Betts v The Queen

[2016] HCATrans 82

[2016] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S281 of 2015

B e t w e e n -

JOEL BETTS

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 APRIL 2016, AT 9.59 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please your Honours, I appear for the appellant with my learned friend, MR P.D. LANGE.  (instructed by Murphy’s Lawyers)

MR L.A. BABB, SC:   I appear with my learned friend MS N.L. WILLIAMS.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, there is an outline, hopefully ‑ ‑ ‑

FRENCH CJ:    Admirably succinct.

MR ODGERS:   Beginning then, if I might, with what happened in the Court of Criminal Appeal, the written submissions of the appellant in the Court of Criminal Appeal are found particularly at page 292 of the appeal book and on that page, without me taking you through it chapter and verse, it is apparent that the appellant in the Court of Criminal Appeal relied on particularly the new evidence of the report of Dr Nielssen, dated 3 May 2014, on the limited basis of its use only in the event that the court proceeded to resentence, having found error, and applying Kentwell effectively exercising the sentencing discretion afresh.

It is apparent from paragraphs 19, 20 and 21, and the extract from Dr Nielssen’s report at the bottom of page 292, just before paragraph 22, that two matters were sought to be advanced on resentencing:  one, that, contrary to the finding of the sentencing judge, there was a causal linkage between the history of abuse and the offending – bearing in mind, of course, that Dr Westmore in his report had not asserted any such causal connection – and secondly, reliance on the opinion of Dr Nielssen that there was a connection between the drug intoxication, of which there was some evidence before the sentencing judge, and the offending in circumstances where of course, again, Dr Westmore had been unable to assert any such causal connection.

We say that it is apparent from those written submissions, which we say are confirmed in what is said orally in the Court of Criminal Appeal – I will take you to that very briefly – that there was essentially an attempt being made to challenge factual findings in respect of the causes of the offending on the basis of new evidence, which we accept was not fresh, to use the general language, and that the court was being invited to receive that evidence on a resentence.

FRENCH CJ:   The Court at paragraph 47 of the judgment at page 388 – this is what you have picked up in paragraph 2 of your outline - used the word “inadmissible” but in the context it is really, is it not, an adverse exercise of the discretion from your point of view to receive the evidence on the basis that it was not appropriate to receive it having regard to the way the case was conducted below.

MR ODGERS:   Perhaps I – I am not sure I necessarily got that, your Honour.  The way I would see it was that it raised a question, not of admissibility, but of use.  I mean, this is a common distinction in evidence law ‑ ‑ ‑

FRENCH CJ:   Indeed, well that is what I am saying.  The term “inadmissible” seems inappropriate having regard to the context in which it appears and that one should not read that necessarily as a finding of inadmissibility but rather an adverse exercise of a discretion.

MR ODGERS:   Quite, yes, we have not taken issue with that.  We accept that the actual ruling was not inadmissibility but rather a prohibition on a certain use of the evidence and a use of it to challenge factual findings and made in respect of the causes of the offending.

FRENCH CJ:   You are saying, in effect, are you, that the Court of Criminal Appeal’s discretion miscarried?

MR ODGERS:   We are.  I will come to that.  I just wanted to get – I think there has been – our friends, the respondent, do place some weight, I think, on how the matter was conducted in the Court of Criminal Appeal and I just need to get that clarified.  I will not deal with everything they say in my submissions.  Just very briefly if I can take you to the oral submissions advanced on behalf of the appellant in the Court of Criminal Appeal, if I can take you to 321.

Right at the beginning, Mr James, who appeared on behalf of the appellant with Mr Lange said that - he referred to our written submissions at paragraphs 19 and subsequently and he essentially reaffirmed the points that I have made to your Honours that it was being relied on resentencing and that explicitly that it was being sought to:

re‑sentence on a basis that differed from the findings his Honour made concerning the mental health of the applicant in the light of his Honour’s analysis of the reports of Dr Westmore but for that we have to seek to rely on the reports of Dr Nielssen –

So reaffirming what was put in the written submissions.  Now, the Crown then at line 50 said there was no objection:

on the usual basis. 

We do not seek to take anything from the way the Crown conducted itself in the Court of Criminal Appeal.  We are not relying on any kind of suggested concession or not by the Crown in the Court of Criminal Appeal.  The issue that is before this Court is where appellate counsel relies on the evidence for a use on resentencing to challenge factual findings that had been made by the original sentencing judge, what are the applicable principles and we say that they Court of Criminal Appeal erred in refusing to permit the evidence to be used for that purpose.

BELL J:   Do you say that the reception of material on a sentence appeal on what was described as “the usual basis” embraced that on resentencing the court might have regard to material going to the factual circumstances of the offence, as opposed to material showing the progress of the appellant in the period post sentence?

MR ODGERS:   No, your Honour, I am not relying in any way on those words “on the usual basis”.  I do not know what the Crown’s position was.  I am not suggesting that they are making some kind of concession.  I am not suggesting that they are agreeing that it can be used for the first purpose.

BELL J:   I am taking up with you, Mr Odgers, the Crown Prosecutor, in using the expression “the usual basis” was using an expression – familiar, one might think, to anyone appearing in that court – particularly to Mr James.  So it is a question of what one might take from what “the usual basis” meant.

MR ODGERS:   I have to say, your Honour, that as I understand it our friends contend that the Crown understood that the evidence was only being used to establish events post sentence, which of course as Kentwell recognises, is legitimate.  How that could have been the Crown Prosecutor’s understanding in the light of the written submissions that I have taken you to and what Mr James said immediately preceding it, I do not know.  But, as I say, I am not seeking to take any advantage of any concession made by the Crown.

BELL J:   It might be controversial to call it a concession.

MR ODGERS:   Well, what I meant by “concession”, your Honour, is absence of objection.  She was asked “Are you objecting?”, “No, your Honour, I am not objecting” on a particular basis.  That is what I mean by “concession”.  Lastly, in respect of what the appellant contended in the Court of Criminal Appeal, at the very end of his submissions in the reply at page 339, line 10, Mr James returned to the drugs and Dr Nielssen’s report, again:

all of that is dealt with in paras 19 and 20 onwards –

So again, reliance on the written submissions –

We can’t add to that except to say that what his Honour was referring to in respect of those matters was as it were an absence from Dr Westmore –

The point that Mr James is making is one reaffirming reliance on the new evidence in the event of resentence to challenge factual findings effectively – or to canvass, if I might use that language, not challenge, but canvass factual matters which were the subject of findings by the original sentencing judge, and also making the point – although we do not say that it was necessary – that it was not really a situation where there was a direct contradiction of what Dr Westmore said.  It was rather a situation where Dr Westmore said “I cannot say that there was a causal connection between the drug use and the offending.  Dr Nielssen now expresses the view that he thinks you can assert that”, and that is the point that Mr James was making.

We do not place a great deal of reliance on that.  We say, and your Honour the Chief Justice went to this point earlier, that there is a discretion.  It is a discretion to allow evidence in the interests of justice.  We are saying the discretion miscarried, and that on the proper exercise of that discretion, the court should have received the evidence for the use that had been canvassed or raised by the appellant in the way that I have described.

FRENCH CJ:   The evidence was not in any way, of course, material to the basis upon which the Court of Criminal Appeal found error.

MR ODGERS:   Correct.

FRENCH CJ:   Error was found on the basis of vulnerability as an aggravating circumstance, and the effect of the offender’s own injuries.

MR ODGERS:   Correct.

FRENCH CJ:   So it then became a matter of, having regard to that wrong characterisation, what sentence should be passed?  The question is, allowing for the legitimacy of receiving evidence of post‑sentencing events – the Kentwell situation – the question is whether an appeal which succeeds in demonstrating error on the kind of bases that I have indicated, as it were, opens up the sentencing discretion by reference to any other evidence that might have been able to be presented below.

MR ODGERS:   I think that is a fair ‑ ‑ ‑

FRENCH CJ:   It is a bit of an ask, is it not, to say that discretion miscarries when the evidence is rejected on that basis?

MR ODGERS:   I guess that is the ask - I am going to try to have to persuade your Honours and I will bear that burden.  As your Honour the Chief Justice took me to the relevant part of the decision, the Court of Criminal Appeal is at page 388.

BELL J:   Just before you leave the way the matter was argued in the Court of Criminal Appeal, if you go to page 337 of the appeal book, the Crown Prosecutor who – at the commencement of the proceedings if one goes back, the Crown Prosecutor had indicated that these reports had only been served on her the afternoon before and she had not had an opportunity to properly consider them. 

At 337 you see the presiding judge offers the Crown the opportunity to put in written submissions addressing the reports and the Crown Prosecutor responds to that by explaining that there were really two ways the matter on causation was argued at sentence, either that she said that one theory was put forward that because the stepfather had been tyrannical that had caused some ongoing psychological damage.  She said, alternatively, the sentencing judge had grappled with the suggestion that the offence was born out of a jealous rage. 

At that point, Justice Hidden indicated his understanding that counsel for the appellant did not take issue with the causal finding but rather this was background material in understanding the appellant’s behaviour.  After that was said, one sees at 338, the Crown says effectively she did not require an opportunity to put in further submissions. 

