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DL v The Queen [2018] HCATrans 83 (11 May 2018)

Last Updated: 11 May 2018

[2018] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S309 of 2017

B e t w e e n -

DL

Appellant

and

THE QUEEN

Respondent

BELL J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 MAY 2018, AT 10.02 AM

Copyright in the High Court of Australia

MS G.A. BASHIR, SC: May it please the Court, I appear with my learned friend, MS G.E.L. HUXLEY, for the appellant. (instructed by Matouk Joyner Solicitors)

MS K.N. SHEAD, SC: May it please the Court, I appear with my learned friend, MS T.L. SMITH for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Ms Bashir.

MS BASHIR: Your Honours, we have provided the Court with our oral outline. Would the Court like to wait - - -

BELL J: Yes, perhaps if you just give us a moment. Yes, Ms Bashir.

MS BASHIR: Your Honours, sections 5(1) and 6(3) of the Criminal Appeal Act 1912 (NSW), which is found in the joint authorities book No 1, section 6(3) being a common form sentencing appeal provision, have not extinguished or limited by express words or otherwise the obligation to afford procedural fairness to an offender on his or her appeal. The authority to determine an offender’s appeal may be lawfully exercised only if procedural fairness is extended, and that has been affirmed recently by Chief Justice Bathurst’s decision in Lehn v The Queen (2016). It is at tab 11 of the second joint authorities book.

BELL J: I think, Ms Bashir, the respondent accepts that procedural fairness applies.

MS BASHIR: Your Honour, it was paragraph 65 of that judgment.

BELL J: Yes.

MS BASHIR: It is the content of the obligation on an offender’s severity appeal that appears to be in issue on ground 1 of the appeal. Your Honours, in our submission, the first applicable principle as set out in our written submission is that a person is entitled to have adequate notice and opportunity to be heard before any judicial order is pronounced against him or her, which includes the opportunity to put his or her case and to meet the case that is put against him or her.

The second applicable principle is that a court is to give notice of an intention to consider evidence which supports an adverse or aggravated finding on sentence where no such finding is sought by the Crown and to provide an opportunity to an offender to be heard on it.

A useful summary of the leading authorities is found, and I need not trouble the Court by taking them to it, but is found in the decision of President Buss of the Western Australian Court of Appeal in Suleiman v State of Western Australia which is at tab 16 of our appeal book. I am happy to take the Court to Pantorno, Parker and the like, but one of the – in fact if one turned to the joint authorities book 2, tab 16, page 762, commencing at paragraph 42 and over on 43, there is an extract from this Court’s decision in Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 which includes the affirmation at paragraph 43, Chief Justice Mason and Justice Brennan, in relation to adversarial proceedings and this is the very last sentence:

Especially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer.

Again, Justices Deane, Toohey and Gaudron accepting that it was incumbent on a sentencing judge to alert counsel for an offender to a lack of acceptance of underlying assumptions.

Your Honours, I will not trouble the Court by taking them through tab 8 and the like, but the third obligation is, we say, an extension of those principles to putting an offender on notice if it is contemplated that unchallenged evidence or factual findings on an appeal as to a matter in mitigation is not to be accepted. We put into the joint appeal book Beevers v The Queen and Lennon v The Queen for that purpose. Could I take the Court to what happened in this case?

BELL J: Yes, and perhaps it might be useful to take us to the exchanges that are touched on in Justice Leeming’s reasons at paragraphs 10 and 11. His Honour considered, in light of a submission that you made, that indeed the requirements of procedural fairness were satisfied. Now, as I understand your argument, it is suggested that that is a misapprehension on his Honour’s part.

MS BASHIR: Yes, your Honour. If I could take the Court through from the beginning as to what occurred and just by way of summary; first of all, there was the exchange of written submissions and in the Crown written submissions there was no challenge to factual findings of the sentencing judge including on psychosis, intent and premeditation and the Court has those written submissions in the respondent’s further materials.

The Crown in written submissions did make a submission in relation to objective seriousness that when the victim’s age was taken into account in the redetermination of objective seriousness of the offence, then the circumstances of the offence placed the offence in the high range of objective seriousness. So that is where the issues lay from the written submissions.

In oral submissions then the appellant confirmed, and this is in our further materials at page 184, line 26, where the appellant submitted that there was a difference between objective seriousness and his Honour’s finding on that:

as opposed to the facts that were found and nobody has any dispute in relation to the facts that [were] found.

