation on 27 March 2021. For the reasons set out by Kirk JA at [8]–[12], which are accepted by the parties, I agree that issues concerning the fitness of the applicant fell to be determined by reference to the Act. Section 44(1) provides that the question of a defendant’s unfitness to be tried for an offence is to be determined by the judge alone.

12. [162]

    The procedure for determining the question of fitness, namely, by the judge alone as provided for in s 44(1) of the Act, is different to that which existed under the MHCPA before 1 January 2006. Up until that date, the MHCPA provided that the question of a person’s unfitness to be tried for an offence is to be determined by a jury constituted for that purpose: see s 11.

13. [163]

    However, even before 1 January 2006, the MHCPA provided that a person’s unfitness to be tried for an offence could be determined by the judge alone if the person so elected and the judge was satisfied that the person, before making the election sought and received advice in relation to the election from a barrister or solicitor, and the prosecutor consented: see s 11A of the MHCPA. While this may not have been the primary position under the previous legislation, in practice it was not unusual for the issue of fitness to be determined by the judge alone.

14. [164]

    The option of an accused electing to have the question of fitness determined by the judge, pursuant to s 11A of the MHCPA, was referred to by this Court: see R v Subramanian [2002] NSWCCA 372; and discussed more comprehensively in R v Stephen Mifsud (Court of Criminal Appeal (NSW), 8 November 1995, unrep).

15. [165]

    Section 11A of the MHCPA was repealed on 31 December 2005 and s 11 was amended to provide:

16. [166]

    Section 11, as amended, commenced operation on 1 January 2006. The Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (NSW), which commenced operation on 1 March 2009, provided for the same procedure with respect to a determination of the issue of fitness.

17. [167]

    Section 44(1) of the Act is in precisely the same terms as its predecessor. The Act has not, therefore, introduced a new procedure with respect to the determination of whether an accused is unfit to stand trial. By virtue of the amendment to s 11 of the MHCPA, the decision-maker with respect to that issue has been, since 2006, the judge.

18. [168]

    Although the High Court cases upon which RTI was decided all involved legislative regimes where the relevant primary decision-maker was not a judge but a jury or a Tribunal, 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.

19. [169]

    RTI involved a consideration of the provisions under the MHCPA, which allowed for a determination of fitness by the judge alone. The identity of the decision-maker did not warrant departing from the approach taken in the High Court, although I accept it was not specifically addressed in RTI.

20. [170]

    Secondly, as noted by Kirk JA at [32], the decision in RTI has been applied in a number of subsequent decisions of this Court: see R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7; Robinson, Clifford Mark v R [2008] NSWCCA 64.

21. [171]

    Following the amendment of s 11 of the MHCPA, the RTI test continued to apply: see JM v R [2017] NSWCCA 138; Hofer v R [2019] NSWCCA 244; Kostov v YPOL Pty Ltd [2018] NSWCA 306. In none of these cases was the identity of the decision-maker a relevant consideration as to the appropriate test to be applied, where a complaint of miscarriage of justice was raised as a result of an unresolved question about the applicant’s fitness.

22. [172]

    Thirdly, the parties accepted that the RTI test applied. Although the parties engaged in discussion about whether the RTI test was the applicable test, that discussion took place on the second day of the hearing of the appeal. I am not satisfied that the issue was fully argued.

23. [173]

    Mr Game SC, on behalf of the applicant, submitted that although the language in the legislation has changed, the underlying principles as enunciated in the dissenting judgments in Eastman HCA 2000 have not. The relevant question remains whether a miscarriage is occasioned because there was an undetermined question about whether the applicant had a fair trial in the absence of any determination about his fitness. The issue for this Court is whether the material raises a real and substantial question to be considered about the accused’s fitness, not whether the appellate court was persuaded that the accused was not fit at the relevant time.

24. [174]

    The Crown, in this Court, was attracted by the suggestion that the RTI test may no longer apply and a more intensive review of the question of fitness was required. While the Crown was attracted by the suggestion and did not wish to be heard against it, he did not make submissions in support of it, but instead addressed the RTI test, ultimately submitting that this Court would conclude 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.

25. [175]

    It seems to me that had the applicant understood that the appeal would be decided on the basis of a newly formulated test, namely, whether this Court is satisfied on the balance of probabilities that the applicant was unfit to stand trial, he may have sought an opportunity to rely on further evidence. Admittedly, three experts were called and cross-examined in this Court. However, that was on the basis that the parties understood that the test to be applied, was the RTI test.