I think that may explain why the, as I understand it, respondent in this Court says there is a somewhat ambivalent approach being taken by senior counsel then appearing for the appellant before the Court of Criminal Appeal.  It was by no means made clear that what the court was being asked to do was if it came to resentence, to resentence on the basis for which you contend.

MR ODGERS:   I respectfully contend otherwise, your Honour.  Mr James dealt with that at 339.  Your Honours will see at line 5, he says:

We’re accepting [jealousy] but our submission is that [jealousy] wasn’t the whole picture.

So, I think that what is being said there is, look, it may well be that there is an element of jealousy as a factor in the commission of the offending but it is not the whole picture.  The whole picture is you need to look at the history of childhood abuse, you need to look at the context of drug intoxication, those are matters which give you the whole picture and which would lead, Mr James is contending, to a different view than that formed by the judge. 

I mean the sentencing judge; I think he was the one who came up with the jealous rage theory as the explanation.  Certainly, it was never conceded in the sentencing proceedings below.  Indeed, as is conceded, the defence case was, well, try to show a link between the childhood abuse and the offending and say that it is not right to just see it as a jealous rage exploding because she is leaving him.  It is a much more complicated story. 

So my submission is that there is no ambiguity in the way that Mr James dealt with it.  He is accepting that jealousy is a factor but it is not the whole picture.  He is relying in resentencing on new evidence going to the causal connection between the abuse and the drugs.  Perhaps it is apposite at this point to also refer to another part of the oral submission, which I know my friend relies on, in the same way that your Honour has raised it with me.  I will deal with it now.  It is at the bottom of page 326, where Mr James says:

it was never our case that the crimes were driven from some deep well of a psychologically generated motivation springing from what had occurred to him in his adolescence.

My friends rely on that and say that is a concession, that there was not this connection between the childhood abuse and the offending.  Then you go on and he says:

That however is not to disparage the existing state of depression –

That was an opinion of Dr Westmore.  He did not explain how the depression had been formed and it is possible that Dr Westmore thought that childhood abuse had something to do with the development of depression, but he never said that.  Mr James goes on:

and the childhood abuse which made him the personality that he was, that he was putting in evidence –

and he goes on.  Then 327, line 15:

The material was not simply there for the purpose of trying to prove a particular motivation or a particular consequential effect after so many years of child abuse –

So one purpose of the child abuse evidence was to show a consequential relationship between that abuse and the offending, whether it was because it affected his personality in a way which then led him to be more susceptible to engage in this conduct - how it causally affects the offending probably matters less than the fact that it does have a causal connection.  Mr James was not suggesting or conceding that there was no argument – sorry, I will withdraw that and put it in the positive.  Mr James was saying it has been and continues to be the argument that there was a causal connection between the abuse and the offending.

BELL J:   At that point in his submissions, was he not addressing the grounds of appeal that were pleaded and contending, in essence, that the sentencing judge, having formed a view of the objective gravity of the offence, had allowed that to swamp the instinctive synthesis.

MR ODGERS:    That was going to be my second point, your Honour, that the reliance on this fell from Mr James in this context, which was in the context of trying to establish the grounds of appeal, does not really bear on the use that was being made of the evidence in the event of resentencing.  Yes, I certainly say that as well, your Honour.

FRENCH CJ:   That is reflected further down the page, is it not, at about line 43?

MR ODGERS:   Yes.  He was explaining how it related to the grounds and of course he is relying on what happened in the sentence proceedings.  He is referring only to the evidence of Westmore.  He is referring only to the way that the case was put below.  It is important.  I have made the point, but I will repeat it. 

In the proceedings below it is apparent that trial counsel for the appellant here was contending that there was a causal link between the abuse and the offending, even though she failed to persuade the judge of that, and she did not really have much to back it up with because Dr Westmore did not positively support that. 

As for the drugs she had a situation where Dr Westmore said “I don’t express the opinion that there is a causal link” so she is stuck with that.  It is not a case where she is positively saying, well, we assert there was no causal link between the drugs.  It is just that she could not advance that because the evidence did not support it. 

FRENCH CJ:   He said “altered perceptions, perhaps” but he could not say that there was a psychotic episode?

MR ODGERS:   Correct, no psychosis.  I should also point out here that the appellant himself, when he was testifying – it has been suggested that he conceded that there was no link between the abuse and the offending.  That is, again, with respect, not correct.  I will find the reference.  At page 53, your Honours will see at line 44 in cross‑examination:

It’s difficult to, it’s difficult to discount the trauma that I endured for the first 20 odd years of my life . . . I’m trying to understand this more and more everyday so I don’t believe it’s the case simply that this was a matter of a wounded ego.

So what he is saying is, “I don’t think it’s a case of a wounded ego; I think there is a connection.”  But he is not a psychiatrist; he is not an expert.  But certainly he himself is suggesting that.  So there is no inconsistency, we say, between the way the matter was handled below and the way it was sought to be advanced in the Court of Criminal Appeal.

BELL J:   Save for this, that the expert evidence did not support a causal connection.  That was Dr Westmore’s opinion.

MR ODGERS:   Are you talking about the drugs, your Honour?  I am sorry.  Are you talking about the childhood abuse or the drugs?

BELL J:   I am talking about both.

MR ODGERS:   I am sorry; yes, of course.

BELL J:   I am talking about both.  Dr Westmore, on the basis of the history provided and the other material including, I think, the facts, was not satisfied that there was a causal connection.  Dr Nielssen, on the basis of taking a history from the appellant and essentially the same material, came to a different conclusion.

MR ODGERS:   I do take issue with that, your Honour, to this extent.  Dr Westmore did not actually address the question of whether there was a causal connection between the history of abuse and the offending.  He never said anything about it one way or the other.

BELL J:   He took the history of ‑ ‑ ‑

MR ODGERS:   Correct.  If I can just take you to his report, at appeal book 245, at line 30, he recounts in rather short language the history of the abuse.  Then his diagnosis is found at 246, line 50.  He says:

The differential diagnosis would include episodes of an adjustment disorder or perhaps a recurring major depressive disorder.

GORDON J:   He says:

At the time I examined him while restricted in mood, he was not suffering from a depressive disorder.

MR ODGERS:   That is right, that is right, but importantly, your Honour, at 248, line 12, line 10:

I do not believe he has a psychiatric defence to the matters now before the court but it is likely he was depressed at the time of the offending behaviour -

So he is expressing an opinion of clinical depression ‑ ‑ ‑

BELL J:   Yes.

MR ODGERS:   ‑ ‑ ‑ at the time of the offending.  If Dr Westmore had been asked, do you think that it is possible that the history of abuse had some role to play in the development of the depression, we do not what he would have said about that.  He says nothing about ‑ ‑ ‑

BELL J:   Well, what he says at 247, line 32 is that, speaking of the mother’s relationship was that it:

was characterised by extreme domestic violence of a psychological and physical type.

He has set out that history earlier in his report.  These were matters that were obviously evident to Dr Westmore and he had taken, it would seem, much the same history that Dr Nielssen took.

MR ODGERS:   Yes, I am just taking issue with the proposition that he was asserting that there was no causal connection between the history and the offending ‑ ‑ ‑

BELL J:   Well, all right, I understand.

MR ODGERS:   I am saying it is left up in the air.  That then takes me to - I think I was taking your Honours to the Court of Criminal Appeal but in essence that is at 388 and I have already dealt with that in the context of questions from the Chief Justice and I have conceded that it was a ruling that the evidence could not be used to canvass the factors causing or contributing to the offence and the reason that was given was:

an appeal does not provide an opportunity for a second bite of those issues.

We say his Honour had a discretion and the court had a discretion and it miscarried and I will have to try to explain ‑ ‑ ‑

FRENCH CJ:   So do you say that imports some sort of unduly constraining principle, some undue constraint on the discretion?

MR ODGERS:   Yes, yes.  So what is the discretion, where is the discretion to be found?  We accept that it is to be found in section 12 of the Criminal Appeal Act- subsection (1):

The court may, if it thinks it necessary or expedient in the interests of justice -

and then a list of specific powers are listed.  We do not belie any of those.  It is what follows after the specifics:

and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters –

I do not need to read the rest of the next line and then the proviso:

Provided that in no case shall any sentence be increased by reason of, or in consideration of any evidence that was not given at the trial.

Now, obviously I will be focusing my attention on the introductory words:

necessary or expedient in the interests of justice –

We say that one of the powers that may be exercised by the Supreme Court on appeals or applications in civil matters is to receive evidence.  That is a power that those courts have.  We say section 12 confers the power to receive evidence, and the proviso makes it abundantly clear that the power may extend to the receipt of evidence that was not given at the trial, and it may be used not to increase the sentence, but to decrease the sentence.  That is clearly implicit.

GAGELER J:   Why do you not rely on section 12(1)(c)?

MR ODGERS:   Because it only applies to a witness who is competent, but not compellable.  Section 12(1)(c) has to be read in the context of 12(1)(b); make an order that somebody who would have been compellable be ordered to attend.  Subsection (c) is dealing with the situation where a person is not compellable.

GAGELER J:   I see.

BELL J:   I think section 12 has formed part of the Act from its enactment?

MR ODGERS:   I cannot assist you on that, your Honour.  I think that is correct.