I am sorry, this transcript has some errors. We do not ask the Court to re-find the facts. Evidence was tendered by both parties on the usual basis, as that expression is explained in this Court’s decision of Betts v The Queen. The Crown’s oral submissions did include comments that some factual findings were generous or extremely generous to the appellant and on one occasion they were said to be unduly favourable. That is at 192. You will find those references at lines 7, 11 and 30. I think there is one also on the page before at line 46. However, the Crown, nevertheless, then at line 37, I think it is, said this:

We accept that the sentence, because of Muldrock, needs to be adjusted; but in taking into account the factors that I’m putting to your Honours now, that adjustment should be minimal, in our submission.

In our submission that was a concession by the respondent that the appeal would be upheld and a lesser sentence imposed – that some lesser sentence was warranted. At 196, about line 11 – because of some of the conflicting statements of the Crown, Justice Rothman asked the Crown:

But you don’t take issue with the, what I’ll call the substantive findings of his Honour below, that is, either the assessment of criminality, the findings of fact that his Honour made or anything of that kind?

The Crown confirmed:

No, your Honour, except to say that in the circumstances, the applicant was well catered for in terms of those features that were taken into account to his considerable advantage.

Justice Rothman said:

Yes, that’s why I asked the question.

The Crown then again confirmed:

Yes, that’s right, your Honour. In the absence of a Crown appeal, I don’t think I could say anything else. Thank you, your Honours.

That was the last thing the Crown said before he sat down. I was asked to reply and the first thing that occurred was reliance on the concession, that is, the appellant immediately indicated:

I think my friend for that concession just made, and I have brought up the decision of Betts –

and I offered copies of Betts to the court – expressly referring to the usual basis and repeating, at line 31:

there is no issue between the parties as to the findings of his Honour -

There was no statement from the Bench otherwise. I did go on to say – and I have to confess it was very inelegantly expressed – however, I did go on to the determination on objective seriousness and that being the one exception, that is, because of the decision in Way and the manner in which the determination of objective seriousness had been breached by reference to the standard non-parole period being determinative, it was incumbent on the Court of Criminal Appeal to make their own determination of objective seriousness – as that was then understood post-Muldrock.

BELL J: The very error was an error of giving primary significance to an assessment where in a range objective seriousness was located so that necessarily one had to revisit that assessment.

MS BASHIR: Yes, your Honour.

BELL J: But, in any event, on an appeal by a convicted person against sentence whilst the appellate court in the event error is found in the usual case, absent any challenge to the findings of primary fact, would not revisit those, it might take a different view of objective seriousness in light of those.

MS BASHIR: Yes, that is our point and that was the point that I was making. The reference to “completely unfettered”, your Honour, was a reference to “completely unfettered by a standard non-parole period” - him being a young person – and, in fact, I think, the Crown had asked to find a reference to it - had used that term “unfettered” in relation to the standard non-parole period either in written submissions or oral submissions on the appeal.

That was the nature of that submission to the court and, although I did not have the judgment of – I could not remember whether it was the recent decision of DeRosier or YY at the time and I think it was YY - that is exactly what it says - confined to objective seriousness one could not just hold on to an erroneous finding of objective seriousness under Way, the court has to redetermine that.

Be that within – be that that they come to the conclusion as to it being a little below the mid-range as his Honour did and as the Crown conceded in the re-exercise of the sentencing discretion would occur, and we were not seeking to traverse that, we were simply pointing out that they had to do that, they could not avoid doing that task on this appeal in the exercise of re-sentence.

There was another reference to Betts over at line 12 of 197 where I asked the court to draw a line in the many misconduct entries of the appellant while he was in juvenile custody and made it quite specific that it was really only in relation to matters subsequent to his Honour’s sentence, that is, in the sense of Betts matters going towards rehabilitation and we would express that as also conditions in custody, hardship in custody, even mental health issues in custody, things arising since sentence is how we understand Betts to use the term “the usual basis”.

So, in our submission, your Honour, to say in those circumstances, that is, after the concessions and the express reliance with the court, the submissions on sentence finish at 197, line 44 where I turn to conviction and your Honours there was nothing raised by the court at all in relation to factual findings on intention, psychosis or premeditation.

