Roberts v R [2023] NSWCCA 187

In this matter, Greg Walsh previously represented William Keith Roberts (Applicant) in an application for leave to appeal arising from his conviction of historical sexual abuse of his daughter following a trial by jury in the District Court. He was 84 years old at the time of the trial and gave evidence. the Crown relied upon the manner in which he gave evidence in a particular way in support of the contention that he was lying in his evidence. he was found guilty on three counts and not guilty on two other counts and sentenced to a prison term of 5 years with a non-parole period of 2 years.

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

1. That a miscarriage of justice occurred by reason of the fact that he was not or may not have been fit to stand trial;
2. That the guilty verdicts on two counts were Unreasonable and cannot be supported having regard to the evidence.

Prior to the sentencing of the Applicant, reports have been obtained from experts that he was suffering from dementia at the time of the trial which affected his fitness to be tried. This issue was not raised at the trial and first raised on appeal. The hearing of the appeal, evidence was given by three experts as to the Applicant’s fitness. Greg Walsh and Matthew Johnston SC, who was Senior Counsel at the trial, also gave evidence. audio recordings of the Applicant giving evidence at trial was also relied upon.

‘The Court upheld ground one of the appeal by majority (per Yehia J and Davies J agreeing, Kirk JA dissenting) but unanimously dismissed ground two.

The issue of principle based upon R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283, is that the appellate court engages in a question that is not based upon the identity of the decision-maker but on whether a miscarriage of justice has been occasioned at [160] and [168].

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

The Applicant’s ‘argumentative and obstructive’ presentation, and his denials that he had given earlier evidence in a particular way, was ceased upon by the Trial Crown in support of the contention that the Applicant was lying in his evidence, at [193]. The jury did not know that the Applicant had dementia at [199].

Where a miscarriage of justice arises from the Applicant’s fitness to be tried with factual matters the subject of tested evidence in the appeal court, then miscarriage will only be made out if the Court is satisfied that the applicant was not fit to be tried or sufficiently persuaded that it appears unjust or unsafe to allow the verdict to stand: at [51], [52], [55]; MRW v R [2011] NSWCCA 260; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA29; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

 It was held that the Applicant’s capacity to give evidence was somewhat affected by his dementia and reduced in comparison to if he gave evidence without that condition. That does not suffice to establish that he was not fit to be tried. The legal requirement sets a minimum standard, not a relative one; at [127].

Mr Walsh gave evidence in the Court of Criminal Appeal and his evidence is referred to at [72] – [75].