BELL J:   I think in the 1907 English Act, on which this Act was based, there was a similar provision.

MR ODGERS:   Thank you, your Honour.  Returning to the introductory words, we emphasise the words “necessary or expedient”, and in our reply, I think, we drew attention in paragraph 23 to statements in different contexts that “expedient” can mean advantageous or desirable or suitable.  It is a broad term conferring a broad discretion.

KIEFEL J:   But the context here for the interests of justice are that the discretion has been exercised by an appellate court where a sentencing process has already taken place.

MR ODGERS:   Yes, that is correct.

KIEFEL J:   The discretion is one exercised in an appellate function.

MR ODGERS:   Yes, if one encompasses within the appellate function the appellate function of re‑exercising the sentencing discretion.

KIEFEL J:   Yes.

MR ODGERS:   I think it will be apparent from our written submissions that we say that one has to draw a distinction between, on the one hand, the function of finding error and, on the other hand, the function of re‑exercising the sentencing discretion.

KIEFEL J:   Quite, but one cannot put out of the picture the fact that the resentencing is to be exercised in the context of findings already made below – I am sorry, I should not say the findings – on the basis of the evidence tendered below.

MR ODGERS:   We say that assumes something which we do not concede, your Honour.

KIEFEL J:   Well, there has already been a process undertaken where the parties have put material before it.

MR ODGERS:   Yes, that is ‑ ‑ ‑

KIEFEL J:   So at least at the first step, the position is that the appellate court would proceed by reference to that evidence.  The question is ‑ ‑ ‑

MR ODGERS:   Can the court, in the interests of justice ‑ ‑ ‑

KIEFEL J:   ‑ ‑ ‑ why and whether and how further evidence should be received.

MR ODGERS:   That is the question.

KIEFEL J:   But you are saying in that context that the interests of justice do not take account of the fact that such evidence as was considered to be necessary was tendered by the parties in the proceedings below?

MR ODGERS:   The way we put it in the written submissions and the way I put it here is that the importance that the courts give to the adversarial nature of proceedings and the decisions that are made at first instance in determining how – whether or not new evidence should be received on appeal but that is clearly an important factor which applies to appeals against conviction and has been held to apply to appeals against sentence, that that factor has little or no bearing on the situation where the court is re‑exercising the sentencing discretion. 

I am getting ahead of myself.  We do not say that it may not be a relevant factor but the interests of justice play out differently, we say, when the court is considering how it should proceed as to whether or not – to receive evidence in the interests of justice when it is considering exercising the sentencing discretion afresh than it would where it is being asked to find error.

KIEFEL J:   Well, I think it would generally be accepted that the interests of justice at an appellate level would require the reception of evidence where something has changed, where there has been a change in circumstance between sentence and ‑ ‑ ‑

MR ODGERS:   Absolutely, I mean Douar and Kentwell explicitly acknowledge that that ‑ ‑ ‑

KIEFEL J:   Or where there was evidence that could not reasonably have been put before the sentencing judge.  They are two categories which are well recognised.  You are actually creating a third category.  I am just not quite sure how you would describe it. 

MR ODGERS:   I am reluctant to use the language of category.  What I am putting to this Court is ‑ ‑ ‑

KIEFEL J:   How would you describe the character of the kind of evidence that – it does not fit in either of those categories.

MR ODGERS:   No, it does not.  We are saying that in a proper application of the discretion conferred by section 12(1) that the interests of justice may permit a court to receive evidence that is not evidence relating to events that have occurred since sentencing – Kentwell - that is not fresh but nonetheless should be received because that is what justice requires. 

KIEFEL J:   But there is still the “why” that you have not supplied.

MR ODGERS:   I think I am getting ahead of myself.  That is really the nub of the argument and I will come to that.

BELL J:   In point of principle, if the appellant had sought to challenge the factual basis upon which Judge Toner sentenced him by adducing evidence from Dr Nielssen in the form of the report, he would have needed, in order to establish error, to satisfy the ordinary rules that apply to the reception of fresh evidence on an appeal, would he not?

MR ODGERS:   Strictly no, your Honour.  Certainly in New South Wales, the Court of Criminal Appeal takes a fairly flexible view of sentence appeals and does not insist that the evidence is fresh.  Can I make the point, even on appeals against conviction there is no mandatory obligation – requirement that it be fresh.

BELL J:   Accepting that, Mr Odgers, you know to what I refer.  So, the Court would have applied the principles in Goodwin and ‑ ‑ ‑

MR ODGERS:   Yes.

BELL J:   But your submission as I understand it is, where one does not challenge factual findings made by the sentencing judge but succeeds on a discrete ground of error affecting the exercise of the judge’s discretion, then the entire field is opened up completely afresh as though those unchallenged findings had not been made.  It is just a question of why in the interests of justice that should follow.

MR ODGERS:   Yes.  Is that the question you are asking me, your Honour?

BELL J:   Yes.

MR ODGERS:   I prefer to respond by answering it in this way, to say that the way that the interests of justice play out will be different in that context than it is in the context of whether establishing error, that the interests of justice, when you are seeking to show error, will be informed by considerations of finality and the adversarial nature of the proceedings below, choices made below and conceptions of fairness below.

Those will all feed into the interests of justice and therefore make the consideration of whether or not the evidence is fresh a significant, not determinative, but nonetheless an important factor which will bear on whether or not it is in the interests of justice that the evidence be received.  What we are saying, though, is that when you have moved to a different context of exercising the sentencing discretion afresh, those factors of finality and recognising the adversarial nature of the proceedings below and the choices that are made below and the evidence that is sought to be adduced below, the choices, et cetera, that those factors have little or no bearing on how the interests of justice play out.

GORDON J:   Why is that?  Why would they not have little or any influence in this process ‑ finality, for example, making a decision about the way in which you conducted your case below?  Why would they not have had any or little influence at this stage?

MR ODGERS:   The argument that is advanced is that the appellate court is determining for itself, unless it remits, what is the appropriate sentence on all the evidence, all the relevant evidence, in the light of all the applicable principles, unconstrained by what was decided below, and that it is engaging in a process where finality is out the door, we would say, or largely, that the significance of it is much reduced and that choices that were made below do not have the significance when you are coming to effectively resentence.  That is what the Court is doing; it is resentencing.

GORDON J:   But it is not in a vacuum.

MR ODGERS:   What it is going to be decided in the context of will be by the application of section 12(1), which is what the interests ‑ ‑ ‑

GORDON J:   I think what we are trying to get to, Mr Odgers, is we are trying to put some meat on the bones of this submission, trying to work out what are the indicia, if any, that the court would be sitting there, as an appellate court, exercising this discretion and resentencing.  At the moment, we have thrown finality out the door, we have thrown out the way in which we conducted the case below and we are left with this lovely phrase “interests of justice” with nothing much on it.

MR ODGERS:   We have dealt with it in the written submissions at 6.7, your Honour. 

FRENCH CJ:   Paragraph 47 is really the critical paragraph, is it not, in the Court of Criminal Appeal decision?

MR ODGERS:   Yes.

FRENCH CJ:   What was the Court really saying there?  It says:

an appeal does not provide an opportunity for a second bite of those issues -

that is to say, things which ought to have been dealt with at sentencing.  In other words, it is not open slather when you get up here if you prove error in terms of what you can reagitate by reference to the factual issues.

MR ODGERS:   It can also be seen as just an assertion of the fresh evidence principle that because it is not fresh, because it was reasonably available with the exercise of the due diligence below and you chose, for whatever reason, not to ‑ ‑ ‑

FRENCH CJ:   It seems a bit broader than – I mean fresh evidence is a very restrictive constraint, is it not?

MR ODGERS:   Yes.

FRENCH CJ:   Obviously, when you are looking at section 12 you are not in fresh evidence territory.  I think you are in a spectrum of possibilities, one of which would include fresh evidence and post‑sentencing things and then one would not necessarily exclude other kinds of evidence which does not fall into those categories because of the breadth of the terminology used in section 12.  But if the Court of Criminal Appeal is really saying “not much more than”, it is not open slather when you get up here once you have proven error in terms of evidence we can receive on a resentencing.  The question is, is that really an impermissible constraint on the discretion under section 12?

MR ODGERS:   We do not read it as just simply saying it is not open slather.

FRENCH CJ:   Well, that is why I want to see how you characterise it.

MR ODGERS:   We read it as being a much more restrictive approach.  We read it as essentially saying you chose to run your sentencing proceedings in a particular way, relying on Westmore.  You did not rely on Nielssen.  You did not put in – you did not produce a report by Nielssen.  It is too late to try to rely on him now.  That is how we read it.

FRENCH CJ:   It is contextualised, is it not, by reference to the particular issues and the particular material that was put below?

MR ODGERS:   I think I have to concede that, your Honour, but in essence we understand that what is being said there is you are not permitted to use it to canvass the factors causing or contributing to the offence because in your first bite in the sentencing proceedings you did not rely on this evidence – you relied on something else, which did not advance ‑ ‑ ‑

FRENCH CJ:   This was the kind of material you should have been putting below on these issues?

MR ODGERS:   Yes.  That is how I would understand it.  We say that is an unduly narrow approach.