As his Honour Justice Leeming noted in his reasons for judgment, at around paragraph 6, there was ample time for the court to do so; the matter had been listed for another half day. Indeed, re-reading this last night, I saw that at page 191 his Honour commended the concision of the submissions of the parties.

BELL J: Ms Bashir, can I take you back to the Crown’s concession that you directed our attention to, at page 192, I accept the significance of that in the context of your procedural fairness challenge. Taking it as a concession that in light of Muldrock there was a need to adjust, albeit only in the Crown’s submission to what was described as a minimal degree, on one view the notion that the Court of Appeal would intervene to adjust to a minimal degree to take account of a Muldrock error would itself display error.

MS BASHIR: Your Honour, at that point in time, the Crown and this Crown had submissions reserved before the Court of Criminal Appeal in the matter of Lehn. The Crown had been arguing that what Kentwell meant was that there could be just an adjustment in a discrete area, and the appellants were arguing, no, it means sentencing afresh. I do want to go to Kentwell and make submissions on what we say Kentwell requires the Court to do in sentencing afresh. The Crown was using the word “adjustment” with some purpose, which in fact underscores that there was no challenge to the factual findings.

That concession comes on the back of all of the submissions about generous findings and unduly favourable findings and the like. If subsequent to that there is finally the concession some time later of the acceptance of the judge’s assessment of criminality, once that concession is made there must be some adjustment or lowering, or certainly a movement away from that submission that it would be minimal.

BELL J: Would it not still have been open to the court, acting on the findings of primary fact, to conclude that no less a sentence was warranted in law?

MS BASHIR: In our submission, no, particularly in the circumstance where the standard non-parole period applying to a juvenile had meant that his youth and, in this case, immaturity and extreme immaturity – so at age 26/27 there are notations he is still operating at the age of a 16-year-old. So in those circumstances, youth had to assume its proper significance in the process and not just the youth of the victim. We accepted the youth of the victim had to be taken into account and we do not seek to shy away from the fact that this was a brutal attack on a young teenager.

BELL J: Brutal and unexplained, save for the acceptance by the primary judge that there was an underlying psychiatric illness.

MS BASHIR: Yes, “some psychosis” is the term used.

BELL J: Yes. That, of course, raises on the one hand considerations that moral culpability is at the lower end of the scale and on the other hand considerations of the protection of the community. So these are balancing exercises that it falls to the appellate court to weigh upon acceptance of the findings of primary fact, if not challenged.

MS BASHIR: Yes, your Honour, we accept that. However, in this case it was incumbent on the court to raise any issues in relation to psychosis and the like with the parties.

BELL J: That aspect of your challenge, you may take it, I think is understood. I am really taking up with you the contention that, as it were, Muldrock error having been identified, no challenge to the findings of primary fact having been advanced, you seem to be submitting that it was inevitable that the sentence had to be adjusted downwards.

MS BASHIR: I think, your Honour, if I put in this way, and in our submission the lack of procedural fairness, the findings of the majority and, in answer to your Honour’s question, are interrelated. That is because when one comes to the consideration of what to do in those circumstances and an application of Stead v State Government Insurance Commission the question for the Court is whether or not the breach could have had no bearing on the outcome.

In this case, though, your Honour, the majority specifically relied on their substituted findings of fact to increase and elevate the seriousness of the offence. If I could take the Court to those passages - - -

EDELMAN J: It is not put against you, as I understand it, that if there had been a denial of procedural fairness such that you were denied the opportunity of addressing these issues, then the sentence would inevitably have been the same.

MS BASHIR: That is our understanding also, your Honour.

EDELMAN J: Then where does this go if that point is not raised against you?

MS BASHIR: Your Honour, in answer to her Honour’s question, the presiding judge, in circumstances where what occurred here was not simply a reassessment of objective seriousness on the basis of the findings of fact of the primary judge, and what happened was an assessment of objective seriousness using the substituted findings – so if I could take the Court and show the Court how that worked, and it is - - -

GORDON J: Just before you start that, could I just ask this question?

MS BASHIR: Yes.

GORDON J: If you assume for the moment that procedural fairness had been extended - - -

MS BASHIR: Yes, your Honour.

