2.Set aside order 3 of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 13 April 2017 in the appeal against sentence.
3.Remit the proceeding to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination of the appeal against sentence.
On appeal from the Supreme Court of New South Wales
Representation
G A Bashir SC with G E L Huxley for the appellant (instructed by Matouk Joyner Solicitors)
K N Shead SC with T L Smith for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
DL v The Queen
Criminal law – Appeal against sentence – Where appellant convicted of murder – Where primary judge found it probable that appellant acting under influence of some psychosis at time of offence – Where primary judge not satisfied appellant possessed intention to kill – Where primary judge's discretion miscarried by giving primary significance to standard non-parole period – Where Court of Criminal Appeal excised power to re-sentence – Where prosecutor conceded there was no issue with primary judge's factual findings – Where Court of Criminal Appeal found primary judge's findings open – Where Court of Criminal Appeal rejected primary judge's finding that appellant had suffered temporary psychosis which precluded forming intention to kill – Where Court of Criminal Appeal took into account evidence of appellant's progress since sentence on the "usual basis" as discussed in Betts v The Queen (2016) 258 CLR 420 – Where Court of Criminal Appeal failed to put appellant on notice of inclination not to act on concession made by prosecution – Whether denial of procedural fairness – Whether miscarriage of justice.
Words and phrases – "circumstance of aggravation", "concession", "miscarriage of justice", "new evidence", "objective seriousness", "procedural fairness", "re‑sentencing", "unchallenged factual findings", "usual basis".
BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ. On 27 March 2008, following a trial in the Supreme Court of New South Wales (Hulme J and a jury), the appellant was convicted of the murder of a 15-year-old school girl, TB. The appellant was aged 16 years at the date of the offence. The offence occurred shortly before 4.00 pm on 19 July 2005. The appellant attacked TB on her way home from school. He stabbed her repeatedly to the upper back, upper chest, face and head. In all, there were 48 stab wounds. One wound penetrated the heart and the resulting blood loss led to death within a short interval. The appellant only broke off the assault when he was confronted by a passer-by.
In the course of the attack, the appellant cut his hand. Later…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DL v The Queen [2018] HCA 32
Case
[2018] HCA 32
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by DL against a sentence imposed by the Court of Criminal Appeal of the Supreme Court of New South Wales. DL had been convicted of murder. The dispute concerned the approach taken by the Court of Criminal Appeal in re-sentencing DL, particularly in light of the primary judge's findings regarding the appellant's mental state at the time of the offence.
The legal issues before the High Court were whether the Court of Criminal Appeal had denied DL procedural fairness and whether a miscarriage of justice had occurred. Specifically, the High Court examined whether the Court of Criminal Appeal erred by failing to put DL on notice of its inclination not to act on a concession made by the prosecution, and whether the appellate court's rejection of the primary judge's factual findings, despite the prosecution's concession that these findings were unchallenged and open on the evidence, constituted a miscarriage of justice.
The High Court reasoned that the Court of Criminal Appeal had indeed denied DL procedural fairness. The appellate court had indicated it would proceed on the basis of the primary judge's factual findings, which included a finding that DL was likely acting under the influence of psychosis and did not possess the intention to kill. However, the Court of Criminal Appeal later rejected this finding without affording DL an opportunity to address this shift in approach. This failure to provide notice of the court's changed inclination, particularly when it departed from a concession made by the prosecution and the primary judge's findings, amounted to a miscarriage of justice.
The High Court allowed the appeal, set aside the order of the Court of Criminal Appeal, and remitted the proceeding to that court for a determination of the appeal against sentence according to law.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order 3 of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 13 April 2017 in the appeal against sentence.
3. Remit the proceeding to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination of the appeal against sentence.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The primary judge considered that there was "much irrationality about what occurred". This observation took into account the absence of evidence that TB had slighted or rejected the appellant and the absence of any other conceivably rational explanation for the attack. His Honour considered that the irrationality of the attack was itself against a finding of premeditation. The psychiatric evidence adduced at the sentence hearing The prosecution adduced evidence from Dr Kasinathan and Dr Allnutt. Dr Kasinathan had been the consulting psychiatrist at the juvenile justice facility in which the appellant was housed. He had seen the appellant on some 20 to 30 occasions. Dr Allnutt is a consultant forensic psychiatrist and he interviewed the appellant shortly before the sentence hearing, some three years after the offence. The appellant called Dr Nielssen, who had interviewed the appellant again shortly before the sentence hearing. Each of the psychiatrists was cross‑examined and none departed from the opinions expressed in their reports. Dr Allnutt diagnosed the appellant as suffering from "depressive and anxiety symptoms. Probably with obsessive compulsive symptoms, of obsessive compulsive disorder." Dr Allnutt acknowledged that there might be a connection or causative link between the appellant's anxiety disorder and his offence, but was unable to conclude that there was. Dr Allnutt considered that possible explanations for the frenzied nature of the attack (committed by a person who until then seemed to have led a normal life) were psychosis; an interaction with TB that went wrong; and a loss of control and temper. While Dr Allnutt could not rule out the possibility of psychosis, he considered the appellant had been highly disturbed at the time of the offence and that there might be another, non‑psychotic but irrational, reason for it. Dr Kasinathan assessed the appellant the day after the offence and noted that his presentation was "strange" and thought form was not normal. This was the only occasion when Dr Kasinathan noticed these abnormalities. Dr Kasinathan agreed with Dr Allnutt's diagnosis of an anxiety disorder with depression. Dr Kasinathan was unable to see any connection between the appellant's anxiety symptoms and the offence. He agreed that the appellant's affect generally was somewhat restricted and, while this could be a sign of schizophrenia, he thought it was probably an autistic trait. Dr Kasinathan pointed out that the appellant had been under regular observation and that no psychosis had been detected. He was unable to find a psychiatric explanation for the attack; he postulated that it might have been an overly explosive reaction to a slight, amplified by anxiety. Dr Nielssen considered that, at the time of the offence, the appellant had been, and at the date of the sentence hearing still was, in the prodromal phase of schizophrenia. This is the phase of the illness between the decline in social function and the emergence of frank psychiatric symptoms. It is usually only apparent in retrospect when acute symptoms have manifested. Dr Nielssen acknowledged that the illness had not developed as he would have expected in the period of three years since the offence. Dr Nielssen also acknowledged that a trial of medication for schizophrenia seemed to have no effect. Neither consideration led Dr Nielssen to depart from his opinion. That opinion took into account the appellant's mother's observations of the appellant's decline in scholastic performance and social function prior to the offence; a family history of mental illness; the appellant's striking abnormality of emotional expression in the course of each of Dr Nielssen's interviews with him; and a subtle impairment in the appellant's capacity for logical thinking. In summary, Dr Nielssen thought it likely that, at the time of the attack, the appellant was "in the early phase of psychotic illness". The primary judge's finding
Decision
Reasons for decision
BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ
(dissent)