High Court Allows Appeal on Grounds of Procedural Fairness in DL v The Queen [2018] HCA 32

Thursday 9 August 2018 @ 11.24 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The High Court has unanimously allowed an appeal in the case of DL v The Queen [2018] HCA 32. The case concerned an appeal on the grounds of lack of procedural fairness over re-sentencing upon appeal.  In particular, the High Court noted that according procedural fairness required letting the offender know if an appellate court or judge is inclined to depart from the primary judge's findings.

Background to Case

The appellant, DL, was convicted of murdering a 15 year old girl by a jury when the appellant was 16 years old. The appellant denied involvement in the murder, or stated that he had no memory of the murder. The appellant did not argue mental illness or substantial impairment by abnormality of mind at trial. However during the sentencing hearing, psychiatric evidence was led by both the prosecution and the appellant. The appellant called an expert witness who stated their opinion that at the time of the offence the appellant was in an early stage of schizophrenia, while the prosecution evidence suggested that there may be another irrational but non-psychotic reason for the offence. The primary judge found that the evidence did not prove beyond reasonable doubt that the murder was intentional or premediated, and also considered favourably the possibility raised by the appellant that the appellant was acting under the influence of psychosis at the time.

The appellant then appealed to the Court of Criminal Appeal on the grounds that the primary judge had erred in giving significance to the standard non-parole period when determining the sentence. The Court of Criminal Appeal conceded this point, and enlivened its powers to re-sentence. During the hearing before the Court of Criminal Appeal, the parties gave evidence on ‘the usual basis’. This is a practice where new evidence on a sentence may be received to assess the offender’s progress towards rehabilitation. The Court of Criminal Appeal, upon consideration of this evidence, rejected the primary judge’s finding on the non-premediated nature o the offence, and found instead that the appellant had intended to kill TB. The Court of Criminal Appeal did not let the appellant know that it was minded to not accept the primary judge's findings.  Therefore the Court dismissed the appeal on the basis that no lesser sentence should be given.

Thereafter the appellant appealed to the High Court by special leave on the basis that there had been a breach of procedural fairness.

Judgement of the High Court

Justices Bell, Keane, Nettle, Gordon and Edelman found that the Court of Criminal Appeal had denied the appellant procedural fairness. This failure was constituted by the Court’s failure to let the appellant know that it could depart from the primary judge’s findings and therefore failed to give the appellant an opportunity to address the matter via evidence or submissions. The High Court stated that due to the high importance of consideration of the public interest in criminal cases, the sentencing judge or the appellate court in the case of re-sentencing must not be constrained by any agreement between the parties as to the appropriate range of sentence, or by concessions made by the prosecution. However the High Court also stated the importance of putting the offender on notice if the judge or appellate court decides not to take into account any concessions, primary findings or agreements:

[39] ‘Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. It was an error to hold that the appellant had had ample opportunity to be heard on all aspects of his appeal.’

 The failure to put the appellant on notice about the possibility that the Court of Criminal appeal was minded to depart from the primary judge’s findings amounted to a miscarriage of justice. Justices Bell, Keane, Nettle, Gordon and Edelman stated:

[44] ‘The majority's decision to depart from the primary judge's unchallenged factual findings, and to take the new evidence into account in substituting a finding of aggravation – the intention kill (and in Wilson J's case the finding of premeditation and the rejection of the finding of unlikelihood of re-offending) – without notice to the appellant, was procedurally unfair and has occasioned a miscarriage of justice.’

The High Court allowed the appeal and the matter has been remitted to the Court of Criminal Appeal to re-sentence the appellant.

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DL v The Queen [2018] HCA 32, and judgement summary.

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