Whittaker v The King

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.