The RTI test for fitness to be tried when first raised on appeal continues to apply under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), notwithstanding the change from jury to judge-alone determination of fitness. The identity of the primary decision-maker under the Act is not a relevant consideration for the appellate test. Where an accused suffers from dementia at trial and the Crown relies on the accused's presentation as evidence of lying, and the jury is unaware of the dementia, this may constitute a miscarriage of justice. However, Kirk JA's dissent raises significant questions about whether the RTI test should continue to apply, and the issue was acknowledged as not fully argued. On unreasonable verdicts, where a witness's reliability is in issue, inconsistencies between accounts will not necessarily lead to a conclusion that the witness is unreliable on all matters, and not guilty verdicts on some counts do not necessarily require acquittal on all counts where there are qualitative differences in the evidence.
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