DL v The Queen [2018] HCA 32

HIGH COURT OF AUSTRALIA

BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ

DL APPELLANT

AND

THE QUEEN RESPONDENT

DL v The Queen [2018] HCA 32 8 August 2018 S309/2017

ORDER

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.

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.