KIEFEL J:   But is there an answer to it?  There is no answer in fact to it.  You are just saying that the court should ‑ ‑ ‑

MR ODGERS:   We are saying the interests of justice in this case where, when one thinks about it – if we just get it down to its bare bones you have one psychiatrist who – and defence lawyers and legal aid matters are generally stuck with what a psychiatrist who provides a report says – one psychiatrist who says, “I’m unable to show that there’s a connection between the drugs and the offending” and does not say anything about - says, “Yes, there’s a history of abuse” but does not say anything about any causal connection to the offending.

The way it was run below was well, we cannot say that the drugs played a role because we have no expert evidence to support it.  We do say that notwithstanding the absence of anything in Dr Westmore’s report that your Honour would find that there was a connection between the abuse and the offending.  The judge rejects that.  The judge says no, no causal connection between the history of abuse and the offending.  So what is happening?  In the appeal there is a new report.  There is a report from somebody else, who is a reputable psychiatrist, who comes to a different view.  The appellant says, look, I cannot say that there was an error on the basis of this new material below because it should have been put before the sentencing judge and it was not. 

So we are not asserting a ground of error but if the court does proceed to resentence and is exercising the sentencing discretion afresh we say that injustice to the appellant where he was asserting that he believed there was a connection between his abuse and the offending and where there was, at least, a question raised about the connection between the drugs and the offending, that where you now have a reputable expert who says, yes, in fact, there are connections for both of them and I can explain why and he gives what on the face of it appears to be a plausible opinion going to a critical factual question - this was a case where the offender, a person of otherwise impeccable character, out of the blue does an extraordinary thing. 

At the end of the day the judge was left in a position where he could not think of any explanation other than jealous rage but there was not, we would say, much evidence to support it but there was no challenge to that.  We cannot say that was an erroneous decision below but he did not have the benefit of the new material.  The new material and we have spelt it out at some detail in written submissions provides, we would say, a plausible basis, in fact, a probable basis, for saying well it is much more complicated than that. 

It is not just a man who decides out of the blue to kill his girlfriend because she is leaving him.  It is actually much more complicated than that and we have expert evidence to support that and we want the opportunity to now put that material before a court in the exercise – which is re‑exercising the sentencing discretion.  We say that is in the interests of justice.  In my submission, it was in the interests of justice in those circumstances given that whole matrix of circumstances.

BELL J:   I think it is possible to point to cases where in exceptional circumstances the Court of Criminal Appeal has had regard to evidence bearing on matters pre‑sentence in the exercise of its discretion but that as a general rule it has not adopted that approach.  Success for you requires you to establish that whenever the court embarks upon resentencing, error having been identified, it is open to review all the factual findings upon which the discretion is to be exercised.  That must follow surely or do you point to something exceptional about this case?

MR ODGERS:   I am going to repeat myself, and I apologise, by just saying that the interests of justice play out differently in that stage than they had in the context of establishing error.

BELL J:   I understand that.  The matter I am raising with you is for success it must follow that the interests of justice are said to play out in any case in which the court embarks on resentencing in a way that admits of the court finding the facts afresh.

MR ODGERS:   It may, because we say if the evidence is inadmissible, obviously the court would not receive it.  If the evidence is inconsistent with the agreed facts below and there is no withdrawal of the concession about the agreement, again, the court would not receive the evidence.  The court would not place the same importance on finality and choices made below – I know that is the best I can put it in terms of responding to Justice Gordon. 

They would not be given the same significance in this context as they are in establishing error.  They may play a role, but it may be that in the exercise of that broad discretion of what the interests of justice are that a conclusion might be reached that, even though the opportunity, the first light – the opportunity was not taken in this case to call Dr Nielssen, that in the interests of justice, given the significance of the issues, given the way the evidence fell below, given the practical realities of how an illegally‑aided offender is stuck with essentially ‑ ‑ ‑

KIEFEL J:   Forgive me for interrupting – there is one feature in your submissions that you made earlier which might distinguish this case from the larger body of cases to which Justice Bell has referred, and that is that your client sought to rely upon his background, but he was at that point absent positive evidence to support what he sought to rely upon.

MR ODGERS:   Of course.  I do rely on that argument, yes, your Honour.

KIEFEL J:   I understood you to say that that was a key feature.  That is really about the only thing you can point to.

MR ODGERS:   Obviously, I am trying ‑ ‑ ‑

KIEFEL J:   To distinguish this case from all other cases which would rely upon further evidence being available and ‑ ‑ ‑

MR ODGERS:   Well, perhaps the point Mr James made is worth also making, which is that this is a situation where Dr Westmore was not positively saying there was no connection between the drugs and the offending.  It was a case where he was saying “I am unable to say that there was psychosis ‑ ‑ ‑

GORDON J:   Having looked.

MR ODGERS:   I understand that, yes, your Honour.  Of course, it seems that Dr Nielssen has written articles in this field, and relies to some extent on the circumstances of the offending.  It is clear from his report that he draws significance from the fact that there were multiple self‑inflicted wounds, apparently where no pain was felt.  He says that is a factor which points to a conclusion of psychosis – but yes, your Honour is quite correct; Dr Westmore had the same material presumably, and was unable to reach that opinion.  You have a different psychiatrist who has different expertise, perhaps, and different views, like many experts, and comes to the view “I think I can draw that link”.

The attempt is being made to say to the Court of Criminal Appeal we know it is not fresh, we know we cannot establish error, but you are proceeding to re‑exercise the sentencing discretion, and the interests of justice require you, we say - justify it is expedient to receive this material.  Of course, we say – this is not something that was put below – the court has the option of remitting, and I will come to that briefly in a moment.

GORDON J:   That would tend against your construction, would it not, that power to remit in the sense that the Court of Criminal Appeal is, as I understand your argument, a forum where only evidence if it was not contested would be accepted but if it was contested it would have to be remitted.  Is that the position?  So the way I understand your argument is, if it is in the interests of justice to receive this new material - we might leave aside just what that material is at the moment - if there are contested issues of fact then you would not have the Court of Criminal Appeal sit there and determine it, would you?

MR ODGERS:   I think that was the point that the Chief Justice of South Australia in Kreutzer made the point that it would often be desirable to remit it to the original sentencing court, partly because it is one judge rather than three, partly because it would allow the possibility of appeal against those factual findings, specifically something that the Chief Justice adverted to as a good reason to remit.

We would say there would be circumstances in which it may that the court takes the view that the evidence, the new material is so significant that it can accept it or there is no challenge to it or whatever the situation is - it may be it is not necessary to remit but yes, it will often be convenient where something like this happens to remit, but we say that does not work against the interpretation for which we contend.  We say that if it is expedient in the interests of justice to receive the material, then it may well be expedient to remit those factual questions to a single judge.

GORDON J:   Can I just ask one question so that I can complete my understanding of this?  What happens if this additional fresh material, as occurred here in some respects arguably, is not favourable to the defendant?

MR ODGERS:   Well, that will all play out and if it is remitted ‑ ‑ ‑

GORDON J:   No, not if it is remitted.  We are sitting on the Court of Criminal Appeal.  So here, Mr Roberts, some of the aspects of his report were arguably not favourable to your client. 

MR ODGERS:   Well, it might be ‑ ‑ ‑

GORDON J:   What does the Court of Criminal Appeal do with that material?

MR ODGERS:   Well, the court could say that ‑ ‑ ‑

GORDON J:   No, on your submission at the moment.

MR ODGERS:   Yes, your Honour, I am addressing it.  The court could say we are satisfied that no lesser sentence would be warranted even in the light of this new material.

GORDON J:   Well, that is a conclusion.  So is your proposition that they would take that material into account?

MR ODGERS:   Yes.

GORDON J:   Even if they were inconsistent with findings made by the sentencing judge.

MR ODGERS:   Yes, of course.

GORDON J:   Or the way in which the case was conducted below.

MR ODGERS:   Yes, yes.

GAGELER J:   Mr Odgers, I may not be following this very well but I understood you to say that your central complaint here is not about the receipt of evidence but about the use of evidence.

MR ODGERS:   Yes.

GAGELER J:   The evidence having been received, is not your real argument an argument that focuses not on section 12 which is in terms supplemental, could be called adjectival, but your argument is about section 6(3), that is the nature of the exercise on resentencing and is it not essential to the argument you put that the resentencing involves a redetermination or a determination de novo of the facts?

MR ODGERS:   Your Honour, I do not know whether the way I have advanced it is a section 12 issue or a section 6(3).  I am comfortable with either situation.  What we say in respect of section 12 is that it should be read as a provision which deals with both admissibility and use and we say that the principles relating to interests of justice apply not just to whether or not to receive it, but how you use it.

We say that it would seem that paragraph 47 - the decision that is being made there is even though there is no reference to section 12 that the view is being taken that it is not in the interests of justice to use it to canvass factual findings below for that use because it is the second bite of the cherry ‑ that is the reasoning – and we say that that is an erroneous exercise of the 12(1) discretion.  That is one way of looking at it. 

The way your Honour raises it with me is a different way of looking at it, which is to say that 12 is limited to questions of admissibility ‑ if it has been admitted it has been admitted – and then the question is, under section 6(3), how the court should proceed and yes, we do, as your Honour has said to me, make the submission that Kentwell establishes – and we rely on it – that this is sentencing afresh and we say that the appeal court has to determine the facts. 