GORDON J: - - - and the Court was not substituting its own findings in respect of objective seriousness, that is intent and other things, but it took the findings of the primary judge as they were set out in his sentencing remarks, do you accept that on re-exercise of the sentencing exercise that they were entitled to determine objective seriousness at a higher level consistent with those earlier findings, giving rise to either the same or higher sentence?

MS BASHIR: Your Honour, to take the very last part of what your Honour Justice Gordon said first, the sentence as imposed by his Honour Justice Hulme, I suppose was there as a check at the end but it did not – there was no adjustment by this Court in resentence.

GORDON J: I am not talking about adjustment. I am talking about in the exercise of the discretion afresh, procedural fairness accorded, findings of fact taken as set out by the primary judge, time to do it again, consider objective seriousness, say this is much more serious in our view and we are going to assess and by the way that gives rise to a higher – or a potential of the same or higher sentence.

MS BASHIR: Your Honour, speaking generally as to offenders’ appeals, that can and does happen frequently.

GORDON J: And gives rise to a Neal warning.

MS BASHIR: Well, a Neal warning is if there was – if there was an intention to increase, but in our submission on this appeal, that was not open to the court for several reasons, including that the normal principles of restraint on offenders’ appeals were not applied by the court and, in our submission, some of the findings were wrong by the court.

So, in our submission, a principled approach is the one taken by the dissenting judge, Justice Rothman, and his result would have seen a sentence imposed on this young immature person; looking at paragraphs 115 through to 117, that were substantially lower. It is at appeal book 92.

KEANE J: But you are not asking us at the end of this process to impose the sentence that Justice Rothman thought appropriate.

MS BASHIR: No, your Honour, this Court is not a sentencing Court and, indeed, this Court does not have all of the materials on sentencing before you. We ask - - -

NETTLE J: So, why are you taking us to what you say was the correct approach? If you win on your natural justice or procedural fairness point, it just goes back for resentence, does it not?

MS BASHIR: Your Honour, in our submission, this Court should state with some clarity what Kentwell, Betts and Lehn mean, because it is very clear from the approach taken by the majority in this case that the normal principles of appellate restraint were not applied, that the court considered that resentencing afresh meant essentially a de novo approach and the significance of that for offenders’ appeals throughout the country is large. In our submission, the Court would look at the principles that apply and make a statement clarifying those principles without getting into the nitty gritty of the detail of the facts.

NETTLE J: Until now, I rather thought they were fairly clear but plainly, as you say, that is not the case.

MS BASHIR: Well, your Honour, in our submission, they are clear but this - - -

EDELMAN J: There is a statement in Betts that it is not a de novo approach, is it not?

MS BASHIR: Your Honour, that is our submission as to the effect of Betts, but I think perhaps the misunderstanding - in our submission, we cannot see that Betts could be read this way and we rely on Betts and did at the appeal - is if Betts is read as simply applying where there is a change of approach by one of the parties from an approach taken below to an approach taken in the appeal court, in our submission, Betts is not restricted in that manner and, indeed, Betts is authority to what the usual basis means and that evidence tendered on resentencing that goes to conditions in custody and the like, that it is for a very limited use and it does not include a use of disturbing findings that were not challenged on appeal. It does not include a use of substituting aggravated factual findings on matters such as intention, psychosis and the like. It is a different situation, of course - - -

BELL J: I think Betts may leave open that in an exceptional case new evidence may go to consideration of the findings upon which the sentence is to be based, based on the circumstances of the offence, but exceptional cases apart, Betts contemplates that evidence tendered in the event of resentencing is with respect to matters that have occurred since the commission of the primary offence, going to issues of progressing rehabilitation and the like.

MS BASHIR: Yes, that is certainly how it was relied on below and, with respect, your Honour, we agree with your Honour’s assessment. Your Honour, could I take the Court very briefly to tab 9 in the joint book of authorities at volume 2 to the unreported decision of Hitchcock v R [2016] NSWCCA 226 and it is a judgment of the Chief Judge at common law, Justice Hoeben.

Having set out the passages from Kentwell in paragraph 28 in the appeal book 630 - and these are the critical passages and the passages that the Crown relies on - his Honour went on to say how he understands the plurality judgment and in terms that we would, with respect, endorse and that would clarify for the courts, if necessary, how Kentwell should be understood, particularly in light of Lehn. Lehn does not cut across it. Lehn says that it is not an adjustment, it is sentencing afresh. It is the application of the sentencing principles to the – and the laws and the like to – in a case like this, the findings of fact of the sentencing judge and any others that were disturbed by the pleaded error on the appeal.