26. [176]

    Fourthly, a test requiring a more intensive level of review in this Court, would involve this Court hearing and considering evidence, which will include but not be limited to, expert evidence, to resolve questions of fact. True it is, that there would be a level of duplication of resources in the event that this Court were to determine that the appeal be upheld, convictions quashed, and a retrial ordered, because the trial judge would then have to determine the question of fitness. However, the enquiry in this Court involves three judges. There is also a risk that the time and resources required to determine the question of fitness to finality would extend, in many cases, beyond two days. Ultimately, however, the question of efficiencies and judicial resources, while important, is not the primary consideration.

27. [177]

    Applying the RTI test, I turn to consider whether there is a real and substantial question that the applicant may have been unfit to stand trial.

Does the material before this Court raise a question about the propriety of the conviction because the applicant may have been unfit to stand trial?

1. [178]

   I am comfortably of the view that the evidence before this Court raises a question about the propriety of the conviction because the applicant may have been unfit to stand trial. I have come to that conclusion based upon the medical evidence, the evidence of Mr Walsh, and the transcript and recording of the applicant’s evidence. Whether or not this material establishes that the applicant was in fact unfit to stand trial in November 2021, is not a question I find necessary to answer, given that I am satisfied that the RTI test applies.

2. [179]

   Although there is a dispute between the experts about whether the applicant meets the criteria under s 36(1) of the Act, the opinions expressed by Professor Rosenfeld and Dr Nielssen are a sufficient basis to conclude that the RTI test is met.

3. [180]

   The medical evidence has been summarised comprehensively by Kirk JA. It is not necessary, therefore, to repeat that exercise in this judgment. I will however, refer to some of the evidence in the course of providing reasons.

4. [181]

   On the first day of the appeal, the experts, Professor Rosenfeld, Dr Nielssen and Dr Baee, were afforded an opportunity to conduct a conclave, to determine whether they could refine the issues between them. Exhibit B is the Memorandum setting out what the doctors agreed on and what they did not agree on.

5. [182]

   In relation to the applicant’s diagnosis, the experts agreed that the applicant did have dementia at the time of the trial, although did not agree on the extent of impairment. Professor Rosenfeld confirmed that the applicant had a vascular brain disease, confirmed by MRI, resulting in permanent and progressive impairment in memory language and executive function. Dr Nielssen agreed with the diagnosis of dementia, adding that the applicant had disabling memory impairment. Dr Baee confirmed that the applicant had mild dementia of vascular origin. He was still able to function but was impaired in complex daily activities, such as managing financial affairs.

6. [183]

   In answer to the question about whether a significant question arises as to whether the applicant was fit for trial in November 2021, all of the experts agreed that there was a significant question arising, given the diagnosis. During the course of oral evidence, Dr Baee expanded upon the agreement contained in Exhibit B, stating:

7. [184]

   In further clarifying his answer to question 2 in Exhibit B, Dr Baee said that it would be worthwhile conducting further examinations and obtaining further reports. [2]

8. [185]

   While there was substantial agreement between the experts in relation to questions 1 and 2 in Exhibit B, the primary area of disagreement related to the question about whether the applicant met all the criteria set out in s36(1) of the Act. In answer to this question, Professor Rosenfeld and Dr Nielssen opined that the applicant was unfit due to cognitive impairments resulting from underlying dementia.

9. [186]

   By reference to the criteria set out in s 36 of the Act, Professor Rosenfeld and Dr Nielssen maintained that the applicant did not satisfy the requirements under s 36(1)(e), (g) and (h), namely, to follow the course of the proceedings so as to understand what is going on in a general sense; to make a defence or answer to the charge; to instruct his legal representative so as to mount a defence and provide a version of the facts to his legal representative and the court if necessary.

10. [187]

    Dr Baee concluded that the applicant was fit to stand trial in November 2021. He further concluded that the applicant did not have significant executive dysfunction during the trial and met all the criteria for fitness under s 36 of the Act, including being able to maintain concentration, follow the course of the proceedings and instruct his legal representatives.

11. [188]

    Dr Baee confirmed that the applicant scored 80 out of 100 on the Addenbrooke’s Cognitive Examination III (ACE III) test, which is a score suggestive of dementia. The applicant scored 15 out of 18 on the Frontal Assessment Battery (FAB) which is designed to specifically look for executive dysfunction. Any score below 13 is considered a significant executive impairment. The experts agreed that the cognitive measures are useful in measuring cognitive impairment, but they are imperfect tools and should be relied upon in conjunction with the results of clinical assessment and information about functional performance, including information from others who live with or care for the individual being assessed.