We put in our written submissions at paragraph 6.8 that it will be very convenient in the vast majority of cases for the appeal court to proceed on the factual findings made by the judge below, particularly if there has been no challenge to them.  We say the appeal court is not obligated to do so but that it will be because the sentencing judge had the opportunity to see the evidence and to hear the witnesses give evidence, and so on, that it will be, in the vast majority of cases, sensible to proceed on the basis of the factual findings made at first instance.

KIEFEL J:   A difficulty with an approach which simply looks to resentencing on the basis of evidence which is received is that the question of admissibility is not one at large.  The evidence, if it was received, was received for particular purposes, was it not?  One has to determine - what I am saying is one does not proceed upon the assumption that the evidence is available for use at large.  The court needs to consider the purposes for which the particular evidence was tendered before one can take the further step.

MR ODGERS:   Yes.  That is why we focused on 12 and saw 12 as going to ‑ ‑ ‑

KIEFEL J:   Yes, I understand.  That is why you did not focus on section 6.

MR ODGERS:   But if a narrow view is taken of 12 and it is a strict view that it is just about a disability, it really becomes a section 6(3) question and we say that confers a very broad discretion but the court is resentencing and that there is no constraint in the terms of the provision on the evidence that - on how the appeal court proceeds to determine the facts for the purposes of the resentencing exercise.

GAGELER J:   If I can just ask one further question about section 12, it described itself as being concerned with supplemental powers.

MR ODGERS:   Yes.

GAGELER J:   You took us to the concluding words of subsection (1).  What are the particular powers which would be exercised by the Supreme Court in civil matters that we should be having regard to?

MR ODGERS:   Our submission is that it just needs to be understood very generally.  There is no doubt that the Supreme Court on appeal in civil matters can receive evidence that was not given at the trial.  There may be specific rules about how that is to occur and the principles that apply but we say that is not an aspect of the power.  The power is to receive evidence that was not given below and we say that is one of the things that is caught by that and, in any event, it is not limited to appeals; it also extends to applications, whatever that means. 

So it is designed to be very broad.  If a civil court can do something, then the Court of Criminal Appeal can do something and we say the civil court can receive evidence that was not given at the trial on an appeal or an application and, therefore, the Court of Criminal Appeal can exercise that power to receive evidence that was not given at the trial.

FRENCH CJ:   Section 12 is, of course, concerned not only with sentencing appeals, it is concerned with appeals against conviction and perhaps also the special sorts of cases covered by 6A.  So when one is looking at the discretion and the scope of the discretion under 12, one looks at it in the context of the particular function the court has to carry out.  When we talk about the discretion in relation to sentencing that has to be understood reading 12 in the light of the function conferred on the court by 6.  

MR ODGERS:   Yes, I accept that.

BELL J:   If one looks at history, before the enactment of the 1907 English Act, a concern was the only mechanism in the case of a miscarriage of justice as in, for example, the Beck Case, was a petition for clemency to the Home Office.  There had been in the late 19th century a proposal by Sir James Fitzjames Stephen that the Home Secretary should be given a power to take evidence in the case of a miscarriage of justice.  So, one can see the emergence of ‑ or when the Court of Criminal Appeal – when provision was made for an appeal against conviction and sentence the predecessor of section 12 had a history of that character.

MR ODGERS:   Thank you, your Honour.  I think I have responded to your Honour Justice Gageler as best I can.  I am now, I think, at paragraph 4 of my outline.  I have referred there to CDJ v VAJ.  That is a very long decision of this Court in respect of the Family Court Act.  I do not think it is necessary for me to take you to it other than it emphasises that, and we rely on this, when you are coming to a statutory test like section 12 common law principles about fresh evidence do not apply.  That was the holding in CDJ in respect of the Family Court Act. 

It is not necessary for me really to go there because in Veen (No 2) – and I will take you to that - (1988) 164 CLR 465 – it was said - firstly to page 490 in the judgment of Justice Wilson, in the second sentence his Honour said:

It is sufficient, in dismissing this ground of appeal, to say that the established principles governing the admission of fresh evidence do not apply so as to limit the materials to which an appellate court in its discretion may have regard when hearing and determining an appeal with respect to sentence.

That proposition was endorsed by Justice Gaudron at 499 in the last sentence of her Honour’s judgment.  As regards the plurality, it is a little ambiguous but at 473 in the sentence – the last sentence of the first paragraph, they say:

It is unnecessary to consider the procedure adopted by the Court of Criminal Appeal in admitting evidence as to the state of gaol psychiatric services but, subject to appropriate procedural safeguards, we would not regard that Court as being precluded from receiving further material relevant to the adoption of sentencing principles –

et cetera.  So it is less clear, but it has been understood, we say, to accept that strict rules relating to fresh evidence do not apply to a sentence appeal, as was said by Justices Wilson and Gaudron.

The only other thing I should say about CDJ – and I will not take you to it – is that at page 200, paragraph 104, a general point is made which is the one that I have been seeking to emphasise, which is the way the interests of justice play out has to be considered in respect of the subject matter that it is applying to. 

In that case, the subject matter was to show something relating to the best interests of the child.  The argument that we have advanced in the written submissions at paragraph 6.5 through to 6.7 is that they play out differently when you are seeking to show error than how they play out when you are engaged in the section 6(3) resentencing exercise.  As I say, we rely on the written submissions, which I probably cannot helpfully expand on because they are the best we can do to advance the argument.

Paragraph 6 is referring to this power to remit.  I am not sure that I need to say a great deal about it.  It is found in subsection (2) – your Honours have that.  Pantorno, Kreutzer, McLean and O’Neil‑Shaw are all examples of that power being exercised.  I think it needs to be said – I will not take you to any of those cases at this point – that in none of them is there any suggestion that the court to which the remittal is made is constrained in any way with respect to the evidence that can be received.  Indeed, in some of them, it is specifically accepted that evidence that was not produced in the initial sentencing proceedings will be received by the remitted court.

BELL J:   Well, in Kreutzer, the problem was the judge had not made factual findings.

MR ODGERS:   I understand that.

BELL J:   That was the purpose of the remitter, was it not?

MR ODGERS:   Yes, your Honour.  I understand that none of these cases go directly to the issue before the Court today.  They were all cases essentially in which there had been a process error, and it was anticipated that the remittal court will avoid that error and deal with the matter properly.  I am saying to your Honours that it has never been suggested that on remittal there is some rule or principle that would preclude the remittal court from receiving new evidence.  It does not seem to have actually been ventilated, the issue, but certainly never said that a party who comes to the remittal court and seeks to rely on new evidence that there is some kind of principle that would prevent the court from receiving it on the remittal.

We would say if that is right, then it must also be the case that the Court of Criminal Appeal would not be constrained if it did not remit, but decided it for itself.  Perhaps this is just an argument from absence of discussion, but there has never been any suggestion in any of the authorities dealing with cases where there has been remittal that there is a constraint on what you can rely on when the matter is remitted.

Can I just make this point.  It may assist in consideration.  Our friends rely on a case called Deng, which is a case where there was a Crown appeal against sentence.  Evidence was sought to be led by the respondent.  I will take your Honours to it - Deng (2007) 17 A Crim R 1. It is, on one view, closer to the facts of this case than other cases.

As I say, it was a Crown appeal.  The respondent to the Crown appeal sought to rely on new evidence going to the facts of the offending, if the court proceeded to resentence – if the court was persuaded that there had been an error, sentence was manifestly inadequate or something along those lines.  The court refused to admit the new evidence.  When one looks at the reasons given by Justice James, one important factor, which is not applicable in this case, is to be found at paragraph 21, on page 8, where it was emphasised:

that the new evidence would be in stark conflict with the statement of agreed facts, on the basis of which the sentencing judge had sentenced the respondent.

We have sought to demonstrate in our submissions that that is not this case.  But, more importantly ‑ ‑ ‑

GORDON J:   You take issue, do you, with paragraphs 6.76 to 6.79 of the defendant’s submissions dealing with the fact that they are unfavourable – dealing with questions of insight into the offence and the like?  Is that not an inconsistency?

MR ODGERS:   I am sorry, which submissions, your Honour?

GORDON J:   The Crown submissions.  I think it is dealt with at 6.76 through to 6.79 where they set out some aspects of which - the reports are unfavourable and are largely inconsistent dealing with, for example, the insight of your client into the offence, that is he took responsibility below but now seems to step back from it.

MR ODGERS:   Your Honour, my response to that is that, to a large extent, the matters that are raised at this point in the respondent’s submissions seem to perhaps go to the weight that might be given to Dr Nielssen’s report rather than whether or not it should be received at all.  That is the first point I would make.  Secondly, they are criticisms that were not advanced in the Court of Criminal Appeal and they are advanced for the first time now.  Thirdly, we say that they are of minor significance in the scheme of things. 

As I say, the critical issue before the sentencing judge was why did he do it?  Given Dr Westmore’s report, there was really no clear explanation.  That meant the judge came to the conclusion – well, the only explanation I can think of is that it was a jealous rage or whatever language his Honour used.  He relied on the lines from the song which, with respect, do not really advance that proposition at all.