Excuse me, your Honours. Your Honours, we had intended to rely on and in accordance with the new rules I think we have to refer to the case and then hand it up but this Court’s very recent decision of Collins v The Queen on the procedural fairness point, we have given a copy to our learned friends and we would like to hand that up.

BELL J: Thank you.

MS BASHIR: The citation is Collins v The Queen  [2018] HCA 18  and we rely, in particular, on paragraphs 31 and 32 and I think it is paragraph 40 of your Honour Justice Edelman. Just in relation to “underlying” that the concessions relieved the appellant of the need to address the issues, the subject of the concessions defined the issues between them and that underpins, in our submission, a functioning adversarial system as opposed to what would occur with sentencing appeals where material tendered on resentence to be able to come in and disturb all of the factual findings and proceedings have to be approached on a de novo basis by parties.

Furthermore, the majority, at 32 and 40 – that the majority were required to give us the opportunity of being heard. And, in our submission, what Justice Leeming said at paragraph 11 – which your Honour, Justice Bell, took me to at the outset – in our submission, it was wrong. It was not joined in by the other judges and there was no such opportunity.

BELL J: I think we have that point.

MS BASHIR: Yes.

BELL J: May I just raise one matter with you, Ms Bashir, which may be thought to underlie the approach that Justice Leeming took – or the matter that concerned him – and it is at paragraph 24 of his Honour’s reasons on appeal book 67. His Honour speaks of the difficulty of sentencing on acceptance of the temporary psychosis basis because of its apparent inconsistency with the jury’s verdict. In circumstances in which there was no challenge by the respondent to the primary judge’s factual findings, one might see the force of your procedural fairness ground. What do you say to the capacity of the Court to raise with the parties – and give you an opportunity to deal with – that issue which does, on one view, seem a rather pointed one?

MS BASHIR: Your Honour, I do not know if it is answering the question – in fact, I will come back to what I was going to say second. To answer your Honour’s question, to remit the matter and leave that open to the Court of Criminal Appeal now would be, in our submission, permitting the Court and the Crown to benefit from the breach as opposed to placing the parties in the position that they were in at the time of the conclusion of the appeal. But, your Honour, just in terms of the actual way that these findings – his Honour went about these findings – close reading of the findings demonstrates that there was not a finding here, in our submission, beyond reasonable doubt, excluding the temporary psychosis.

So, going back to paragraph 20 – this is on appeal book page 66 with the heading “Prodromal phase of schizophrenia”, his Honour there simply states that he did:

not accept that DL was in the prodromal phase of schizophrenia in 2005.

And, there is nothing really higher than that under the heading of what appears to be the part addressed to psychosis. His Honour deals with prodromal phase of schizophrenia as is set out in Justice Rothman’s judgment and in the evidence that it was the oral evidence of the psychiatrist as well as their reports. There was always conceded by Dr Allnutt, and always the evidence of Dr Nielssen was that there was a reasonable possibility of a temporary psychosis or a brief episode of psychosis that had resolved.

That is simply not found in his Honour’s brief summary of the evidence at paragraphs 15, 16 and 17 here. Indeed, the primary judge’s finding was that there was some psychosis at the time of the murder. So, apart from where your Honour Justice Bell has taken the appellant to, at paragraph 24, where his Honour seems to limit this finding to a temporary psychosis which precluded his forming an intention to kill – some very particular form of temporary psychosis, as opposed to the brief psychotic episode that had an effect on capacity - “some impairment”, I think, was the language of Dr Nielssen - it really did not address those matters that Justice Rothman relied on.

KEANE J: What do you say about the last sentence in paragraph 24?

EDELMAN J: How can the “some impairment” operate to impair the intention to kill but not the intention to inflict grievous bodily harm?

MS BASHIR: Your Honour, the trial judge’s reasoning on this, which took into account all of the circumstances of the offence, and once one also brought into that the youth and immaturity of the offender, one could not simply look to, as his Honour Justice Leeming did at paragraph 23, the number of wounds, their location and it being stopped when a witness called out.

