The NSWCCA (Latham J, Spigelman CJ agreeing; Hulme J dissenting) quashed the conviction and ordered a new trial, holding that the possibility the appellant was unfit to be tried could not be excluded on the material before the Court. The majority applied the Eastman test — that the appeal must be dismissed only if the Court is affirmatively satisfied that a reasonable tribunal must have found the appellant fit — and found that one expert's firm opinion of unfitness combined with the other expert's acknowledged doubt about fitness, unresolved by the absence of evidence from trial counsel, meant the threshold for dismissal was not met. Hulme J in dissent held that the objective evidence of the appellant's functioning (intercepted calls, ERISP interview, employment history, HSC results) was irreconcilable with Dr Rowe's conclusions, and that the failure to call trial counsel or the appellant himself, without explanation, was fatal to the ground.
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