NEW SOUTH WALES. Criminal Law-Criminal appeal-Recommendation to nercy-SentenceAppeal by
Attorney-General-Increase of sentence-Judicial discretionOriminal Appeal Act 1912 (N.S.W.) (No. 16 of 1912), sec. 5D-Crimes (Amendment) Act 1924 SYDNEY,
(N.S.W.) (No. 10 of 1924), sec. 33. July 30;
Sec. 5D of the Criminal Appeal Act 1912 (N.S.W.) (inserted by sec. 33 Aug. 6, 24.
of the Crimes (Amendment) Act 1924 (N.S.W.) ) provides that " the Attorney- General may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or any Court of Quarter Sessions and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper."
Held, by Knox C.J., Gavan Duffy, Powers and Starke JJ. (Isaacs and Higgins JJ. dissenting), that sec. 5D of the Criminal Appeal Act 1912 confers an unfettered discretion upon the Court of Criminal Appeal to alter the sentence imposed by a trial Judge.
On an appeal by the Attorney-General under that section the Court of Criminal Appeal held that in reviewing the exercise of the discretion of the trial Judge the Court ought not to interfere with a sentence unless it is not merely inadequate, but manifestly so, because the learned Judge in imposing it either proceeded upon wrong principles or undervalued or overestimated some of the material features of the evidence." And being of opinion that the trial Judge, when imposing sentence, had been influenced by the presumption that the recommendation to mercy made by the jury in the case implied that it in substance accepted the prisoner's version of certain material facts and, therefore, that his Honor had erred in that respect, the
Court of Criminal Appeal considered the matter for itself and decided that, in the circumstances, the sentence of imprisonment for twelve months should be set aside and a sentence of penal servitude for five years substituted therefor.
Held, by Knox C.J., Isaacs, Gavan Duffy, Powers and Starke JJ. (Higgins J. dissenting), that an application for special leave to appeal from the decision THE KING. of the Court of Criminal Appeal should not be granted.
R. v. King, (1925) 25 S.R. (N.S.W.) 218; R. v. Withers, (1925) 25 S.R. (N.S.W.) 382, and Skinner v. The King, (1913) 16 C.L.R. 336, referred to.
Special leave to appeal from the decision of the Court of Criminal Appeal of New South Wales R. v. Whittaker, (1928) 28 S.R. (N.S.W.) 411, refused.
APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.
Alexander Lindsay Whittaker was tried before Ferguson J. and a jury, at the Central Criminal Court at Sydney, for the murder of his wife. The evidence disclosed that she died as a result of receiving severe injuries in practically every part of her body, the injuries being in the nature of severe bruises and cuts. Following upon an illness the…
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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AGLC
Whittaker v The King [1928] HCA 28
Case
[1928] HCA 28
Decision Date
CaseChat Overview and Summary
The case of *Whittaker v. The King* concerned an appeal to the High Court of Australia following a decision by the Court of Criminal Appeal of New South Wales. The appellant, Alexander Lindsay Whittaker, had been convicted of manslaughter and sentenced to twelve months imprisonment with hard labour. The Attorney-General appealed this sentence to the Court of Criminal Appeal, arguing it was inadequate. The Court of Criminal Appeal agreed, finding that the trial judge had erred in his sentencing by misinterpreting the jury's verdict and recommendation to mercy, and substituted a sentence of five years penal servitude. Whittaker then sought special leave to appeal this decision to the High Court.
The primary legal issue before the High Court was the scope of the discretion granted to the Court of Criminal Appeal under section 5D of the *Criminal Appeal Act 1912* (N.S.W.) to vary sentences. Specifically, the Court had to determine whether this discretion was unfettered, or if it was subject to established principles governing appellate review of discretionary decisions. A related issue was whether the Court of Criminal Appeal had correctly applied these principles when it overturned the trial judge's sentence, particularly in its assessment of the trial judge's reasoning regarding the jury's verdict and recommendation for mercy.
A majority of the High Court (Knox C.J., Gavan Duffy, Powers, and Starke JJ.) held that section 5D conferred an unfettered discretion upon the Court of Criminal Appeal to alter sentences. They agreed with the Court of Criminal Appeal's finding that the trial judge had proceeded on a wrong principle by interpreting the jury's recommendation to mercy as a factual finding that the prisoner's version of events was substantially true, thereby limiting his sentencing discretion. The majority concluded that the Court of Criminal Appeal was justified in substituting its own sentence. Isaacs and Higgins JJ. dissented.
The High Court, by a majority, refused the application for special leave to appeal. This meant that the decision of the Court of Criminal Appeal, which had increased Whittaker's sentence to five years penal servitude, stood.