The point I am making is that the – Dr Nielssen’s report and the other report that was sought to be relied on does establish a causal connection between the history of abuse and the offending; does establish, if accepted, a conclusion that he was suffering a psychosis of some kind at the time of the offending.  It would also support a conclusion that contrary to what the judge found that it was not a planned offence but it was one – more importantly, he found beyond reasonable doubt that in the absence of any other explanation it had been planned.  We say that the new material would raise a reasonable doubt or could raise a reasonable doubt on that important factual finding. 

So, my response to your Honour Justice Gordon is that any points that are sought to be made by the respondent at this stage of the argument are relatively minor in terms of the assessment of the interests of justice and relatively minor in terms of the outcome and that it is entirely possible, indeed, we would say probable that if the matter were remitted, if there was cross‑examination of Dr Nielssen and the other expert that a new sentencing judge would reach significantly different factual findings to those made below and favourable to the appellant so as to lead to a lesser sentence than, on the face of it, the very heavy sentence that he received. 

GORDON J:   I think I interrupted, Mr Odgers.  I think you were dealing with Deng. 

MR ODGERS:   I was, thank you, your Honour. 

GORDON J:   You got to paragraph 21 dealing with the proposition.

MR ODGERS:   Thank you, your Honour.  I was turning to the applicable principles and at paragraph 37 his Honour said:

Although the present appeal is a Crown appeal against sentence and counsel for the respondent informed the Court that the respondent would seek to rely on the new evidence, if it was admitted, only in a re‑sentencing of the respondent, I nevertheless consider that some guidance can be obtained from the principles which this Court has applied in determining whether to receive fresh or new evidence on an appeal against sentence by a convicted person.

The respondent here says, well, your Honours should adopt that approach in the context of a sentence appeal as distinct from a Crown appeal.  So, what does it mean to say that you obtained some guidance from those principles?  Well, Justice James then goes through the authorities which, if I could just summarise the position, and your Honour Justice Bell, I must apologise, referred to those authorities. 

As your Honour accepts it is a fairly flexible approach.  At the end of the day the approach seems to be well, if it shows that there is a miscarriage of justice then the new evidence will be received.  But, importantly, at paragraphs 44 and 45, Justice James noted that the approach that is taken on appeals against sentence is very much informed by the approach that is taken on appeals against conviction in that extract from Fordham:

Those representing an accused person before the trial court have a wide discretion to conduct the defence as they see fit and this Court should not generally interfere in the exercise of that discretion –

That refers to that idea of the adversarial nature of the proceedings.  It also goes back to the point that was made in the Court of Criminal Appeal in this case - you do not have a second bite of the cherry.  That is the same idea, and then it said:

I see no reason why that principle should not apply, at least to the same extent, to sentencing proceedings as it does to the actual trial.

Then Justice James says “I would extend that principle:

not only to appeals . . . against sentence, but to Crown appeals against sentence, including any re‑sentencing –

Now, can I make two points about that.  Firstly, as I pointed out in Veen it specifically said that the principles relating to fresh evidence, particularly in respect of conviction appeals, do not apply to appeals against sentence – that is the first point that needs to be emphasised.  But more importantly, the analogy is not a good one.  The analogy should be:  what happens if the appeal against conviction succeeds and a new trial is ordered?  The answer is simple.  We all know that there is no constraint on the way that an accused person conducts his or her second new trial.  There is no suggestion that at a new trial the accused is somehow stuck with the way it was run the first time around. 

That is the analogy that is the better one to the circumstances of a situation where you are resentencing.  It is not a situation where it is an appeal against conviction or where you need to show error, or an appeal against sentence where you need to show error; it is a fresh exercise of the sentencing discretion, which we say the better analogy is to a second trial which has been ordered after a conviction appeal has been successful.  No one has ever suggested that there is any significant constraint on the way you conduct that fresh trial. 

So we say that the analogy is a bad one.  I do accept, as has been put to me, that this is all in the context of an appeal against sentence and that it is about the powers of the Court of Criminal Appeal, and it is not to be disregarded that it is an appellate context.  I think several members of the court have made that point to me.  That is why we accept that considerations of finality do have a role to play but the weight to be given to that, we say, must be significantly reduced in a context where the appeal court is exercising the sentencing discretion afresh.

FRENCH CJ:   Underlying that, there is a subtext about equating what the sentencing judge does on remittal with the position of the Court of Criminal Appeal on resentencing.  The premise for that is that it is correct to say that the court, having determined error, has the power to remit under section 12(2).  Now, I know the court itself has held that it does in O’Neil‑Shaw.  I do not want to open a can of worms.  It seems textually very difficult but even that court in O’Neil‑Shaw, at paragraph 32, drew a distinction between its function and that of a sentencing judge on remittal, did it not?

MR ODGERS:   I am sorry; I am not sure about that, your Honour.

FRENCH CJ:   To read the passage:

In relation to a sentence appeal, there is no question of substituting a trial by this Court for trial by jury.  Nor is there any objective in principle to this Court exercising sentencing powers in place of the sentencing judge.  Rather, the situation in which this Court is placed resembles that of any appellate court, civil or criminal, where error has been established but the Court is not in a position to determine the matter itself.

Then there is that functional distinction which is then used to justify the invocation of the general remittal power under section 12(2), a power which I note is a general application, whereas section 6(3) is of specific application to sentencing appeals.  But that is a textual difficulty.  The notion that even allowing for the possibility of remittal one can simply equate the function of a sentencing judge on remittal with that of the Court of Criminal Appeal in resentencing is, I would have thought, a bit difficult.

MR ODGERS:   I appreciate the distinction can be drawn between the two and I do not challenge that.  I just throw it into the mix, if I could use that language, that no one suggested that if it is remitted that there is a constraint, so if there is no constraint there, why ‑ ‑ ‑

FRENCH CJ:   Well, that proposition may be correct.

MR ODGERS:   Yes.

FRENCH CJ:   The question is whether that says anything about the court’s function.

MR ODGERS:   I understand that.  I will have to briefly address the textual problem because I think it cannot be avoided.  I think that was all I wanted to say about Deng.  So I will address the textual problem now, just if I could.  It has been pointed out in O’Neil‑Shaw and in the South Australian case of Kreutzer, although the ‑ ‑ ‑

FRENCH CJ:   There was a different provision in South Australia.

MR ODGERS:   I understand that, your Honour.

FRENCH CJ:   They could specifically do that.

MR ODGERS:   Yes, your Honour, but the words were substantially the same.  I appreciate the same problem arises though in the South Australian provision.  I will come to that in a moment.  Of course, can I also point out that in this Court in Pantorno it did not address the problem but in respect of a Victorian provision, which was essentially the same as the current New South Wales provision, the Court had no hesitation in remitting a matter, even though it had not formed a view about ‑ ‑ ‑

FRENCH CJ:   I am sure it is a very convenient thing to do.

MR ODGERS:   Yes.  The respondent has not raised this as an issue, your Honour ‑ ‑ ‑

FRENCH CJ:   No, it is just that it is a part of the subtext of your argument that ‑ ‑ ‑

MR ODGERS:   I think that is true and so I should address it.  I will take you to Kreutzer in a minute but I will just rely on what Justice Basten said in O’Neil‑Shaw [2010] NSWCCA 42, paragraphs 30 to 32. His Honour, after reciting the terms of section 6(3), pointed out correctly that:

Read literally, this provision allows of only two courses, namely to quash the sentence and impose another sentence, or to dismiss the appeal.  However, such a reading would deny an applicant the right to an effective appeal against sentence where the sentencing process has miscarried, but this Court is unable to determine what is the appropriate sentence.

His Honour concluded that the provisions should not be read literally.  He referred to TKWJ and then paragraph 32 came to the conclusion that you should not read it literally and that you can - if the appeal court cannot determine for itself what is the appropriate sentence then it may remit, notwithstanding the words of section 6(3).

We adopt that analysis.  I am not aware of any contrary authority.  We say Kreutzer provides supporting authority.  Can I just take you to that?  That will be the only other case I refer to in this context - Kreutzer [2013] SASCFC 130. There is a ‑ ‑ ‑

FRENCH CJ:   I think that provision is set out at 212, is it not?

MR ODGERS:   Paragraph 53 or 52, I think your Honour will find that it is set out, in the judgment ‑ ‑ ‑

FRENCH CJ:   It is just set out in the headnote.

MR ODGERS:   Yes.  I am going to take you to the judgment of Justices Gray and Blue, and your Honours will see in paragraph 51 it is set out.  The reason I responded to your Honour the Chief Justice by saying the same issue arises is that the language is, if it thinks that a different sentence should have been passed then it may do certain things.  That is the same problem, your Honour, as applies under 6(3) – the same problem if read literally – that Justice Basten was referring to; what if they say we are not in a position to determine what the sentence should be?  That is why we want to remit in order to have certain factual matters resolved.

FRENCH CJ:   Well, it expressly can remit.  It can quash the sentence and remit.

MR ODGERS:   Yes, but only if it thinks that a different sentence should have been passed.  That is the problem, your Honour.

FRENCH CJ:   Yes, but that does not mean that it has to determine what different sentence should have been passed.

