DL v The Queen

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.