The sentencing judge looked at all of the circumstances of the offence, having seen and heard the evidence, including the oral evidence of the experts. When one looked at that, and taking into account the explanations of the other psychiatrists, which speculated as to a relationship between them, there was simply no evidence of that; some hatred for her, there was simply no evidence of that; and so on, all of the other motives, there simply was not any other explanation than some form of psychosis.

Adding into that, the evidence of Dr Nielssen that there was some impairment meant that capacity was not lacking, it was not substantial impairment. So within the verdict, it was, in our submission, consistent with the evidence of the psychiatrists that one could form that view that it lessened the intention.

NETTLE J: It is a bit like alcohol, is it not? If someone is sufficiently drunk you might not be persuaded beyond reasonable doubt that they had the intention to kill but nonetheless had the intention to inflict grievous bodily harm.

MS BASHIR: Yes, your Honour. Of course, the onus was on the Crown to prove beyond reasonable doubt that there was the intention to kill. The primary judge, having very carefully weighed all of those matters up, came to the conclusion that he was not satisfied that that onus had been established.

BELL J: His Honour’s reference to psychosis is to be understood against the opinion provided by Dr Nielssen for the purpose of sentence that expressed the view that the appellant was affected by symptoms of a psychotic illness around the time of the offence.

MS BASHIR: Yes, and your Honour there was a very detailed description of that by Dr Nielssen in his evidence. I am happy to take the Court to it, if the Court is assisted.

BELL J: Yes, all right.

MS BASHIR: This Court really does not need to go there - and also, why the opinions of Dr Allnutt and Dr Kasinathan did not stack up with all of the symptoms, that really the only explanation was at least a temporary psychosis. As I have said, I am happy to take the Court there, if it would assist the Court, but I do not know that that is necessary with this Court’s role.

Your Honours, I have strayed a long way from our oral outline and I do not know whether there is – some of these matters I may need to raise in reply, including whether or not there is further material. I think I have made the point that Dr Allnutt certainly continued to assert that he could not exclude that there had been a brief psychotic episode.

BELL J: Yes, thank you, Ms Bashir. Yes, Ms Shead.

MS SHEAD: We have provided our outline of argument to the Court.

BELL J: Ms Shead, reverting to Justice Leeming’s analysis at paragraph 11 of his Honour’s reasons, his Honour proceeds on the basis that there had been ample opportunity for the appellant to be heard on all aspects of the appeal on sentence. His Honour does seem to have taken a view about the concession in relation to the court having an unfettered opportunity to review the finding of objective seriousness as it were opening up the whole of the factual basis upon which that finding might be made.

Now, do you accept the analysis that Ms Bashir has advanced by reference to just taking us to the passages in the transcript to establish that the Crown’s ultimate position was no challenge to the factual findings made by the primary judge and no challenge to the view that while those findings were favourable, the outcome would be some amelioration of the sentence.

MS SHEAD: Your Honour, in our submission there was not an – it could not be said that the challenge by the Crown - or that there was no challenge. There was some qualification to that, albeit we accept there was some ambiguity in the way the submissions developed, both in writing and orally, but the court on this unusual sentence appeal was not bound by the position of the Crown in terms of the factual findings that, in our submission, needed to be made as a result of the re-exercise of the sentencing discretion given the post-sentence material that was before the court.

BELL J: But the post-sentence material – there was no suggestion it was sentenced on other than what is conventionally described as the usual basis in the New South Wales Court of Criminal Appeal, namely, in the event the court comes to re-sentence, it is material that can be taken into account in consideration of the appellant’s progress towards rehabilitation and the like. Now, here the use that the court was making of it was to revisit findings of primary fact that the Crown did not challenge.

MS SHEAD: Yes, your Honour, we accept that the convention in New South Wales is on the usual basis but this case is one of those exceptional cases referred to in Betts, in our submission, because of the very nature of the impact that the post-sentence evidence necessarily had on the original findings of fact by the sentencing judge because the absence of the development of schizophrenia called into question Dr Nielssen’s original opinion that the psychosis was as a result of the prodrome of schizophrenia and Dr Nielssen and Dr Allnutt both gave evidence that the later development of schizophrenia was the way that that could be confirmed.

GORDON J: But there were no opinions proffered from the psychiatrist to say what had happened and whether or not they still held their previous opinions and whether something else might have happened given the subsequent behaviour and whether or not the subsequent events, even though they are minor, may still indicate that opinion was still held.

MS SHEAD: That is so.