12. [189]

    The applicant had been assessed in 2016 using the Montréal Objective Cognitive assessment tool, where he scored 23 out of 30, a measure consistent with mild cognitive issues. There appears to have been no dispute that the applicant’s cognitive issues existed from at least 2016.

13. [190]

    Dr Baee placed a great deal of emphasis on the recording and transcript of the applicant’s evidence at trial, concluding that while there was some difficulty in remembering details of events, the applicant was able to give evidence with respect to a number of areas that demonstrated a significant level of working memory.

14. [191]

    Professor Rosenfeld based his opinion on his clinical examination of the applicant, the history provided, corroborative reports from the applicant’s wife, test results, including brain scans, and listening to a recording of the applicant’s evidence at trial. He gave evidence that during the period encompassing the trial, cognitive impairments associated with the progressive dementing illness would have affected the applicant’s memory, cognition and executive function.

15. [192]

    Dr Nielssen also referred to having listened to the recording of the applicant’s evidence and concluded that the transcript and recording demonstrated that the applicant was affected by his dementia which manifested in language problems, memory problems, decision-making problems and a lack of self-awareness, all consistent with the presence of disabling dementia. [3]

16. [193]

    Both Professor Rosenfeld and Dr Nielssen were firm in their opinions that the applicant did not meet the criteria under s 36(1)(e), (g) and (h). Of significance to Professor Rosenfeld and Dr Nielssen was the presentation of the applicant during his evidence, as gleaned from the recording. It was noted, particularly during cross-examination, that he demonstrated a lack of inhibition and an inability to concentrate. The applicant’s disinhibition was said to be consistent with a person suffering from cognitive impairment and executive dysfunction.

17. [194]

    I have also had regard to the transcript and listened to the recording of the applicant’s evidence. While the applicant was able to understand and answer questions, there were occasions when the applicant was argumentative and other occasions when he demonstrated memory difficulties and a tendency to give unresponsive answers.

18. [195]

    By way of example, in his evidence-in-chief, the applicant responded to a question as to how long he had been living at a unit in Excelsior Parade, by saying that he had lived there for two years. In cross-examination, he denied that he had earlier said two years, and said it was only 6–8 months, maybe 9 months.

19. [196]

    On another occasion, the applicant denied having given earlier evidence regarding an incident with his daughter, JR, that he had “assumed she was thinking I touched her on the breast, and I said ‘I did not’”. [4] In light of his denials, that portion of his evidence was played back to him, demonstrating that was exactly what he had said.

20. [197]

    On other occasions, he displayed a degree of confusion and inability to focus on the question. At other times, he interrupted the questioner or gave unresponsive answers which required the trial judge’s intervention. While it is not unusual for a trial judge to intervene and direct a witness to focus on the question or wait until a question is asked, in this case, the trial judge intervened on no less than 16 occasions. The applicant’s counsel also felt compelled to cut the applicant off, in an effort to ensure that the answers were responsive to the questions. That occurred on at least 10 occasions.

21. [198]

    A number of other examples of difficulties with the applicant’s conduct or evidence are set out in the AWS’s at [47][a-l]. Accepting that there may be cases where such conduct can be explained simply by virtue of an individual’s personality type, the undisputed medical opinion of all three experts is that the applicant was suffering from dementia, albeit that the extent of cognitive impairment resulting from the dementia is in dispute.

22. [199]

    The jury were not to know that the applicant had dementia and associated cognitive difficulties. Instead, 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. [5]

23. [200]

    Mr Walsh was the applicant’s solicitor in the trial. He gave evidence on the appeal. Mr Walsh is an experienced lawyer of some 46 years. The majority of his practice is criminal trial work. He has represented the applicant since 2016. He confirmed that he became increasingly concerned about the applicant’s degree of confusion. He accepted that the applicant’s treating doctor, in a report dated 21 August 2020, suggested that there was a need for an urgent geriatrician assessment.

24. [201]

    Mr Walsh was candid in his evidence that he did not adequately apply himself to these issues. He found the case, and the issues that arose in the course of the trial, at times very difficult. He conceded that he should have done more to properly investigate these issues. He raised his concerns with Mr Johnson SC, who represented the applicant in the trial. However, they decided that there was insufficient material to raise the issue of fitness. No further reports were obtained to further investigate the issue.

25. [202]

    To be clear, I do not intend any criticism whatsoever in summarising the evidence of Mr Walsh. Mr Walsh was doing his best to assist this Court, in relation to the observations that he made of the applicant and his increasing concerns about the applicant’s mental state, culminating in concerns raised as a result of the applicant’s presentation when giving evidence. Having represented the applicant over a lengthy period of time, Mr Walsh became worried about the applicant’s conduct and was concerned about the impact it was having on the jury. He was worried that he was disinhibited and would go on at length and not effectively answer the questions. The issue of fitness was not raised, although Mr Walsh was troubled.