MR ODGERS:   But what if, on remittal, a conclusion is reached that the sentence should be the same sentence?  That is the difficulty.  The Full Court might be in a position where they just do not know.  That is the problem, which is the literal construction problem.  You do not know what should happen, because it will depend on how the facts pan out.

In any event, your Honour, I submit respectfully that it is a similar problem to the form of words in 6(3).  The issue is dealt with at paragraphs 53 through to 54, and the court there said we do not think you should adopt a literal approach to the words.  At 55, the conclusion is reached that it:

should . . . be construed so as to enliven this Court’s power to resentence or remit for resentencing upon its being satisfied that the original sentence is vitiated and that the defendant should be resentenced.

“Should be resentenced” – that is all that is necessary.  We say the same approach should be adopted in respect of 6(3).  Interestingly enough, the Chief Justice provided a way of doing that which we rely on in his reasons at paragraph 19.  He said there are two alternative approaches to reach the conclusion that it should not be – it did not have the result that you could not remit if you were not sure what should happen.  He says:

The first is to construe the phrase “if it thinks that a different sentence should have been passed” to mean “if there is reason to think that a different sentence should have been passed”.

We would adopt the same approach to 6(3) so that you would remit if you think that there is reason to have an opinion that some other sentence less severe is warranted without actually concluding that it is.  There is reason to think that it is warranted – therefore, in those circumstances, you can quash the sentence and remit to have the factual issues determined.  We say that is a sensible way of dealing with the problem.  Whether it appeals to your Honour, I do not know. 

Nearly finished – I have dealt with Deng.  The Crown’s position, as I understand it, is that section 6(3) permits evidence of post‑sentencing events to be received – as was held in Kentwell and in Douar – but not evidence that is sought to be used to challenge or canvass findings made in respect of the facts of the offending.  

BELL J:   That have not been challenged successfully on the appeal, I think.

MR ODGERS:   Yes, yes.  They rely on Deng – and I have already dealt with that issue as best I can.  They also refer to Douar itself, which is the case which held that the court may receive evidence of events after the sentencing.  But we say that Douar does not assist the respondent - if I could just take you briefly to Douar (2005) 159 A Crim R 154. The actual argument that was advanced by the Crown – the DPP, or the Crown in that case is to be found at page 175 at paragraph 113. The argument that was advanced was that the use of the past tense in section 6(3) has the effect that:

the statutory question to be answered only by reference to events as they stood at the time of the original sentence . . . it is only when the 6(3) opinion may be formed using that reference point, that the gateway is open to the receipt of evidence of post‑sentence conduct –

That argument was rejected and that rejection was confirmed in Kentwell, but we say that that argument does not in any way support the argument being advanced here today because it accepts that you can look at events as they stood at the time of the original sentence.  So it does not preclude looking at the circumstances of the offending.  The fact that it is in the past tense cannot, we say, be read to somehow preclude the appeal court from revisiting, in the resentencing exercise, the facts relating to the offending.  So there is nothing in Douar, we say, which supports the approach that the respondent advances. 

Of course, Pantorno is an example of a case where the High Court remitted – where there was again a process error and the Victorian provision which is found – we have extracted the applicable Victorian provision which is effectively the same as the New South Wales one in footnote 9 of our written submissions.  I will not take you to it but it is essentially the same and we say did not prevent the High Court from adopting the convenient path of remitting. 

That leads to paragraph 8 in the outline where we have referred to various parts of the written submissions.  I do not really have anything to add to what is put there.  We say the evidence in Dr Nielssen’s report, in particular, would be admissible.  The criticisms of the Crown advanced do not go to admissibility but go to questions bearing on weight.  The issue can be conveniently dealt with on remittal where he could be cross‑examined and it would be up to ‑ ‑ ‑

FRENCH CJ:   So the question of the remitter power is raised directly by the relief that you are seeking?

MR ODGERS:   Yes, it is.  Well, we could win the appeal even if the Court thought that it could not remit and that the Court of Criminal Appeal would have had to deal with the issue itself.

FRENCH CJ:   Yes, I know, but in terms of that aspect of the relief that you seek?

MR ODGERS:   Yes, quite.

BELL J:   May I just raise one matter with you, Mr Odgers.  There is some issue as between you and the respondent concerning whether the material in Dr Nielssen’s report is inconsistent with the appellant’s acceptance of the agreed facts at sentence.  At page 348 of the appeal book, for example, at lines 10 and 11, in the expression of his opinion Dr Nielssen refers to the history provided by the appellant and says that it seems that the appellant was affected – I take this to be at the time of the offences – not only by the drug taken shortly before the offence but the fact that the drug was taken in combination with a moderate quantity of alcohol. 

I think that is a reference, if one reads the whole of the report, to the Japanese rice wine which, on the agreed facts, was consumed well into the incident after the appellant had repeatedly stabbed the complainant and, indeed, after she had stabbed him.  It is perhaps a relatively minor matter, but it does seem to raise an inconsistency in terms of the acceptance of the agreed facts.

MR ODGERS:   I will get my learned junior to examine that question and perhaps deal with it in reply, your Honour, briefly.  The argument we advance in the outline is, to the extent that there are matters of that kind, they can be properly dealt with at a remittal.  I have made the point that the new evidence might result in a significantly different determination of material facts.  I will not repeat what I have said there.  It is contained in the written submissions.  We have advanced the arguments why, in the particular case, this material is very significant, the new material.  I will not repeat what is contained in the written submissions.

As for the order sought, your Honours do not need me to say any more about that, I do not think.  At the end of the day we say that paragraph 47 in the Court of Criminal Appeal’s judgment involved a failure to exercise the discretion properly, that to approach it on the basis that you have a first bite of the issues and if you do not take it you are effectively precluded from having a second bite at a resentencing by the Court of Criminal Appeal, we say is an unduly restrictive approach.

The interests of justice are more nuanced than that and in all the circumstances of this case, for all of the reasons that have been ventilated, a proper exercise of the discretion would have led to a conclusion that the new material should have been received and used to go to the critical factual questions in respect of this appellant’s – the explanation as to why this appellant committed the extraordinary offence that he did given his history.  By his history I mean his apparent impeccable character and absence of any violence of any kind in the past.  That is perhaps the most significant factor there. 

So something very odd was happening, we say.  His Honour took a very unsympathetic view, if I might say, and the appellant wished to have the opportunity with the benefit of a new expert, a reputable expert, to revisit that factual question.  May it please the Court.

FRENCH CJ:   Thank you, Mr Odgers.  Yes, Mr Babb.

MR BABB:   I will just give the Court a moment to read the outline of oral submissions but I will say that I probably will not go through them in their entirety given the debate that has already occurred.

FRENCH CJ:   Yes, Mr Babb.

MR BABB:   Your Honours, I would not cavil with the refinement of the issue away from inadmissibility to more a question as to whether the discretion has miscarried in this particular case.  It is my submission that the discretion not to further consider the issue of causation in light of Dr Nielssen’s report did not miscarry in the Court of Criminal Appeal and that it was quite correct that the additional evidence that went in in the Court of Criminal Appeal went to the limited questions of progress since the sentence and the mental state of the appellant at the time that the Court of Criminal Appeal was considering whether another sentence was warranted at law.

The material was clearly sought to be adduced for that purpose for which it was ultimately considered, that is, post‑sentence situation but there was an ambiguity as to whether it was pressed in terms of the issue of causation and the various discussions with senior counsel for the appellant in the Court of Criminal Appeal have already been raised.  The new evidence may be admitted on the accepted basis that it demonstrates a miscarriage of justice but that is not this case, and when you look at the report of Dr Nielssen, in my submission, that is clear.

The cases where new evidence has been considered and issues that could have been determined in the original sentence hearing were reconsidered by an appeal court, or remitted, involve a particular type of case where there has been a process error that has meant that the sentencing processes failed and that was not this case.  This case was a fairly standard sentencing process where the evidence was adduced and given proper consideration.

The authorities where the matters that were relevant to pre‑sentence determination ‑ Kreutzer, as your Honour Justice Bell noted, was a disputed factual contention at trial which the judge failed to address entirely.  It was about the sourcing of guns that were found in the possession of the appellant.  In the case of McLean [2001] NSWCCA 58, it was a case of incompetence of counsel where there were very special circumstances in that case where the accused had raised the fact that the importation related to 2 tonnes of cannabis, not 11 tonnes, and, ultimately, the Court of Criminal Appeal found that it was possible that the sentencing judge proceeded on an incorrect basis, an incorrect set of facts and that the Court could not be positively satisfied that a substantial miscarriage of justice had not occurred.

Those cases – another one is where there was procedural unfairness, Pantorno, where there was consideration of – where the sentencing judge without any discussion in Court had sentenced on the basis that the drug was in the possession for the purpose of supply when counsel had indicated that their contention was that it was for own use and the prosecution it remained mute in relation to that and there was a finding that there had been procedural unfairness ‑ mainly only because of the concession made in this Court by counsel for the Director that there had been procedural unfairness and that that ground should have been held to have been made out.

Now, all of those matters go to situations where, in the sentencing court, there has not been a traditional sentencing process where, because of procedural unfairness or the incompetence of counsel, the processes miscarried, or there has been a live issue before the sentencing judge and the judge has simply failed to make any determinations about a contested issue.