GORDON J: So, how is it the Court can go back and revisit something which is a finding made then without having regard to an updated opinion?

MS SHEAD: In our submission, it was open to Justice Leeming, given
the material that was placed before the court which contained a summary of eight years since the sentence proceedings of regular and consistent observation and assessment of the appellant by professionals within the custodial setting wherein his mental health and his symptoms were recorded and then summarised and placed before the Court of Criminal Appeal and it was because - - -

EDELMAN J: Even if that were all correct, how could you say that the appellant had the opportunity to address that point in light of the concession by the Crown? Is this case any different from Collins in that respect?

MS SHEAD: Your Honour, the difference here, in our submission, is that because of the importance of the evidence of the development of schizophrenia - and we need to begin from the sentence proceedings and as that issue developed and ultimately the sentencing judge found that the psychosis, as he described it, was accepted on the basis of it being the prodrome of schizophrenia, not on some other basis.

So, he relied upon Dr Nielssen’s evidence about that being the case and on Dr Nielssen’s evidence that there was a prediction of the future development of schizophrenia and albeit Dr Nielssen said at the point of sentence, which was three years later, he had expected schizophrenia to develop, did not change his opinion but expected its development into early adulthood and that had not occurred, that the absence of that evidence in the material before the Court of Criminal Appeal must have alerted the parties to the possibility that the court would be troubled by those original findings of fact and if that was the case the flow-on effect to issues such as intention, premeditation and future dangerousness would have had an impact.

NETTLE J: So, you are arguing there was no denial of procedural fairness in the particular circumstances of this case?

MS SHEAD: Your Honour, we say it was open to the Court of Criminal Appeal, given the extraordinary nature of this sentence appeal and the delay - - -

NETTLE J: I understand you say it was open but do you say that results in the conclusion that there was no denial of procedural fairness or do you accept that there was?

MS SHEAD: Your Honour, we say that it was open to Justice Leeming to proceed in the manner he did.

NETTLE J: In accordance with the requirements of the rules of procedural fairness?

MS SHEAD: Yes, your Honour.

NETTLE J: Even though, everyone was apparently proceeding upon the basis that the underlying factual findings were not to be altered, it was only an assessment of the objective criminality of the offence.

MS SHEAD: Yes, your Honour, we say that there was some challenge in the way the Crown progressed its case but we accept the manner in which those submissions developed from submissions - - -

NETTLE J: I would understand your submission if it were that yes, there was a denial of procedural fairness and it must go back to the Court of Appeal for resentencing, but the Court here should say proleptically that it might be open upon the particular evidence to reach a view that a sentence of the like that Justice Leeming imposed was correct, but I do not understand how you could possibly say in view of the way I think it was run below that there was no denial of procedural fairness.

MS SHEAD: I cannot develop that submission any further, your Honour.

GORDON J: Not only there is a denial of procedural fairness but to pick up a point I was trying to make before, you have no material upon which to make those factual findings, in the sense that there is no updated medical reports and no opportunity given to the applicant or appellant to adduce evidence to meet it.

MS SHEAD: We must accept, your Honour, that there was no updated medical report, before the court.

GORDON J: There is not even an opportunity to consider the question on what step they might have taken to meet such an argument.

MS SHEAD: Yes, your Honour.

EDELMAN J: The applicant - her counsel opens submissions on the basis that the submissions are not being made on a response to any challenge to findings of fact and there is no dispute about that.

MS SHEAD: That is so.

GORDON J: Can I ask one more question and then I will be quiet. In relation to the findings made by Justice Leeming, which ultimately seem to get to paragraphs 22 to 24, do you accept there is some difficulty about the standard adopted by his Honour, given their aggravated nature?

MS SHEAD: No, your Honour, because his Honour Justice Leeming, at paragraph 1, indicates that he agrees with the orders proposed by Justice Wilson and her Honour’s reasons include satisfaction to the criminal standard of that issue.

GORDON J: Is that right in regard to - when you compare paragraphs 20 through to 24? I think this is the point that was being made against you by Ms Bashir – “I do not accept that he was in” through to “I am concerned that it is intent”. Where do we find the analysis “I am satisfied beyond reasonable doubt”?