26. [203]

    The medical evidence, together with the evidence of Mr Walsh and my own assessment of the evidence of the applicant (formed by having read the transcript and listened to the recording of that evidence) raises a real and substantial question about the propriety of the conviction because the applicant may have been unfit to stand trial. I cannot make a finding 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.

27. [204]

    I would therefore uphold ground 1.

Ground 2 – The guilty verdicts regarding counts 1 and 5 on the indictment are unreasonable, or cannot be supported, having regard to the evidence

1. [205]

   This ground of appeal does not assert that the jury verdict on count 3 was unreasonable or cannot be supported on the evidence. The applicant limits his challenge to the guilty verdicts returned regarding counts 1 and 5. The prosecution case regarding all counts, relied on the jury accepting the complainant’s evidence as both credible and reliable. Although there is no separate ground complaining of “inconsistent verdicts”, the applicant does rely upon the not guilty verdicts with respect to counts 2 and 4, in support of the contention that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt in relation to counts 1 and 5.

2. [206]

   Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any information that might identify the complainant is prohibited. In order to preserve the anonymity of the complainant, all relevant witnesses will be denoted by letters of the alphabet.

Background Facts

1. [207]

   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.

2. [208]

   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.

3. [209]

   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.

4. [210]

   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.

The Crown Case and the Complainant’s Evidence

1. [211]

   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]

2. [212]

   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]

3. [213]

   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]

4. [214]

   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]

5. [215]

   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.

6. [216]

   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]

7. [217]

   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.

8. [218]

   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]

9. [219]

   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.

10. [220]

    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]

11. [221]

    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.

12. [222]

    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.

13. [223]

    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]

14. [224]

    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]

15. [225]

    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:

16. [226]

    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]

17. [227]

    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]

18. [228]

    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:

19. [229]

    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.

20. [230]

    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]

21. [231]

    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]

22. [232]

    In 2005, the complainant confronted her father and said as follows:

23. [233]

    During that confrontation, the complainant said to the applicant, “[y]ou have to admit it”. [52] He did not make any admissions.

Context Evidence

1. [234]

   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.

2. [235]

   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.

3. [236]

   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]

4. [237]

   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.

Tendency Evidence

1. [238]

   The Crown also relied upon tendency evidence. A summary of the tendency evidence is taken from the respondent’s written submissions.

2. [239]

   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.

3. [240]

   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.

4. [241]

   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.

5. [242]

   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.

6. [243]

   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]

Complaint Evidence

1. [244]

   [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]

2. [245]

   [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]

3. [246]

   [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:

4. [247]

   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]

5. [248]

   [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]

Investigation and Arrest

1. [249]

   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]

2. [250]

   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]

3. [251]

   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]

4. [252]

   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.

The Defence Case

1. [253]

   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:

2. [254]

   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):

3. [255]

   The applicant denied the allegations. In relation to count 1, the applicant agreed that he shared a two-person tent with the complainant when they went camping at Heaton’s Lookout. [94] The applicant denied reading the Bible to the complainant and explicitly denied that he read a passage to her about men lying with their daughters. [95] He agreed that he owned a Bible which he kept at home, but did not take it with him on the trip. [96] He denied putting his hands into the complainant’s flannelette pyjamas [97] and touching her breasts, bottom and vagina. [98] He further denied digitally penetrating the complainant’s vagina with his fingers. [99]

4. [256]

   In relation to count 2, the applicant denied that he took the complainant on a camping trip on the Central Coast near Budgewoi. [100] He denied that on the first and second night of that trip, he read the complainant a verse from the Bible. He denied putting his hands on the complainant’s vagina, her bottom, or her breast when they were in the tent. The applicant stated he would never do this because he “treasured her”. [101] The applicant denied, that on the second night, two boys visited their tent and that he sexually assaulted one of the boys. [102]

5. [257]

   In relation to count 3, the applicant stated that the complainant had a habit of jumping into the bed he shared with MR. He denied waking up in the bed alone with the complainant and denied touching her breasts, bottom, and vagina. [103] He also denied that he digitally penetrated the complainant’s vagina. [104]

6. [258]

   In relation to count 4, the applicant denied that he took the complainant to the Hilton Hotel in Sydney. [105] He denied sexually assaulting the complainant [106] and denied that he had penile-vaginal intercourse with the complainant. [107] He denied that he offered the complainant wine to drink. [108] He also denied asking the complainant “[d]o you think people think you are my girlfriend”. [109]