This case is closer to the case of Deng.  My friend has taken you to that case, but I would like to look at it from my perspective; it is 176 A Crim R.  It was a Crown appeal and the sentence was found to be manifestly inadequate – that is at paragraph 81.  The question of what is the usual basis of additional material going in was made clear in that case at paragraph 28 and I do not think my learned friend has any contention against this. 

The usual basis ‑ and what was referred to by the Crown Prosecutor in the Court of Criminal Appeal ‑ is where, after error has been found and consideration of resentencing is being considered, the Court routinely admits evidence of matters occurring after the date of the original sentence on the limited basis that it can be taken into account on resentence.

FRENCH CJ:    Now, is that as an incident of the Court’s appellate jurisdiction conferred by, in this case, section 6 or is it an exercise of the general aspect of the power in section 12, to which I think Justice Gageler referred earlier?

MR BABB:   It flows from the powers in section 12, in my submission, in terms of having a power to admit additional material but really flows back to the concept of avoiding a miscarriage of justice, which is central to it.  Really, that is the essence of the test in section 12, necessary or expedient in the interests of justice.

BELL J:   I am not sure that the Court has located its power to receive material on an appeal against sentence either by the prisoner or the Crown on the basis of the power under section 12.

MR BABB:   No, it is not referred to in any of the cases.

FRENCH CJ:   It would be just an incident of the nature of the appellate function conferred upon the Court.

MR BABB:   Possibly, your Honour, except insofar as the Court of Criminal Appeal is a statutory court and does not have the inherent powers of other courts and is, generally, been said to have been limited to those powers that are in the Act. 

FRENCH CJ:   Well, even if a statutory court says a thing called an implied incidental power and, in the event of that, for the Federal Court a long time ago.

MR BABB:   Yes, of course.  So, it is the case that in none of the cases dealing with the admission of evidence not before a sentencing judge, has there been any reference to section 12.  In the case of Deng, the Court considered a case of Macadam‑Kellie and that is at paragraph 31 and following.  It was a quite different situation to this one.  Both the forensic psychiatrists involved in this case were involved in that case but, in that case the Court made a finding against the appellant on the basis that Dr Westmore did not support Dr Nielssen’s conclusion and some additional evidence was then admitted on the appeal to say that that was a misunderstanding, that in fact he did support the finding there.

That is really a clarification of evidence that was adduced in the sentence hearing in order to avoid a miscarriage of justice, as opposed to this situation where, in my submission, there is a real contrast and a striking difference between the evidence of Dr Westmore and the report of Dr Nielssen.  My learned friend referred specifically to paragraph 21 and said “It was immediately apparent” that there the “stark conflict” was with the “agreed facts”. 

Equally, that principle of stark conflict ‑ rather than clarifying what had been a misunderstanding – but stark conflict with the way the case had been run can extend also to conflict between the evidence called, or sought to be called, in the appeal court and the evidence that was called and, in this case, called by the appellant in the sentencing court with no attempt to withdraw that material and no way to reconcile the two reports and the conclusions raised.  In my submission, the analysis at 44 and 45 of the case of Deng by Justice James is an important and very central consideration in terms to a consideration as to whether fresh evidence should be able to be adduced once error has been found. 

Counsel should be bound, and a case should be consistent with the way that it was run, unless it can be demonstrated that there was incompetence of counsel in the way that it was run below.  There are some exceptions where a miscarriage of justice has clearly occurred, but that is not this case.

GAGELER J:   Mr Babb, could I just ask you perhaps a slightly tangential question?  If we leave fresh evidence out of account for a moment and just think of the fact finding by the Court of Criminal Appeal in resentencing, are there cases that have considered whether, on the material that was before the trial judge, the Court of Criminal Appeal can come to a different determination of fact where the judge’s determination of fact has not been shown to be the basis of the error that leads to the resentencing?

MR BABB:   I cannot answer that question, your Honour – not that I am aware of.

BELL J:   I think there was some discussion of it in AB (2014) NSWCCA 339. Shortly put, to confirm that the principles applied by the Court of Criminal Appeal are on a House v The King and not a Warren v Coombes basis; in other words, if there is not error attending the factual findings of the sentencing judge, the Court of Criminal Appeal proceeds upon acceptance of those findings.  Now, I think that has been put in some controversy more recently by a case of Clarke (2015) NSWCCA 232.

GAGELER J:   I suppose, just getting back to my basic concern that the focus might be more appropriately on the nature of the appellate function under section 6(3) than it is on the supplemental or ancillary power under section 12.

MR BABB:   Yes.  In that regard, though, there still has to be a threshold as to what material is to be considered in relation to the 6(3) power.  The submission of the respondent is that in the usual course material post‑sentence will go in and that unless there is a strong indication that there would be a miscarriage of justice, material that is trying to re‑canvass factual determinations made by the trial judge where there has been no ground of appeal and no error demonstrated do not go into the mix.

KIEFEL J:   You are saying that the appellate function is, as referred to as I understand it in AB, that the appeal court absent an issue raised by the

notice of appeal in relation to a factual finding, which would give it an opportunity to identify an error, would not proceed on that basis because that would not be consistent with the appellate function?

MR BABB:   That is exactly our submission, your Honours, and follows on from really the approach that was taken in a case of Carroll.  It is at a different stage but it is very analogous, that question of error and the ground of appeal is required in order to revisit those findings and it is clear that there was no error on these grounds in this case on the basis that the finding was not open or was unreasonable; nor could there have been.

Now, your Honours, your Honour the Chief Justice has referred to the power to remit and clearly Kreutzer and O’Neil‑Shaw have outlined the strict textual interpretation.  We would suggest that there is not a power.  I am really not in a position to advance argument and positively put a position at this stage.  If you would be assisted by a note, I would be happy to do that.

FRENCH CJ:   I mean, we are being asked to substitute an order of remittal for the order made by the Court of Criminal Appeal.

MR BABB:   That is true which I note was not what was sought in the Court of Criminal Appeal.  It is something sought now that was not sought in the Court of Criminal Appeal and was not ventilated there at all and it is remiss of me that I do not have a firm position on that but if you would like a note, I would be happy to prepare one.

FRENCH CJ:   I think we would be assisted by a note with a……response from Mr Odgers.

MR BABB:   Otherwise, my submissions are as set out in my written submissions.  There was no miscarriage, in my submission, of the discretion not to consider the report of Dr Nielssen on the issue of causation.

FRENCH CJ:   Thank you, Mr Babb.

MR BABB:   Thank you, your Honour.

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Would your Honours be assisted by a note on the question of the proper approach to determination of facts on resentencing and whether House v The King principles apply or it is different.  We did not look at that specifically in terms of authorities but it seems to be an important issue and ‑ ‑ ‑

FRENCH CJ:   I think the position is that we do not want a proliferation of notes and this is a matter that – we know what House says.

MR ODGERS:   I can understand, your Honours.  As I understand it - I understand that.  Of course, no, the point I am making is the New South Wales Court of Criminal Appeal has, I think, said it is a matter for a bench of five to ultimately determine the proper approach to how an appeal court approaches factual findings below when it is proceeding to resentence, whether it does adopt narrow approach, which is the AB approach ‑ ‑ ‑

BELL J:   Which is the House v The King approach.

MR ODGERS:   ‑ ‑ ‑ which is the House v The King approach or ‑ ‑ ‑

BELL J:   Or whether it departs from House v The King. 

MR ODGERS:   That is right in circumstances where error has already been found and it is resentencing and I think the note would have said, if your Honours had asked for it, there is no – the authorities are not settled on the question and perhaps your Honours will need to look at that question. 

FRENCH CJ:   Well, I think we have to rest on the arguments we have heard so far otherwise we are going to end up with a blizzard of notes.

MR ODGERS:   I understand, thank you, your Honour.  My friend relied on Carroll.  We say that is not analogous.  Carroll was a case where it was held an appeal court cannot find error – factual error if there is no ground alleging error, factual error.  You cannot, say, for example, find a sentence was manifestly inadequate on the basis of factual error if there was no ground asserting factual error.  That is an entirely different question to the one that is before this Court which is, if a court is proceeding to resentence, how does it determine the facts for the purposes of resentencing.  So we say Carroll does not assist the respondent.

As best as I can, as I understand it, in respect of the wine or the Japanese drink, our position is that when you read Dr Nielssen’s report carefully, at 343, line 33, it is apparent that there is no inconsistency:

in the course of the assault he consumed –

Dr Nielssen does not appear to have relied on the consumption of the alcohol ‑ ‑ ‑

BELL J:   Then, at 345, there is another reference to the “possible role of the rice spirit” and then his opinion seems to incorporate it.  That is the matter I raised.

MR BABB:   My learned junior says there are English authorities on section 12, but I think you probably do not want a note on that.  May it please the Court.

FRENCH CJ:   Yes, thank you, Mr Odgers.  There will be seven days for your note and a further seven to respond.

MR BABB:   Thank you.

FRENCH CJ:   The Court will reserve its decision.  The Court adjourns to 10.15 on Tuesday, 12 April.

AT 12.06 PM THE MATTER WAS ADJOURNED