MS SHEAD: In our submission, we say it is implicit in what his Honour is saying there and when your Honour goes to page 98 of the book, at paragraph 148, there is Justice Wilson’s conclusion beyond reasonable doubt that the appellant was not psychotic at the time. Then at paragraph 150 on page 99 her Honour said - - -

GORDON J: No “other rational conclusion is open”, “irresistible conclusion”.

BELL J: In a sense, it is his Honour’s conclusion at paragraph 24 where he notes that he has given consideration to the existence of a reasonable possibility of temporary psychosis and says he cannot conceive of a temporary psychosis leaving the appellant with the capacity to have an intention to inflict grievous bodily harm falling short of the intention to kill. On that view, his Honour might be taken to be applying the criminal standard.

MS SHEAD: Yes. Being unable to conceive, as your Honour Justice Bell said, is a fairly high threshold and we say that finding or consideration of Justice Leeming is certainly open on the evidence. Your Honours, in terms of the material utilised by the Court of Criminal Appeal on the resentencing exercise, in our submission this case may be distinguished from Betts and it is accepted generally that evidence for the period since sentence usually relates to an offender’s progress towards rehabilitation, but because this case was unusual, given the passing of the additional eight years and the significance of the psychiatric evidence, which was uncertain at the time of sentence, this meant that the additional evidence had the capacity to inform the Court of Criminal Appeal’s findings beyond rehabilitation.

The evidence here, unlike the evidence in Betts, was not new evidence; it was evidence of post-sentence conduct or events not available at the time of sentence. So this case involved no attempt to revisit earlier forensic decisions. The Crown had challenged the evidence on sentence or run a new and different case, relying on evidence that would have been available at the time of sentence and given in the intervening period there had not been the expected diagnosis of schizophrenia into early adulthood, the significance of that evidence necessarily went beyond an assessment of the offender’s progress towards rehabilitation.

As a matter of convention usually post-sentence conduct will not impact on findings of fact. In the very particular circumstances here, given the passage of time and the state of the psychiatric evidence at the time of sentence, the material, in our submission, necessarily went beyond that and it was open to the majority of the Court of Criminal Appeal to so find. Unless I can assist, those are our submissions.

BELL J: Thank you, Ms Shead. Ms Bashir, anything in reply?

MS BASHIR: Your Honours, just very briefly. Turning to Justice Leeming’s paragraph 1, appeal book 61, the agreement with the orders proposed by Justice Wilson and reasons were subject to what follows. Then going back to paragraph 24, we would simply make the point that there was at the very least a reversal of onus here with the consideration of whether there is a reasonable possibility rather than whether the Crown had established that finding beyond reasonable doubt.

Your Honours, in relation to both that – I have already said this – but also Justice Wilson’s findings at 145 to 148 there was simply no analysis or reference to the evidence of both Drs Allnutt and Nielssen on temporary psychosis. Justice Wilson’s analysis was devoid of that and the acceptance of the reasonable possibility.

Going back to the proposition as to this being an exceptional case, there was nothing exceptional apart from the fact that it had been a very long time as to the nature of the evidence here tendered on resentence. If the submission of the respondent is correct, in our submission it could lead to anomalous outcomes and inhibition of applicants who have meritorious appeals updating the court on post-sentence events for use in resentencing owing to the fear of all factual findings of significance being revisited.

The respondent’s submissions in their written submissions appear to contend that that could occur upon resentencing – summaries of material such as details of treatment and management in custody of health issues, which is normally a Betts-type use only allowed.

In relation to the material here, the last and only psychiatric report that was annexed to Ms Velasquez’s affidavit read below was the one prior to his scheduling – that is, that brief period of psychosis. There was no revisiting of the primary psychiatric evidence or any analysis of it and the court, in our submission, without that could not undertake what it did in this case.

Your Honours, just on the point that all that the primary judge’s finding of some psychosis turned on was Dr Nielssen’s evidence of prodromal schizophrenia is to mischaracterise the extent of Dr Nielssen’s evidence. Dr Nielssen also gave evidence of a brief psychotic episode which had resolved by the time he came into custody with some observations. A detailed analysis of the evidence shows that it is in the first two weeks to a month that there are still demonstrable symptoms of psychosis in custody. Unless there is anything further.

BELL J: Thank you, Ms Bashir. The Court will reserve its decision in this matter.

Adjourn the Court to 10.00 am on Tuesday, 15 May.

AT 11.03 AM THE MATTER WAS ADJOURNED