7. [259]

   In relation to count 5, the applicant denied that the complainant slept in the same bed with him after he had separated from his wife and moved back into Robey Road. [110] The applicant denied that he had touched the complainant in his bedroom, when the two of them were alone. He stated that there was never an occasion where he invited her to sleep in his bed. He denied having penile-vaginal intercourse with the complainant. [111]

8. [260]

   In relation to the business trip to Melbourne, the applicant agreed that they shared a room with twin beds, but denied that they shared a bed together. [112] He denied offering wine to the complainant at dinner [113] and denied that he ever gave the complainant Disprins. [114] He also denied confiding in the complainant about his marital problems. [115] He denied having penile-vaginal intercourse with her while she was asleep or unconscious. [116] He also denied that he said any words to the effect that she had a nightmare.

9. [261]

   In relation to the trip to Surfer’s Paradise, the applicant agreed that he and the complainant had stayed at The Pink Poodle Motel. [117] The applicant indicated that they shared a bed [118] but denied having penile-vaginal intercourse with the complainant. [119]

10. [262]

    In relation to the last category of tendency evidence relied upon by the Crown, the applicant agreed that he shared a double bed with the complainant whilst living at Excelsior Parade and also when staying at The Pink Poodle. He denied that they cuddled. [120] The applicant denied that he said to the complainant “[o]oh, nice little breasts”, while smiling and nodding his head approvingly. [121] In relation to the second category of tendency evidence, the applicant denied that he touched JR on the breasts. In relation to the third category of tendency evidence, the applicant agreed that he “wolf-whistled” [122] at the complainant. He also said that he displayed similar behaviour towards his wife, his ex-wife and his other daughters. [123] He disagreed that this was a sign of sexual approval. [124]

11. [263]

    He identified Exhibit WR3 as the letter he had received.

12. [264]

    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.

13. [265]

    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.

14. [266]

    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]

15. [267]

    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:

16. [268]

    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:

17. [269]

    He identified Exhibit WR3 as the letter shown to him by the applicant.

Summing Up

1. [270]

   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.

2. [271]

   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.

Markuleski Direction

1. [272]

   The trial judge also directed the jury in accordance with what is commonly referred to as the “Markuleski” direction, in the following terms:

2. [273]

   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]

3. [274]

   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]

4. [275]

   On 30 November 2021, the jury continued to deliberate. On that day, a further note was received which read as follows:

5. [276]

   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.

6. [277]

   On 1 December 2021, a note was received from the jury stating:

7. [278]

   Following discussions with the parties, the trial judge gave the jury a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. The jury was still unable to reach a unanimous verdict and requested that they break for the day and return the following day to continue deliberating. [137]

8. [279]

   On 2 December 2021, the jury indicated that they had reached a unanimous decision on two counts. They had not reached a unanimous decision in relation to the remaining counts but had reached a “very clear majority”. [138] The two counts upon which the jury had reached unanimous verdicts were counts 2 and 3. The jury returned a unanimous verdict of not guilty on count 2 and a unanimous verdict of guilty to count 3. The trial judge then directed the jury with respect to majority verdicts in relation to the remaining counts.

9. [280]

   The jury requested that they break for the day. The jury continued deliberating the following day when a further note was received advising that they had reached a majority verdict on counts 1, 4 and 5. The jury returned a majority verdict of guilty to count 1, not guilty to count 4 and guilty to count 5.

The Applicant’s Submissions on Ground 2

1. [281]

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

2. [282]

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

3. [283]

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

4. [284]

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

5. [285]

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

6. [286]

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

The Crown’s Submissions on Ground 2

1. [287]

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

2. [288]

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

3. [289]

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

4. [290]

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

5. [291]

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

6. [292]

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

7. [293]

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

Applicable Principles

1. [294]

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

2. [295]

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

3. [296]

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

4. [297]

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

5. [298]

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

6. [299]

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

7. [300]

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

8. [301]

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

9. [302]

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

10. [303]

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

Disposition of Ground 2

1. [304]

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

2. [305]

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

3. [306]

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

4. [307]

   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.

5. [308]

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

6. [309]

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

7. [310]

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

8. [311]

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

9. [312]

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

10. [313]

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

11. [314]

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

12. [315]

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

13. [316]

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

14. [317]

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

15. [318]

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

16. [319]

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

17. [320]

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

18. [321]

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

19. [322]

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

20. [323]

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

21. [324]

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

22. [325]

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